The First Amendment Is the Greatest Defense for the Powerless and Marginalized

The prominent feminist legal scholar Catharine MacKinnon in 2020 published a law review article making an argument that has become depressingly common—that the First Amendment has been transformed over the last century from “a shield of the powerless to a sword of the powerful,” including “authoritarians, racists and misogynists, Nazis and Klansmen.” MacKinnon is by no means alone in this opinion.

The idea that the First Amendment has been “weaponized” by the powerful has gained increasing traction in the digital age, when social media can supercharge political tribalism and amplify extreme voices. “Free Speech Is Killing Us” read the headline of a 2019 New York Times op-ed by New Yorker reporter Andrew Marantz, and similar arguments have been published frequently in elite mainstream outlets, including The New York Times Magazine and the Los Angeles Times.

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But look closer and the facts on the ground paint a very different picture than the breathless narratives of “weaponized” free speech. The truth is that core First Amendment principles of viewpoint and content neutrality—which mean the government may never restrict speech simply because officials disagree with or disapprove of a particular opinion, idea, or topic—have been essential for unconvinced progressives like MacKinnon to speak, read, perform, teach, and protest in states where majorities are hostile to progressive ideas.

In Llano County, Texas, a group of concerned citizens gradually morphed into an official censorship board, removing “inappropriate books” without input from librarians. In true authoritarian fashion, they even barred their fellow citizens from attending their meetings. The 17 books that these citizen-censors got banned as “inappropriate” included works on LGBT+ issues as well as historical books about the origins of the Ku Klux Klan. But on March 30, a federal judge in Texas issued a preliminary injunction ordering the books to be returned to the library’s shelves. The judge reminded the censors that the First Amendment “protect[s] the right to receive information,” and it “prohibits the removal of books from libraries based on either viewpoint or content discrimination.”

That same month in Tennessee, a Trump-appointed judge delayed the implementation of a law criminalizing public drag performances on First Amendment grounds. The judge sided with the plaintiff—a Memphis-based LGBTQ theater group—preliminarily finding that the law’s prohibition of expressive conduct was impermissibly content based as well as overly broad and vague. The judge concluded that “the record here suggests that when the legislature passed this statue, it missed the mark.”

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In Florida, the First Amendment has provided the most important protective armor for those on the wrong side of Gov. Ron DeSantis’ “War on Woke.”

Several elements of DeSantis’ controversial “Stop W.O.K.E. Act” have been preliminarily halted by courts due to First Amendment concerns. In November, a federal court ordered Florida’s public universities not to enforce the law, the tentacles of which reach into university classrooms just as they reach into K-12 classrooms and private employers' trainings.

“The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoint,” wrote U.S. District Judge Mark Walker. “Defendants argue that, under this Act, professors enjoy ‘academic freedom’ so long as they express only those viewpoints of which the State approves. This is positively dystopian.”

Judge Walker also had to safeguard the First Amendment right of Floridians to peacefully protest.

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In the wake of Black Lives Matter protests following the murder of George Floyd, the Florida Legislature passed a 2021 “anti-riot” law that was written in such “vague and overbroad” language, the judge wrote in his decision, that authorities could have used it to prosecute peaceful protesters or people close to a demonstration that turned violent. “If this court does not enjoin the statute’s enforcement,” wrote Walker, “the lawless actions of a few rogue individuals could effectively criminalize the protected speech of hundreds, if not thousands, of law-abiding Floridians.” The law remains blocked pending an authoritative state supreme court interpretation.

These recent decisions convincingly demonstrate that the First Amendment serves an essential role in protecting minorities against majoritarian intolerance and revanchism.

While it’s true that the First Amendment permits speech that many progressives find abhorrent and discriminatory, that’s a feature not a bug of robust and principled free speech doctrine. And it’s not based on “white supremacist” or “right-wing” ideology. Rather, this doctrine is informed by a potent mix of universalist ideals and the lived experience of a nation, including groups and individuals who have felt the oppressive consequences when these ideals have been violated or selectively applied.

Thurgood Marshall’s illustrious career highlights the mutually reinforcing relationship between free speech principles and the fight for racial justice. Marshall was the legal mastermind of the NAACP’s highly successful campaign to transform the First Amendment into a legal shield for the civil rights movement’s ability to protest peacefully. While serving as the Supreme Court’s first black justice, Marshall penned the majority opinion in Mosley v. Chicago, which declared, “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” It’s impossible to believe that Marshall’s opinion reflected a wish to punch down on the people he had devoted his career to defending. To the contrary, the immediate beneficiary of that ruling—along with so many landmark free speech rulings—was an African American who was protesting racially discriminatory policies.

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Fortunately, there are still many prominent voices committed to both freedom and equality who recognize that these values are indispensable pillars of justice. When Stanford Law School Dean Jenny S. Martinez wrote a letter denouncing students’ disruption of a talk by a conservative federal judge last month, she explicitly highlighted the importance of content and viewpoint neutrality for the weak and marginalized.

“I can think of no circumstance in which giving those in authority the right to decide what is and is not acceptable content for speech has ended well,” Martinez reminded her law students. “Indeed, the power to suppress speech is often very quickly directed towards suppressing the views of marginalized groups.”

Martinez, like many progressives and liberals before her, understands that free speech has been and continues to be a powerful shield protecting the marginalized and the oppressed. Across America today, the real danger is not the weaponization of free speech—as some like MacKinnon contend—but its suppression by powerful lawmakers and intolerant majorities. Fortunately for Americans of all stripes, judges continue to ensure that free speech remains an engine of both equality and freedom.

Jacob Mchangama is the CEO of the Future of Free Speech Project, Research Professor at Vanderbilt University, and author of Free Speech: A History From Socrates to Social Media.

Nadine Strossen was national president of the American Civil Liberties Union (ACLU) from 1991-2008, and is professor emerita at New York Law School. She is the author of HATE: Why We Should Resist It with Free Speech, Not Censorship.

Both are Senior Fellows at the Foundation for Individual Rights and Expression (FIRE).