The Tempting of America

by Robert H. Bork

  Indeed, bringing Dr. King’s name into the question of the legality of advocating lawbreaking was merely part of the tactic of claiming that I was opposed to civil rights. If the advocacy of civil disobedience is to receive first amendment protection, that protection cannot be confined to Dr. King. The courts cannot apply the first amendment selectively, deciding which advocate of law violation is a good man and which a bad man, extending the protection of the Constitution to the former but not the latter. That is not law but politics, and not of a very respectable type at that. Nor does it seem satisfactory to frame a rule that all advocacy of lawbreaking is protected by the first amendment. There may well come times when society cannot tolerate such a rule. Inciting a mob to lynch a prisoner would be protected speech under such a rule. The Supreme Court has never enunciated such a standard or even flirted with it. After trying various formulas, the Supreme Court in Brandenburg v. Ohio (1969) adopted the principle that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”55 That rule, which the preparers of the Biden Report would presumably endorse, and which was adopted by a liberal Supreme Court, would not protect one who advocated a sit-in at a segregated lunch counter if the segregation was lawful and the advocacy produced a sit-in.

  The claim that I had suggested a legal formulation that would have punished advocacy of illegal conduct that the Supreme Court would protect was, as the example given shows, false. But, in the academic writings referred to, I did suggest that there was no reason for courts to protect any advocacy of law violation since that is merely advocacy of a piecemeal overthrow of the democratic system. Such speech, in a republican form of government, has little, if any, value. Whether it should be tolerated as a matter of prudence seems to me essentially a political rather than a judicial choice. The law was once very close to that position, and there was no occasion to make it appear that what I had written some time ago was outside the realm of respectable discussion. And that is what the old article relentlessly cited was, a theoretical discussion by a law professor. When I told the Judiciary Committee that as a judge I would abide by the current state of the law, that was treated as a conversion made in an effort to be confirmed.

  But there was a public record on freedom of speech and the press under the first amendment that came after my one theoretical writing on the subject. I extended the press’s protection from libel actions in cases such as Oilman v. Evans56 and McBride v. Merrell Dow & Pharmaceuticals Inc.57 In Telecommunications Research & Action Center v. FCC,58 I not only held that the fairness doctrine, generally disliked by broadcasters and approved by many conservatives, was not statutorily required, but called on the Supreme Court to reexamine its position that the electronic media may be constitutionally subjected to restrictions that cannot be applied to the print media because of the first amendment. In Quincy Cable TV v. FCC,59 I joined a decision that the restrictions, in my view wrongly, applied to the electronic media did not apply to cable television. In FTC v. Brown & Williamson Tobacco Corp.,60 I wrote an opinion protecting commercial advertising. These and other decisions and opinions were said to show nothing about my first amendment views because the protection was given to business interests, which libel defendants, being media corporations, usually are, or to conservatives. That dismissal of my work as a judge rings hollow since in Lebron v. Washington Metropolitan Area Transit Authority61 I found that an artist who wanted to put up in the subways stations a poster harshly critical of Ronald Reagan had a first amendment right to do so. And in Finzer v. Barry,62 I found against the free speech claim of a conservative Episcopalian priest who wanted to demonstrate against the Soviets immediately outside their embassy. Those decisions cannot possibly be explained by my personal views. The poster denouncing Reagan, the man who had appointed me to the Court of Appeals, seemed to me harsh and untrue, and I have never been particularly known for sympathy to the Soviet government. People may legitimately disagree with any or all of those decisions, but one thing they cannot truthfully say is that the pattern shows a hostility to freedom of speech or is explained by a preference for conservatives.

  This analysis of the charges made could be extended indefinitely, for the number of charges made sometimes seemed to approach the infinite, and a great many of them were more vicious than those recounted here. To recount and rebut all of them would fill an entire book, but that is not my object. The purpose of this chapter is to demonstrate that key charges were not only false but should have been, must have been, known to be false by the individuals and groups that made them and repeated them even after they were answered with facts. That, as I said at the outset of this book, is the way the war for control of our legal culture is being fought.

  *My opinion noted that the company’s action might constitute an unfair labor practice or a form of employment discrimination under other statutes. Indeed, the women and the union had sued American Cyanamid under the law prohibiting employment discrimination and the company had settled the case.

  *The case was Oil, Chemical & Atomic Workers Int’l Union v. American Cyanamid, Co., reported at 741 F.2d 444 (D.C. Cir. 1984), and anyone who wishes to learn the truth of the matter may read it.

  17

  Why the Campaign Was Mounted

  We have seen how the opposition behaved and the tactics it saw fit to use. The question that must be answered is why. Why was there an explosion of fury at my nomination? Why did the public interest organizations, so many academics, and most of the major media display blatant hostility and misrepresent facts?

  Most immediately, of course, many of these groups were energized by issues such as abortion and sexual permissiveness. Roe v. Wade1 imposed on the United States rules permitting more widespread abortion than is allowed by the laws of any other Western democracy.2 The possibility that the case would be overturned meant that greater regulation might occur here. On this and related social issues the Court was perceived to be at a tipping point, and Justice Powell, whom I would have replaced, had one year before my nomination provided a crucial fifth vote to retain Roe.3 The real fear that I would vote the other way may also have brought into play accusations about hostility to civil rights as a means of adding other groups to the opposition coalition.

  But the fear of the opposition was more general than that. Roe is a symbol for a constellation of attitudes about social issues that are typical of the groups that came together in a great coalition to organize the opposition. The battle was ultimately about whether intellectual class values,4 which are far more egalitarian and socially permissive, which is to say left-liberal, than those of the public at large and so cannot carry elections, were to continue to be enacted into law by the Supreme Court. That was why this nomination became the focal point of the war within our culture. The behavior of the people involved reflects a left-liberal culture in near despair. The members of that culture know they are a minority, and they were desperate not to lose a battle in which symbolism as much as substance was at stake. The left-liberal culture commands much of the institutional high ground in our society. Until recently, one of its major strongholds was the Supreme Court of the United States. Being a minority, that culture must control such institutions, including counter-majoritarian institutions such as the federal courts, to have any hope of winning its cultural battles. As Lloyd Cutler, a prominent liberal lawyer and Counsel to President Carter, and a man who publicly supported me, said afterward, “Your enemies did not really think you would overturn all the decisions they like. But they have an entitlements agenda for the future—things like constitutional rights to welfare and to education—and they knew you wouldn’t give it to them.”5 If so, they were right. I would not have enacted that agenda for them, not because I disagree with those positions politically or morally but because they are not to be found in the actual Cons
titution. If the groups’ programs are to become law, they must be enacted by legislatures.

  We have discussed the sharp, long-standing difference between intellectual class attitudes and the values of most Americans in Chapter 11. Only recently, however, have intellectual class policies been advanced with the ferocity and, it must be said, the intellectual dishonesty that was manifested in the nomination campaign. What is new is the addition to the intellectual class of a group associated with, indeed responsible for, the rebelliousness and turmoil in the universities in the late 1960s. The members of “the 60s generation,” as this small group of the total population of the same age is known, are now in mid-career but, in large measure, retain the attitudes they formed in youth. One member of the Columbia College class of 1968 observed at the class’s twentieth reunion:

  “I’m amazed at how many people haven’t been depoliticized. … Against the odds of a decade of greed and cynicism, an unbelievable number are still involved in socially committed work.”6

  As would be expected, they have avoided careers in business and professions not directly concerned with policymaking. Instead, today they are tenured in the universities, strongly represented in the media, far more active than other Americans in politics, where they have found their home in the Democratic Party, and, as I shall discuss below, man an enormous range of activist public interest groups. Another member of the Columbia class of 1968, now teaching Shakespeare at the university, made this point in telling fashion:

  “What has changed most since 1968 has been the faculty, especially the junior faculty. They are the children of the 60’s. They were marching then, but now the political action takes place in the classroom, and in scholarly books dedicated to social change.”7

  Others as well have made this same observation. Thus Harold Taylor has commented:

  “Many of the students involved in the reform movements in the early and middle 1960s have gone on to the graduate schools with no slackening in their enthusiasm for the causes with which they were identified as undergraduates…. [T]heir social views, especially on questions of race and poverty, are radical, and at the same time are becoming politically respectable.”8

  Balch and London observe that today the radical left is “comfortably ensconced within a network of journals and professional organizations, university departments and academic programs”9 where they may be distinguished from their colleagues by their view that “scholarship and teaching are preeminently, and unavoidably, extensions of politics.”10 This general academic phenomenon is observable in the law faculties as well. Thus one law professor writes:

  In the late 1960s and early 1970s, many of us entered law teaching with liberal or even radical views and the faith that legal scholarship and law teaching would enable us to translate our values into social reform.11

  Indeed, the adherents of the radical Critical Legal Studies movement, mentioned in Chapter 9, themselves agree that the typical CLS professor was a college and law student in the late 1960s and early 1970s whose political attitudes were shaped by the antiwar and other radical activities of that period.12

  The 60s generation originated as an adversary culture—indeed, many of them then described themselves as the “counterculture”—and they remain cultural revolutionaries, but now they occupy positions from which they can heavily influence and alter the general culture, and they have. The New Left, a congeries of radicals so named to distinguish them from the historic American left, collapsed as a political movement, but its adherents are still with us and arguably have more effect on our politics and policies than ever.

  The defining experience of this group was, of course, opposition to the war in Vietnam. George Bush, in his inaugural address, pointed to that experience as still dividing the parties in Congress. “There has grown a certain divisiveness. We have seen the hard looks and heard the statements in which not each other’s ideas are challenged but each other’s motives. And our great parties have too often been far apart and untrusting of each other. It’s been this way since Vietnam. That war cleaves us still.”13 If the President sees that effect in our politics, it is not implausible—indeed it is obvious—that a similar effect, of the war and of the radicalism that surrounded that issue, is present elsewhere in our culture.

  The influence of this new left (I have dropped the capitals to indicate that it is no longer a political movement) is greatly increased by the fact that many such persons claim to be merely liberals of the old-fashioned variety. The claim is false, but it increases the credibility of this group with traditional liberals. The most important aspects of the new left are that it is unprogrammatic and that it is alienated.

  Because it has no cohesive program, this form of radicalism finds outlets in a variety of single-issue organizations. As Arch Puddington said:

  The [contemporary left’s] job has been simplified by the absence of serious left-wing parties whose ideologies, programs, or foreign links might elicit public scrutiny—and hostility. Instead of working through organized parties, the Left presses its agenda through single-issue projects—on the misconduct of the CIA, the menace of nuclear power, Central American “war crimes,” multinational corporate greed, U.S.—Soviet relations. At any given time, it has going literally hundreds of projects, coalitions, committees, task forces, and commissions of inquiry. Many achieve little beyond a few newspaper clippings; a few, however, have changed the very complexion of American politics.14

  The single-issue groups also include those who attack American business through extreme forms of environmentalism, feminism, product safety, health concerns, and the like. Each of these is recognized by Americans of all persuasions as a meritorious cause, but each can be pushed to extremes so great that it is difficult not to conclude that more than concern for the stated cause is at work. That “more” often seems to be an antibusiness or antibourgeois mind set.

  The new left is probably unprogrammatic because it is frustrated by its inability to articulate its natural policy preferences. The new left adopts Marxist critiques of American society because Marxism offers the most fully developed and prestigious adversarial system ready to hand. Yet the new left cannot afford to put forward a Marxist program. There is really no alternative to a capitalistic, bourgeois society other than some form of socialism. But socialism is widely, almost universally, recognized to be a practical and intellectual failure, a set of policies now so thoroughly discredited that in America no movement with any ambition to achieve power or even influence can afford to embrace it. There are of course repackaged varieties of socialism, such as industrial planning, but they quickly lose appeal when seen for what they are. The result is that those who dislike this society have only a policy of severe criticism without an alternative program they can articulate.

  The other fact to be noted about the new left and some other segments of the intellectual class is that it is enormously mistrustful of this society and its institutions, a mistrust so deep that some commentators have characterized it as a state of alienation.

  Every study of the new left and sympathetic members of the intellectual class shows their attitudes to be as I have described. S. Robert Lichter and Stanley Rothman studied the attitudes of leaders or top staffers in 74 public interest organizations, including the American Civil Liberties Union, Center for Law and Social Policy, Common Cause, Consumers Union, Environmental Defense Fund, Public Citizen, and major public interest law firms. Lichter and Rothman found:

  The liberalism of public interest leaders shades into profound dissatisfaction with the American social and economic order…. In fact their alienation was one of our most striking findings. … Three out of four believe the very structure of our society causes alienation, and over 90% say our legal system favors the wealthy…. Only about half the public interest leaders believe the system can be salvaged.15

  Ninety-six percent of the public interest elite sampled voted for George McGovern.16 That last statistic is staggering. Richard Nixon in 1972 won an enormous lan
dslide in the nation as a whole, but at the same time the public interest elite gave his leftist opponent a landslide of the proportions usually seen only in Communist bloc nations. Figures of the same general magnitude are displayed by media and academic elites. The general class of intellectuals who display views of this sort numbers in the millions.

  A culture that is at once moralistic, self-righteous, alienated, and in a minority will constantly be tempted to break the rules of political discourse—indeed to conduct its struggles in ways that preclude the use of the word “discourse”—and to gain its ends by deception or outright falsehoods. Policy disputes are disguised and take the form of moral assault. As President Bush said, the disputants challenge not each other’s ideas but each other’s motives. Max Lerner observed that our politics today are more Jacobin than at any time since the 1960s.17 Saul Bellow noted that the “heat of the dispute between Left and Right has grown so fierce in the last decade that the habits of civilized discourse have suffered a scorching.”18 This form of behavior was certainly a prominent feature of the 60s generation’s tactics as students. Alexander Bickel, in describing those tactics, complained of

  … the abandonment of reason, of standards, of measure, the loss of balance and judgment. Among its symptoms were the incivility and even violence of rhetoric and action that academics and other intellectuals domesticated into their universe of discourse. … Our recent revolutionists have offered us hatred. They despise and dehumanize the persons, and they condemn the concerns and the aspirations, of the vast majority of their countrymen. They have offered for the future, so far as their spokesmen have been able to make clear, the Maypole dance and, in considerable tension if not contradiction, a vision of “liberated” masses adjuring profit, competition, personal achievement, and any form of gratification not instantly and equally available to all.19