Amend the First Amend­ment?

Democrats would delete the free­dom to pil­lory politi­cians

The Washington Times Weekly - - Commentary - By Luke Wa­chob

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.


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