Dark Day for Free Speech
by Ari Armstrong, December 10, 2003
It is a dark day indeed in the "land of the free." Five Supreme Court justices "ruled" the First Amendment means precisely the opposite of what it says and sought to deprive us of our natural and inalienable rights.
This despicable "ruling," this desecration of the principles of liberty outlined in the Constitution, has come but five days ahead of the anniversary of the Bill of Rights, ratified December 15, 1791.
"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."
What part of "NO LAW" do Congress and the five Supreme Court justices not understand?
Senators John McCain and Russ Feingold joined together in a bi-partisan usurpation of our rights in a "law" (an unconstitutional dictate) named after them. In addition to restricting citizens' ability to fund political efforts of their choosing, the Supreme Court decision to let the McCain-Feingold abomination stand also "[r]estricts election-time political ads by special-interest groups and others, including a ban on such ads mentioning federal candidates in those candidates' districts in the month before a primary election and within two months of a general election," as the AP summarizes.
The justices involved in this shameful trampling of the First Amendment are Stevens, O'Connor, Souter, Ginsburg, and Breyer. Those who defended the right of free speech are Rehnquist, Scalia, Kennedy, and (of course) Thomas.
Though the point shouldn't need review, the right of free speech is necessary for the preservation of all our other liberties. Our most fundamental right is the right to control our own bodies, and especially our own minds. Free speech guarantees our ability to convey the product of our minds -- our ideas, philosophies, political views -- to others. Of course, the right of free speech does not entail any "right" to violate others' property rights. We cannot, for example, break into somebody's house in order to deliver a presentation. And, as Ayn Rand explains, "Freedom of speech... does not mean the right to demand the financial support or the material means to express your views at the expense of other men who may not wish to support you." Indeed, forcing somebody to support your speech violates the free speech of the other person. But within the context of voluntary interactions, free speech must be absolute.
The right of free speech is inseparable from economic rights. If you have no right to buy or rent a platform, you have no right to speak from a platform. If you have no right to buy or rent a printing press, you have no right to publish. And so on: every manifestation of free speech entails some use of material goods. The right of free speech means nothing if the government can forcibly stop us from voluntarily joining our resources to promote some set of ideas. And the decision that political advertisements can be forcibly stopped threatens to eviscerate the First Amendment. Justice Scalia accurately wrote the legal rule "cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government..."
The majority suggested the First Amendment can be ignored when Congress believes it needs to "confine the ill effects of aggregated wealth on our political system." Or, put another way, "Congress shall make a law abridging the freedom of speech" whenever the hell it feels like it, so long as the majority of Supreme Court justices are complicit in the crime. The very purpose of the Bill of Rights is to restrain the power of government. Yet the Court has ruled the Bill of Rights can be set aside when government officials believe they need more power.
Thus, the Court has empowered the fox to guard the henhouse. The Bill of Rights exists to protect the people from Congress; now Congress is empowered to overturn the Bill of Rights, in the name of "protecting" the people from themselves.
That is what the Court is saying, isn't it? The people are too stupid vote intelligently. The people can't have free speech, because such speech might actually do what it was intended to do: influence the decisions of other people. So Congress must protect us from free speech, and make sure the Congress is elected only in a system stripped of free speech. Sitting members of Congress are to decide how subsequent members of Congress are elected, and how speech shall be restricted with respect to Congressional elections.
At the same time, the majority writes, "We are under no illusion that BCRA [Bipartisan Campaign Reform Act] will be the last Congressional statement on the matter. Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day." In other words, there is, in principle, no limit to the number of restrictions Congress may put on speech, in the name of ensuring "fair" elections of members of Congress.
Thomas also recognizes this point, though to his great credit that's why he dissented: "The chilling endpoint of the Court's reasoning is not difficult to foresee: outright regulation of the press... Media corporations are influential. There is little doubt that the editorials and commentary they run can affect elections. Nor is there any doubt that media companies often wish to influence elections. One would think that the New York Times fervently hopes that its endorsement of presidential candidates will actually influence people. What is to stop a future Congress from determining that the press is 'too influential,' and that the 'appearance of corruption' is significant when the media organizations endorse candidates or run 'slanted' or 'biased' news stories in favor of candidates or parties?"
The Court has ruled Congress may violate the First Amendment rights of the citizens in order to get big money out of elections. But the ends do not justify the means. Violating people's natural, inalienable rights is not justified, even if we accept the idiotic notion that the law will help improve elections (or indeed that it will do anything other than further entrench incumbents and special interests).
But the efficacy of the means is not remotely plausible, even ignoring their fundamental injustice. No one seriously believes the McCain-Feingold "law" will get special interest money out of politics, contribute to more honest elections, or help elect better or more responsible members of Congress. Let us leave aside the empirical matter of whether money influences political decisions or whether people simply give money to those who already agree with them. The big issue is that the United States has devolved from a free republic with strict limitations on government to a welfare state.
Frederic Bastiat explained this tendency in 1850 in The Law. At first, "the few practice lawful plunder upon the many, a common practice where the right to participate in the making of law is limited to a few persons. But then, participation in the making of law becomes universal. And then, men seek to balance their conflicting interests by universal plunder." There is one main reason why big money has taken root in politics: politics has become the mechanism of forcibly redistributing big money. The strong correlation between those who advocate the welfare-warfare state and those who advocate "laws" limiting free political speech is no mere coincidence.
Those who truly wish to return to honest government will fight for free speech even as they fight against the corruption of the commerce clause. Ultimately, the only way to limit the influence of special interests on government is to limit the scope of government. It is the prior violations of individual rights that has fed the current attempt to limit free speech.
For a short time long ago, I attempted to rationalize restrictions on political speech. If these donations are being made to promote government policies that violate individual rights, I rationalized, then perhaps those donations can in turn be forcibly limited. I quickly figured out I was implicitly advocating prior restraint, and I have repented. It is simply impossible to restrict "bad" political speech without also restricting the good. Nor does the fact that McCain-Feingold was sold as a populist reform justify it: the entire purpose of the Bill of Rights is to protect individual rights from tyranny, whether it be the tyranny of a few or the tyranny of the majority.
It would be difficult to underestimate the danger this particular decision poses to the future of our free Republic. The Supreme Court has endorsed censorship. Freedom and censorship are fundamentally incompatible. Rand put the matter bluntly: "There are four characteristics which brand a country unmistakably as a dictatorship: one-party rule -- executions without trial or with a mock trial, for political offenses -- the nationalization or expropriation of private property -- and censorship. A country guilty of these outrages forfeits any moral prerogatives, any claim to national rights or sovereignty, and becomes an outlaw." Today the Court has taken us a long stride along that road. (Thankfully, I remain free to publish this essay, and you remain free to read it.) Every American who cares about liberty will stand up, today, and strain against today's decision. The First Amendment lays tattered on the battlefield of ideas, stomped by the muddy boots of modern tyrants. Who will lift it delicately from the mire, stitch it back together, pat off the dirt, and lift it high into the air as our battle cry?
"Congress shall make NO LAW... abridging the freedom of speech!"