Liberty in Liberals' Eyes

In the aftermath of last November's electoral disaster, it's been fashionable for liberals, looking for some internal incoherence as the root of their downfall, to re-examine their roots. Traditional constituencies, such as the "economic liberals" involved in unions and advocacy of entitlements, angrily blame activists for gay rights and affirmative action for alienating "Reagan Democrats." Meanwhile, these social liberals scorn economic progressives for advocating outdated, class-warfare rhetoric inapplicable to the technology-driven economy of the 21st century.

If nothing else positive comes from it, the Supreme Court's recent 9-0 decision against gay activists in the St. Patrick's Day Parade case demonstrates that this finger-pointing is both unwise and unnecessary. Judge Souter's "First Amendment absolutist" opinion places the Supreme Court squarely on the side of powerful interests which have thwarted the liberal agenda for years. The roots of oppression run deep, but a considered response to this sociologically ignorant jurisprudence can help lead liberalism out of its current quarrels and into a coherent advocacy role in the 21st century.

As Suffolk University Law School Professor Marc Perlin notes, the "right to equal access and the right to free speech have been clashing for many years." Although this formulation is slanted, the meaning is rather clear. Courts can either endorse a laissez-faire, hands-off conception of the "right to free speech," or they can try to actively ensure that this right is meaningful and accessible to all individuals in society.

In the case at issue, the court claimed that the veterans' council had the unencumbered right to present their expression in a parade, and that they gay rights groups had no commensurate right to access of these facilities.

Essentially, the Supreme Court gave a resounding endorsement of this individualistic, atomistic conception of a free speech right and ignored the implications of the First Amendment for society as a whole. The Court laid the foundation for its latest slam of social liberals was laid in a 1976 case which at the time was perceived primarily as a setback for economic liberals: Buckley V. Valeo.

Cited by John Rawls as one of the worst examples of constitutional jurisprudence in the 20th century, Buckley overturned federal limitations on campaign finance reform and permanently impaired poorer individuals' right to equal access in the political arena. As Phil Gramm and his best friend in politics, `easy money,' start gearing up for the New Hampshire primary, it's not hard to see the direction Buckley set for American politics in the late 20th century.

In each case, the Supreme Court opted for an entirely individualistic conception of free speech with no concern for its implications for society as a whole. In each case, the Court crippled the government's ability to fairly structure access to forums, such as public streets and political campaigns, which it has rightfully regulated for years. And in each case, the interlocking structure of ostensibly conflicting libertarian and authoritarian rhetoric becomes increasingly clear.

Ironically, the rights rhetoric now deployed by conservative jurists has an exceptionally liberal pedigree. Ever since classical liberals like Locks and Kant fought for individual rights and democratic processes, their work was conceived primarily as an effort to limit the power of overbearing state authorities. They conceived of individuals' fundamental rights as primarily negative liberties--rights to individual action untrammelled by others' interference.

Civil rights advocates have tended to follow this style of advocacy in recent years. The great free speech and civil rights cases of the Warren Court tended to cast rights in terms of one heroic litigant taking on a corrupt system and winning respect for an essentially negative liberty. The right not to be discriminated against, or not to be kept from speaking, were at the root of such great cases as Walker v. Birmingham or New York Times v. Sullivan.

But this conception of negative liberty is only the first step toward fulfilling the Constitution's promises. The Court now needs to realize that positive entitlements to communicative power are part of the fabric of our democratic process. In the case of private campaign finance, we now effectively cede control of elections to the markets' powers that be. Yet the market needs laws in order to operate, and state action is logically prior to and normatively superior to any economic activity.

The situation in the parade case is even clearer; the city has the right to regulate the time, place and manner of the use of any of its public forums. And in order to make the First Amendment applicable to all citizens--instead of merely a constitutional front for the actions of the self-serving and discriminatory--municipal authorities have an obligation to structure such events in order to ensure that the interests of the oppressed in society are not slighted.

The fact that such liberal law scholars as Ralph S. Tyler Jr. Professor of Constitutional Law Laurence H. Tribe '62 have supported the Supreme Court's ruling in the case shows how radically progressive judicial perspectives need to be altered in the face of new sociological realities. Yet liberals can't expect the courts to solve all their problems. Hopefully, some grass roots political action can lead Boston to give the parade permit to a more inclusive group of marchers in coming years. And perhaps in the midst of reflection on these efforts, economic and social liberals will begin to recognize the deep social basis of their common ground.