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.

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.

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.

Read more at The Daily Beast.