PARTISANS UNITED AGAINST FREE SPEECH.

• Author: Welch, Matt
• Position: POLITICS

THE SUPREME COURT this June expanded First Amendment protections to cover public employees who don't want the state extracting union dues, voters who seek to wear political clothing or paraphernalia at the polls, and some businesses that chafe at being told by the government that they must display certain information. This has been, The Volokh Conspiracy's Jonathan H. Adler concluded, "the most speech-protective Supreme Court in our nation's history."

The citizenry, meanwhile, was moving in the opposite direction. In a memo leaked in June, staffers at the American Civil Liberties Union (ACLU) agonized that the organization's fabled commitment to the First Amendment might have a "harmful impact on the equality and justice work to which we are also committed." All summer long, rightists and leftists took turns trying to get their political opponents fired from their jobs and banished from social media platforms over speech deemed intolerable. Even on the Supreme Court, Justice Elena Kagan warned that her conservative colleagues were "weaponizing the First Amendment."

A gap that wide--and widening by the day--between the constitutional parameters of free speech and the cultural support for the stuff is not tenable in the long term. That is, if you take to heart the main argument of Barry Friedman's 2009 book The Will of the People, which is that the Supreme Court, rather than hewing doggedly to principle, is in fact sensitive to public opinion, ratifying post facto where the culture has already gone.

If today's mores produce tomorrow's First Amendment jurisprudence, we might be in for a rough patch ahead, particularly considering the retirement of Justice Anthony Kennedy, whom Adler describes as "the most speech-protective justice" on the Court. But actually, we don't have to wait to see whether the cultural turn against free speech will filter into law and the enforcement thereof. It's already happening.

The most ominous recent example is the Allow States and Victims to Fight Online Sex Trafficking Act, which was passed overwhelmingly by Congress (388-25 in the House, 97-2 in the Senate) and then signed into law by President Donald Trump in April, even though it holds web publishers retroactively liable for illegal transactions conducted between their users. The law was opposed on First Amendment grounds by the ACLU, the Electronic Frontier Foundation, and such civil libertarians as Sen. Rand Paul (R-Ky.) and Sen. Ron Wyden (D-Ore.), the...