BY JOHN K. WILSON

As the 4^th of July draws to a close, the day when Americans across the country believe they have a right to launch illicit explosives anywhere they want to, it’s an important time to talk about mistaken beliefs in fundamental rights. A New York Times news analysis last week titled, “How Conservatives Weaponized the First Amendment,” has drawn much mockery from conservatives such as Ben Shapiro, who titled his response, “New York Times: Hey, Let’s Kill The First Amendment. It’s Helping Conservatives Too Much.”

Actually, the article came from Justice Elena Kagan who, in a dissenting opinion last month, said the court’s conservatives had found a dangerous tool, “turning the First Amendment into a sword.”

Kagan’s point is that the far right is distorting and misusing the First Amendment for its own policy purposes. That’s not a rejection of the First Amendment, but a defense of it.

Yet Shapiro wrote, “On Sunday, The New York Times ran a front-page, 2,000-word report on how ‘conservatives weaponized the First Amendment.’ Now, you might ask yourself why the most famous press institution in American history is questioning the wisdom of the First Amendment. You might also ask yourself how conservatives could have weaponized a freedom.”

Well, the New York Times isn’t questioning the First Amendment. The New York Times is reporting on some progressives who criticize how conservatives have distorted the First Amendment.

Shapiro claimed: “As soon as we subvert the commitment to free speech in favor of curbing the harms attendant on free speech, free speech is no longer a right.” Of course, that’s just nonsense. Free speech can survive the use of free speech to critique certain theories of free speech, particularly when it is used by conservatives to undermine the rights of others. For example, in Janus the First Amendment right to form a union and have that union express political speech was attacked by conservatives wrongly invoking the First Amendment to defend freeloaders. Critiquing the right-wing judicial activists is a defense of the First Amendment, not an attack on it.

Unfortunately, some progressives are embracing the right-wing’s approach to the First Amendment and suggesting that we should abandon the idea of free speech because conservatives are distorting it.

The New York Times article cites law professor Michael Seidman, who asks “Can Free Speech Be Progressive?” in the title of his law review article, and answers in the negative: “At least the answer is no if we are talking about free speech in the American context, with all the historical, sociological, and philosophical baggage that comes with the modern, American free speech right.”

Basically, he’s saying that free speech can’t be progressive if you’re talking about the conservative vision of free speech.

According to Seidman, “With the receding of Warren court liberalism, free-speech law took a sharp right turn. Instead of providing a shield for the powerless, the First Amendment became a sword used by people at the apex of the American hierarchy of power. Among its victims: proponents of campaign finance reform, opponents of cigarette addiction, the L.B.G.T.Q. community, labor unions, animal rights advocates, environmentalists, targets of hate speech and abortion providers.”

If conservatives control the Supreme Court, then the First Amendment won’t be used in particularly progressive ways. But the problem is not the First Amendment, and the solution is not rejecting First Amendment arguments. The problem is right-wing judges and the solution is getting rid of them, and demanding that they apply First Amendment principles fairly.

Even if progressives abandoned the First Amendment, that wouldn’t stop conservatives from abusing it. To the contrary, progressive advocacy for the First Amendment is the one thing that might make some conservatives more reluctant to misinterpret it. And even if conservative judges decided to stop using the First Amendment out of their deep respect for progressive legal theorists, that wouldn’t stop conservatives from finding some other legal excuse for their rulings.

Seidman laments that progressives “just can’t shake their mindless attraction to the bright flame of our free speech tradition.” That free speech tradition, properly understood, is a powerful tool for justice, and the mindless rejection of it simply because conservatives have co-opted the First Amendment for their own purposes is a mistake in every way.