Former NYT Editorialist Cohen Insists First Amendment Free Speech Protection Is 'Vague'

In his June 9 "case study" feature for, Adam Cohen, formerly of the New York Times editorial board and Time magazine, tackled the question "Are Liberal Judges Really 'Judicial Activists'?"

Cohen's short answer: yes, but so are conservative judges, and it's the conservatives on the Supreme Court that have been on an activist kick lately.

To bolster his argument, Cohen complained that judges must of necessity make judgment calls about vague elements of U.S. law and the Constitution.

You know, vague stuff like, wait for it, the First Amendment (emphases mine):

Roberts and the rest of the court's five-member conservative majority have overturned congressional laws and second-guessed local elected officials as aggressively as any liberal judges. And they have been just as quick to rely on vague constitutional clauses.


Earlier this year, in the Citizens United campaign-finance case, the court's conservatives struck down a federal law that prohibited corporations from spending on federal elections. Once again, they relied on a vaguely worded constitutional guarantee.

That "vaguely worded constitutional guarantee" reads as follows:

Congress shall make no law... abridging the freedom of speech, or of the press.

What part of that is vague? Congress has no business abridging the freedom of speech, or of the press. The amendment says nothing about whose freedom of speech, and congressional attempts to fence in that freedom of speech to individuals alone, and not corporate entities, is a pretty clear violation of the text of the amendment's prohibition against speech abridgement. Indeed, as the majority in Citizen's United made clear:

Speech restrictions based on the identity of the speaker are all too often simply a means to control content....The First Amendment protects speech and speaker, and the ideas that flow from each.

Cohen also considers "vague" the 14th Amendment's equal protection clause:

In a 2007 case, the conservative majority overturned voluntary racial integration programs in Seattle and Louisville, Ky. Good idea or bad, the programs were adopted by local officials who had to answer to voters. But the conservative Justices had no problem invoking the vague words of the Equal Protection Clause to strike them down.

In that controversy, the two school systems involved were purposefully engineering the racial demography of schools within their districts to correct what was perceived as racial imbalance. In other words, some schools were too white, others too black, in the eyes of policymakers.

Whereas Brown v. Board ruled that de jure segregation was a violation of the 14th Amendment protections because segregation by law was inherently unequal, liberal proponents of the Seattle and Louisville plans defended the respective school districts' obsession with the skin color of its school populations. 

Here's how Washington Post reporter Robert Barnes recorded the logic of Chief Justice Roberts in the Court's opinion in Parents Involved in Community Schools v. Seattle School District No. 1 et al.:

"Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin," Chief Justice John G. Roberts Jr. wrote for a plurality that included Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. "The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again -- even for very different reasons."

He added: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." 

Those crazy conservative justices and their radical activism, upholding the implications of Brown v. Board of Education!

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