Amend the First Amendment?
Democrats would delete the freedom to pillory politicians
Democratic Sen. Tom Udall of New Mexico and dozens of other senators apparently find the elegant simplicity of the First Amendment offensive. It’s hardly surprising that politicians don’t like the sound of “Congress shall make no law abridging freedom of speech” when they want to silence critics.
Not satisfied with the most popular amendment in the Bill of Rights, Mr. Udall and at least 36 of his Democratic colleagues (including independent Sen. Angus S. King Jr. of Maine, who caucuses with the Democrats) have been promised a vote on their constitutional amendment to the First Amendment, which would more than quadruple its length. It seems it’s time to close that pesky “freedom of speech” loophole that lets citizens go unpunished for criticizing their government or elected officials.
The announcement there would be a vote on the amendment came during a Senate hearing titled “Dollars and Sense: How Undisclosed Money and Post-McCutcheon Campaign Finance Will Affect the 2014 Election and Beyond.” During the hearing, Mr. Udall, and fellow Democratic Sens. Charles E. Schumer of New York and Amy Klobuchar of Minnesota took a hard line against both dollars and sense.
Their case for amending away Americans’ most important freedom played like a greatest-hits album of the worst arguments for censorship. Mr. Schumer achieved a trifecta of free speech faux pas all by himself, pointing out that freedom of speech is not absolute by comparing restrictions on political speech first to laws against pornography, then to falsely crying “fire” in a crowded theater, and finally to noise pollution.
Of course, no one argues that freedom of speech is absolute and, in fact, political speech today actually enjoys less First Amendment protection than does pornography. However, there’s even more to take issue with here than his straw men. Mr. Schumer’s view that political speech is no different from pornography, noise pollution or lying to cause a panic illustrates his appalling lack of respect for freedom of speech and the extreme recklessness of those who endeavor to replace the First Amendment with government control of campaign speech.
No one who takes free speech seriously should be quoting the “fire in a crowded theater” metaphor, which was first used by Justice Oliver Wendell Holmes in Schenck v. United States — the case where the Supreme Court ruled it constitutional for the government to suppress dissent during wartime and upheld the imprisonment of Socialist Charles Schenck. The Schenck decision is a shameful episode in First Amendment history, not something to quote approvingly from nearly a century later.
Those who want to amend the First Amendment do not seem to want a discussion of its history. They simply want to make it history. Actions speak louder than words, and the platitudes offered at the hearing about wanting a “nonpartisan” approach are contradicted by supporters of the amendments’ willingness to use irrelevant and discredited arguments to advance their cause.
In his opening remarks at the hearing, Mr. King said he was “deeply worried about the future of our democracy.” If his view that we should replace the First Amendment becomes common, we should all be worried. Our freedoms of speech and association will diminish if government power to limit political participation grows. No republic worthy of the name should consider that a good thing. As the Supreme Court warned in the McCutcheon decision that triggered the hearing, “those who govern should be the last people to help decide who should govern.”
The First Amendment is not conditioned upon a level playing field. In fact, there has never been a time in American history where everyone spoke equally and was heard equally, and there never will be. Few will ever be as famous as Oprah, run a newspaper or host a television program. The purpose of the First Amendment is to protect us from being censored or punished for our views by government, so that we may always speak truth to power. This amendment threatens that sacred right, by concentrating power in the hands of incumbent politicians. Luke Wachob is the McWethy fellow at the Center for Competitive Politics.