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American Constitution Society and Federalist Society co-sponsor panel on social justice and the First Amendment

October 02, 2018

On October 1, Penn Law hosted a panel of leading First Amendment lawyers and thinkers for a wide-ranging discussion that grappled with complex questions at the intersection of the First Amendment and social justice. The event, “Is the First Amendment Good for Social Justice?”, was co-sponsored by two Penn Law student groups, the Federalist Society and the American Constitution Society for Law and Policy, as part of this year’s Public Interest Week programming.

The panelists were Joe Cohn L’04, Legislative and Policy Director of the Foundation for Individual Rights in Education; Catherine Sevcenko, Director of Legal Strategy for Equal justice Under Law; Shelby Emmett, Director of Free Speech for the American Legislative Exchange; Mary Catherine Roper L’93, Deputy Legal Director of the American Civil Liberties Union of Pennsylvania; and Tobias Barrington Wolff, Professor of Law and Deputy Dean for Alumni Engagement and Inclusion at Penn Law.

Throughout the discussion, the panelists each shared their unique perspectives on the most pressing problems relating to free speech and social justice today.

Professor Wolff discussed recent high-profile cases where the right to free expression came into conflict with anti-discrimination laws and LGBT rights, as in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission where the owner of a bakery asserted a First Amendment right to refuse to bake a cake for a same-sex wedding.  

Wolff acknowledged that the First Amendment “protects a phenomenally important set of principles.” However, he said, “there’s a danger in that people think the First Amendment … protects anything. They think the First Amendment means that any time you communicate with another human being, you have a right to resist whatever laws you want to resist. And it can’t mean that. The First Amendment can’t swallow everything.”

Roper similarly cautioned against taking an overly expansive approach to questions of free speech, noting the distinction between speech that the law actually prevents and speech that — while legally permitted — might be better left unsaid.

“I’ve had so many discussions with people who’ve said, ‘it’s my right to say that,’ and to them that’s the end of the conversation. As a First Amendment lawyer, I’d like to suggest that that should not be the end of the conversation, but the beginning,” she said. 

As the discussion continued and panelists took questions from students, the conversation often turned to Charlottesville and the white nationalist march that took place there last summer.

Cohn suggested that while the Charlottesville marchers offered a prime example of what might be considered hate speech, the First Amendment protection for their demonstration served at least one useful purpose.

“I think there’s actually a tremendous value that we don’t often talk about in terms of why a lot of hateful speech is protected, in that it creates an environment where that speech is out in the open. I think that’s important,” he said. “I would much rather know the extent of the problem. It’s important to know that there are people in this country who feel that way.”

Sevcenko pushed back, noting that the minorities and other groups targeted by the Charlottesville marchers were already aware of white nationalists and their views because they contend with them on an almost daily basis. “It may be news to folks who look like me, but it is not news to folks that don’t,” she said.

Sevencko’s comments reflected one of the issues that Emmett raised during the panel: the lack of diversity among First Amendment lawyers, and its effect on how much of the American public views arguments for protecting free speech. 

“The country and the demographics of our country are changing, but the [First Amendment law] field itself is not reflecting that,” said Emmett. That lack of diversity leads a failure to understand the perspectives of many Americans, she argued, such as when some free speech advocates dismiss the impact of hate speech because they have never personally experienced it.

She suggested that even well-intentioned pro-First Amendment rhetoric can be alienating if it does not account for the experiences of diverse groups of people. “If you want more people in our country to embrace and understand the importance of free speech, we as a field have to do a better job of getting out of our own way,” said Emmett.

Nevertheless, the panel largely agreed that efforts to curtail free speech in the United States could pose significant dangers to social justice movements.

Sevcenko argued that the suppression of speech in university settings in particular represented a setback for the goal of reforming society. In particular, she cautioned against superimposing the legal framework of the First Amendment onto the university environment, as it might be insufficiently protective of some speech.

“When you take that established set of legal principles and you use it as a template in a university setting, what you’re doing is you’re stifling what the university is all about, which is the free exchange of ideas and, more importantly, envisioning what our society should be and where we should be taking it. And that’s what social justice is all about,” she said.

Speaking more broadly, Cohn argued for the importance of free speech in society at large.

“We can’t have social justice without robust free speech protections. It has been the foundation of every successful social justice movement in history,” said Cohn, pointing to the Civil Rights movement of the 1960s and the push for marriage equality in recent years. “Democracy is majority rule, so it’s critically important for people who will lose the votes consistently to have ability to change minds. You can’t do it if you can’t speak freely.”

Roper agreed, but added an important caveat that encapsulated the relationship between social justice and free speech: “The First Amendment is a necessary tool for any social reform movement. It is also a necessary tool for people who wish to prevent social reform,” she said.

“The First Amendment does not equal social justice — don’t confuse the two.”