CollectiveLiberty

JoshBlackman

In McCutcheonv. FEC,Justice Breyer referredto thefreedomofspeech,notonlyasanindividuals rightto

engage in political speech,butalsothe publicsinterestinpreservingademocratic orderinwhich collectivespeech
matters. This notion of a collective First Amendment was emphatically rejected by the majority opinion that
explained that the First Amendment safeguards an individuals right to participate in the public debate through
political expression and political association. Chief Justice Roberts retorted, there are compelling reasons not to
definetheboundariesoftheFirstAmendmentbyreferencetosuchageneralizedconceptionofthepublicgood.
The conflict between individual liberty and collective welfare is not new. But, the McCutcheon opinions
signal a shifting trendinprogressiveandconservative thought on theFirstAmendment,andindividual libertymore
generally. Three important examples illustrate this divide. First, the speech rights of corporations who engage in
advocacy once thought the role ofindividuals. Second, thereligiousliberty ofcorporationsthatexercise faith,once
thoughtonly thedogmaofbelievers.Third,the freedom ofassociationofgroups,who use theirassemblyto thwart,
ratherthanadvanceperceivedprogressivegoals.
Historically, liberals tended to favor broad conceptions of individual rights, with respect to protecting
unconventional and unpopularspeech, minorityreligiousgroups, andthe rightto privateassociation. Conservatives,
in contrast,oftenopposedsuch rights tothe extenttheyimpeded thepreservationof traditionalsocialnorms. Butin
recent years there has been a reversal, as the right has coopted the mantle of individual liberty against claims of
governmental intrusionintotheirtimehonored institutions.But forthe left,arobustfreedomofspeech,religion,and
associationno longer servingthe causesofsocialjusticecannowmoreeasilybesubordinated tothe generalized
conceptionofthepublicgood.
First, with respect to free speech, the progressive preferenceforcollective libertyisevidentin theACLUs
decision not to file a brief in McCutcheon, reflecting a divide among its members. As Floyd Abrams opined, the
dissent offers a very troubling vision of free expression and is deeply disquieting. With respect to speech,
modernday liberalism seems to be drifting away from protecting individual freedom, and more towards
constitutionallyguaranteeingequality.Conservativesseizeonexpandedspeechrightstorepelthiscreepingcontrol.
Second, with respect to free exercise, we have witnesses a bold transformation of the Religious Freedom
RestorationAct(RFRA).IntroducedinCongress by SenatorsKennedy andRep.Schumer,andsignedintolawby
President Clinton in 1993, RFRA was designed as a legislative override of Justice Scalias unpopular decision in
Employment Division v. Smith. The law was designed as a shield to protect religious minorities, such as Native
Americans who use sacramental peyote, from laws that infringe on their exercise. Fastforward two decades, and
RFRA is now wielded asasword toenforcethe religiousidentitiesof corporations,that cannot beburdened by the
Affordable Care Acts contraceptives mandate. In her dissent in Burwell v. Hobby Lobby, Justice Ginsburg
highlighted thedivide,focusingonhow theCourtsaccommodation ofthe religiouslibertiesofHobbyLobbywould
have an impact on thousandsof women whodonotsharethecorporationowners religiousfaith.ForGinsburg,
the collective needs of society for covered contraception easily trumps religious liberty. The majority, which
grudginglyconcededthatcoveringcontraceptionwasacompellinginterest,viewedthecalculusexactlybackwards.
Third, concerning thefreedomof association,the importanceofprivateassemblyhasnow inmany contexts
given way to compulsion for groups not advancing the goals of social justice. During the Civil Rights Era, the
membership lists of the NAACP, and the right toprivatelyassociatewere heldsacrosanct. Buttoday,priorities are
reversed.Progressives seektounmaskthosewhosignedpetitionsopposingsamesexmarriage, subpoenapastorswho
deliveredsermonsopposingLGBTlaws, andworkto compel religiousgroupsto admitmembersantitheticaltotheir
beliefs.Inresponse,conservativenowcloakthemselvesbehindthoseWarrenCourtfreeassociationcases.
Collective Liberty chronicles the juxtaposition of positions among liberals and conservatives between
collective,andindividual views ofrights,andexplainswhatthis meansfor thedevelopmentof theFirstAmendment
ontheRobertsCourt,astherightsoftheindividualcontinuetoclashwiththerightsofthecollective.