Jeff Sessions wants a First Amendment that celebrates robust criticism of everyone but himself.

Jeff Sessions Wants a First Amendment That Celebrates Robust Criticism of Everyone but Himself

Jeff Sessions Wants a First Amendment That Celebrates Robust Criticism of Everyone but Himself

The law, lawyers, and the court.
Sept. 29 2017 1:16 PM

The Eggshell Attorney General

Jeff Sessions wants a First Amendment that celebrates robust criticism of everyone but himself.

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U.S. Attorney General Jeff Sessions answers questions at the Georgetown University Law Center on Tuesday in Washington.

Win McNamee/Getty Images

Almost every word of Attorney General Jeff Sessions’ speech in praise of the First Amendment at Georgetown University Law Center earlier this week would have been worth taking seriously if uttered by someone else under other circumstances. Sessions’ speech, though, was offered up in a room full of prescreened students who asked him prescreened questions while political demonstrators outside were penned off in “free speech zones.” Sessions’ prepared remarks, full of soaring citations to Martin Luther King Jr. and Justice Louis Brandeis, might have been worth at least a reckoning on their own terms, were it not for the fact that his parody of a rant about eggshell students and campus safe spaces was delivered by an eggshell attorney general in a specially designed campus safe space.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

There’s already been a lot of reporting on how badly Georgetown Law handled the Sessions speech: Joe Patrice at Above the Law notes that school officials waited until the last possible instant before announcing the event and rescinded tickets for any student not enrolled in the classes of the professor who sponsored it. Faculty who asked for a courtesy ticket, meanwhile, were told they could not attend. Randy Barnett, director of the Georgetown Center for the Constitution—which organized the speech and controlled all access to it—confirmed to USA Today that it was “a closed, invitation-only” gathering. He said this was in order to promote a “civil” discussion.

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So when the attorney general waxed poetic about “the right of every American [to] the free, robust, and sometimes contentious exchange of ideas” it was just not possible to take him seriously. He was not only singing this tune in a safe space free from embarrassing brushes with any actual robustness or contentiousness; he was somehow simultaneously and without a hint of irony condemning campuses for allegedly creating “an echo chamber of political correctness and homogenous thought, a shelter for fragile egos.” Sessions was literally condemning “free speech zones” and talking about the Justice Department’s role in a lawsuit over “free speech zones” while protesters were confined to “free speech zones.” He was literally quoting Justice Robert Jackson—“If there is a fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion”—while defending a president who wishes to fire NFL players who won’t stand and honor the anthem and the flag. The whole enterprise was hilarious in every single way, save for the fact that it promoted the fiction that millennials hate free speech, that only the left behaves in speech-suppressive ways, and that snowflakes are only really snowflakes if they snowflake on the other side.

Having seen the Sessions DOJ prosecute someone for laughing at Jeff Sessions, it’s hardly surprising that he wants a First Amendment that celebrates the robust criticism of everyone but himself. Watching Sessions’ DOJ going after private Facebook information for anti-Trump activists, it’s hardly surprising that these much-vaunted free speech protections flow in the direction of Trump officials and away from Trump dissenters. It is, nevertheless, somewhat more surprising to see that the burgeoning theory that conservatives deserve free speech protections, and liberals deserve none, is becoming yet another normalized part of this abnormal administration. After all, if you cannot even see anyone from the opposing side, you certainly have no reason to hear their voices. And what was most striking about Sessions’ rousing performance at Georgetown is that he didn’t seem to even notice or concede that an opposing side exists. This has very real practical effects for his DOJ and for our rule of law.

Read, for example, the work of my friend Garrett Epps on the stunning DOJ brief filed in the Masterpiece Cakeshop v. Colorado Civil Rights Commission “religious baker” case to be heard at the Supreme Court this fall. The Justice Department evinces no solicitude at all for the injuries of anyone but the Christian baker at issue, the one who seeks not to be compelled to make a wedding cake for a gay couple. Sessions’ Department of Justice, for instance, argues that Colorado hadn’t yet acknowledged the rights of marriage equality at the time of the cake incident, so the fact that such equality is now a constitutional right should not even be considered. It’s a hard case, as Epps notes. But it’s vastly easier if you simply pretend away the interests of the other side. For this DOJ, there is nobody else on the radar. Nobody else exists.

When talking about the First Amendment and the brutal and challenging clash of diverse opinions, a big part of that is the obligation to listen to ideas that might be uncomfortable or even painful to hear. But that relationship presupposes that we can see or acknowledge that there are speakers on the other side. More and more, it feels as though the Trump administration’s aperture has narrowed to the point where someone can espouse First Amendment values while viewing genuine opponents as wholly other, foreign, and not even worth giving the chance to respond. This is the framing for the NFL protests (Trump has free speech rights, the players do not) and the framing for Sessions’ speech about student speech.

There’s little doubt that Jeff Sessions meant it when he importuned the students before him to stand up for free speech and to spend their law school careers refining their own views in opposition to conflicting ideas. But it’s far from clear that he realized how absurd it was to say those things at an event that excluded faculty and students with different viewpoints. Admonishing law students to spend their time testing their pre-existing views against alternate ideas while engaging in almost daily acts of punishing and suppressing speech and expression of alternate ideas is insane. I’m not sure that the sparking, hotly contested debates between people who hate marriage equality and the people who really, really hate marriage equality is the sort of dispute Justices Jackson and Brandeis were thinking about.

And what is terrifying is the possibility that Sessions truly believes that people with different viewpoints don’t even exist anymore in any tangible application. These dissenters are all just enemies of the state. They are no more real to him than ghosts. More and more, Sessions is constructing a Justice Department in which the other side is just noise to him, not speech. And if you cannot even see protesters and political dissidents, it’s hardly a surprise that you cannot hear them either.

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