Legal abuse of the First Amendment
January 6, 2004

Those who enthusiastically applauded the Supreme Court’s decision upholding the McCain-Feingold campaign “reforms” last year may come to rue the day they got what they asked for.

The free-speech guarantees written into the First Amendment were not penned because the Founding Fathers were obsessed with pornography or saw the need to protect future pedophiles. They were included because they believed Americans had to be free to debate the issues of the day and relative merits of candidates and parties striving for power in the new democratic republic they were creating.

The language of the First Amendment prohibited the federal government from enacting “any” law restricting the exercise of free speech because it was, and is, very difficult to draw a line between core political speech and speech of other sorts. Far safer, then, to protect all speech in order to guarantee that citizens of the new republic could exercise the core political speech so essential to a free society.

It’s little wonder Justice Antonin Scalia wrote in dissent in McConnell v. the United States that the court majority, in upholding McCain-Feingold, has taken a road that “cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.” The “reforms” upheld by the court virtually amount to little more than an attempt by Congress to restrict core political speech, which the Founders meant to protect.

The restrictions on political speech were upheld by a court that accepted the argument that the mere perception that special interests are “buying” elections is reason enough to legitimize laws inconsistent with the First Amendment. No convincing empirical proof was offered to suggest that such “perceptions” are true or that contributors to political parties and candidates or groups with an agenda have in fact corrupted the process. Rather, the argument was that the “perception” of corruption is sufficient to justify restrictions on speech because that perception somehow undermines the citizen’s faith in the system.

At one level, this line of reasoning ignores the fact that in a democratic society, a certain level of cynicism about the process and those in power is healthy. The Founders and the people of their day distrusted government and did everything they could to limit the power of those who controlled the levers of the state.

Heretofore, the First Amendment has protected those who engage in tasteless and perhaps dangerous speech, and many of us have argued that putting up with the communications of unpleasant characters is a small price to pay to protect the core political free-speech rights the amendment was drafted to guarantee.

But we can’t make that argument any more. The court has said Congress rather than the Constitution will decide what sorts of political speech are protected or sanctioned. That guts the free-speech guarantees written into the Bill of Rights; anyone relying on its protections should realize that the language now means nothing and they are vulnerable.

The court’s reasoning suggests that in the long run artists, editors, pornographers and the rest of us should look not to the Constitution or the courts for protection but to the politicians from whom the Founders sought to protect us.