The Unorganized

American Militia

King George didn’t listen to us either!

Repealing the First Amendment

The campaign finance crowd has more ideas for limiting speech

By Charles Pitts

It didn't take long for Congress to try an end-run around the Supreme Court's landmark January decision in Citizens United v. FEC. With a campaign finance bill due to be introduced this week, Democrats are proposing to repeal the First Amendment, at least for some people.

Senator Chuck Schumer of New York and Representative Chris Van Hollen of Maryland want to prevent any company with more than 20% of foreign shareholders from spending money in U.S. elections, ban TARP recipients and government contractors from campaign spending, and require CEOs to pop up at the end of television commercials to "approve this message" just like politicians.

Maryland Democrat Donna Edwards and Michigan Democrat John Conyers are going further and proposing to amend the Constitution so it bars corporate free speech. John Kerry and Arlen Specter are also on board for a First Amendment rewrite. At least these Constitutional amenders are honest about their goals and what it requires to be legal.

Not so Messrs. Schumer and Van Hollen, who want to sneak their speech bans by degrees into legislation. While current law already prevents foreign corporations from participating in U.S. elections, their proposal would silence some five million Americans who work for domestic subsidiaries of foreign companies and whose money is generated in the U.S. As a Constitutional matter, that amounts to telling some Americans that they may not engage in political speech—a formula the Supreme Court has rejected in such other recent cases as Davis v. FEC.

The Democrats don't include unions in their speech bans, though the Supreme Court recently liberated unions from campaign-finance rules too. As former Federal Election Commission member Hans von Spakovsky points out, the Service Employees International Union often boasts of its hefty percentage of Canadian members. Should it be barred from donating to President Obama?

As for restricting campaign spending by government contractors, the Supreme Court explicitly laid out in Citizens United that the only rational basis for such a limit is corruption or the appearance of corruption. Independent spending of the kind the Court allowed doesn't count here because, unlike direct contributions to candidates, there is no potential for kickbacks. As the Center for Competitive Politics points out, restricting all contractors also runs afoul of the Constitution because the government provides its employees (teachers, doctors and so on) with benefits, and it may not make those things conditional on the contractors forfeiting their right to free speech.

We've long supported disclosure for campaign contributions, so voters can judge for themselves if certain donations are corrupting. But Mr. Schumer's version of disclosure is designed to discourage speech with complex regulation, including a new and separate disclosure regime with the Securities and Exchange Commission.

As for CEO appearances in advertisements, will trial lawyer donors have to do the same? How about SEIU chief Andy Stern? The double standard for unions and business betrays Mr. Schumer's real goal, which is a partisan fund-raising advantage for Democrats.

As a practical matter, all of this continues the game of whack-a-mole that the campaign-finance restrictionists have pursued for decades to little avail. They haven't stopped the flow of money into campaigns or produced cleaner government, but they have made fund-raising far more complex and legally difficult for donors and candidates. These new efforts are destined for a similar fate if they ever make it into law—and we hope Republicans filibuster them.

Citizens United blew a huge hole in the campaign finance rules, and there is no Constitutional way to refill it. The campaign-finance restrictionists should give up their misbegotten and illegal regulatory model and try deregulation and transparency instead. States like Virginia and Utah have no contribution limits but require disclosure and are among the best-run states in such traditional hallmarks of good government as economic health and development. The First Amendment has worked pretty well for 230 years. We don't need a rewrite.

Obama Declares War on Free Speech

By Robert Spencer

In Human Events today I discuss the latest bad news in the Obama Administration's ongoing quiet war against free speech:

The Obama Administration has now actually co-sponsored an anti-free speech resolution at the United Nations. Approved by the U.N. Human Rights Council last Friday, the resolution, cosponsored by the U.S. and Egypt, calls on states to condemn and criminalize "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence."

What could be wrong with that? Plenty.

First of all, there's that little matter of the First Amendment, which preserves Americans' right to free speech and freedom of the press, which are obviously mutually inclusive.

"Incitement" and "hatred" are in the eye of the beholder -- or more precisely, in the eye of those who make such determinations. The powerful can decide to silence the powerless by classifying their views as "hate speech." The Founding Fathers knew that the freedom of speech was an essential safeguard against tyranny: the ability to dissent, freely and publicly and without fear of imprisonment or other reprisal, is a cornerstone of any genuine republic. If some ideas cannot be heard and are proscribed from above, the ones in control are tyrants, however benevolent they may be.

Now no less distinguished a personage than the President of the United States has given his imprimatur to this tyranny; the implications are grave. The resolution also condemns "negative stereotyping of religions and racial groups," which is of course an oblique reference to accurate reporting about the jihad doctrine and Islamic supremacism -- for that, not actual negative stereotyping or hateful language, is always the focus of whining by the Organization of the Islamic Conference (OIC) and allied groups. They never say anything when people like Osama bin Laden and Khaled Sheikh Mohammed issue detailed Koranic expositions justifying violence and hatred; but when people like Geert Wilders and others report about such expositions, that's "negative stereotyping."

But we still have the First Amendment, right? Legal expert Eugene Volokh, in an excellent analysis of the resolution, explains why it isn't that easy to dismiss this. "If the U.S. backs a resolution that urges the suppression of some speech," he explains, "presumably we are taking the view that all countries -- including the U.S. -- should adhere to this resolution. If we are constitutionally barred from adhering to it by our domestic constitution, then we're implicitly criticizing that constitution, and committing ourselves to do what we can to change it." He adds that in order to be consistent, "the Administration would presumably have to take what steps it can to ensure that supposed 'hate speech' that incites hostility will indeed be punished. It would presumably be committed to filing amicus briefs supporting changes in First Amendment law to allow such punishment, and in principle perhaps the appointment of Justices who would endorse such changes (or even the proposal of express constitutional amendments that would work such changes)."

Last year the Secretary General of the OIC chief Ekmeleddin Ihsanoglu issued a warning: "We sent a clear message to the West regarding the red lines that should not be crossed" regarding free speech about Islam and terrorism. And he reported success: "The official West and its public opinion are all now well-aware of the sensitivities of these issues. They have also started to look seriously into the question of freedom of expression from the perspective of its inherent responsibility, which should not be overlooked."

For the first time, an American President has bowed to the OIC's demands and taken cognizance of that "responsibility" -- after years in which George W. Bush resisted such initiatives at the UN.

In October 2008, I wrote this in Human Events about early signs that Barack Obama had no great love for the freedom of speech: "If candidate Obama is willing to have people arrested when they say things about him that he doesn't like, will President Obama have the vision or courage or understanding to stand up against the OIC when it demands restrictions on freedom of speech at precisely the same time that he wants to build bridges to the Islamic world and demonstrate his power to restore hope and bring change to old stalemated conflicts?"

The answer is in. The answer is no.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Thomas Jefferson once claimed, “A democracy cannot be both ignorant and free.” This was the commonly held attitude of the “enlightened” men who settled the United States. The framers of the Constitution believed that if the new U.S. citizens failed to take care to share information completely among themselves, they would be worse off than they had been as subjects of the British monarchy they fled.

The new American settlers brought with them a desire for democracy and openness. They left behind a history of tyranny and official control of information. Using this experience as their guide, the constitutional fathers wrote into their new Constitution a Bill of Rights, which contained the First Amendment.

The Bill of Rights consists of the first ten amendments, which contain procedural and substantive guarantees of individual liberties and limits upon government control and intervention.

The First Amendment, perhaps the best known of these freedoms and protections, prohibits the establishment of a state-supported church, requires the separation of church and state, and guarantees freedom of worship, of speech and the press, the rights of peaceable assembly, association and petition.

While some Supreme Court justices have declared that First Amendment freedoms are absolute or occupy a preferred position, the Court has routinely held they may be limited so as to protect the rights of others (e.g. libel, privacy), or to guard against subversion of the government and the spreading of dissension in wartime. Thus, the Court’s majority has remained firm — the First Amendment rights are not absolute.

Only two Supreme Court justices, Justice Hugo Black and Justice William O. Douglas, insisted the First Amendment rights are absolute and their dissenting opinions fell to the wayside. Most court cases involving the First Amendment involve weighing two concerns: public vs. private. Also, the Supreme Court has often defined certain speech, also known as “at risk speech,” as being unprotected by the First Amendment.