Protecting Freedom of Speech

September 11, 2014

“Attention all citizens!  To assure the fairness of elections by preventing the disproportionate expression of the views of any single powerful group.  The government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate.” This is a statement that I have taken directly from a dissenting opinion issued by associate justice Antonin Scalia in a case called Austin v. Michigan Chamber of Commerce. A 1989 ruling of the Supreme Court of the United States.

The concern expressed in that dissenting opinion, the opening line of which I have just read, comes to mind when we review the legislation in front of this body right now, Senate Joint Resolution 19, an attempt, a wholesale effort to repeal the First Amendment of the United States, to undo its most fundamental protections, protections that protect the right of every American to speak out on issues of public concern, to try to influence the outcome of elections, to try to dictate the course of our entire country.

Now, fortunately, this precedent that Justice Scalia was expressing concerns with was overruled. It was overruled in a case called Citizens United, which has itself become the target of S.J Res 19.

In other words, because the Constitution has now been properly interpreted to protect the right of the American people, to join together and form voluntary associations and to use those associations to try to influence the outcome of elections, my colleagues across the aisle have decided, rather than to follow the Constitution, to change it. Rather than to follow its dictates, to get rid of those portions that would interfere with the power of government.

This is something we cannot tolerate. This is something we cannot ignore. This is something that we must do something about, and we have to do it today.

As Justice Scalia explained in his dissent in the Austin case, this principle, this type of approach whereby we allow the government to limit the expressive capabilities of the American people, to limit the ability of the American people to form voluntary associations and speak out on matters of public concern is utterly contrary, not only to our case law, but to the text of the first amendment, and it's inconsistent with the absolutely central truth underlying the first amendment.

And the idea here is that government cannot be trusted to assure through censorship and make no mistake. That's what this is about, is censorship. The quote -- unquote -- fairness of political debate.

So we're here ostensibly to debate the relative merits of senate joint resolution 19. Which would up-end well over two centuries of understanding that there are certain things the government can't do, there are certain things the government would never be trusted to do, the government can't censor our speech, particularly our political speech.

We're here to debate that, and yet among those who have introduced this legislation, among those who have sponsored this legislation, we've heard, if I'm not mistaken, from only two. We've heard two speeches.

This is a profound and disturbing message to the American people. We're trying to up-end the cornerstone of American republican democracy, and yet we've had two speeches in support of it. This is something that ought to alarm us terribly.

I was pleased to hear moments ago from my distinguished colleague, the senior senator from Illinois. I respect the senior senator from Illinois. He and I have worked together on a lot of pieces of legislation. We have worked together most recently on the Smarter Sentencing Act, which I think is an important bipartisan attempt to reform our federal criminal sentencing code which is in serious need of being reformed.

I also respect the senior senator from Illinois for some statements that he made a few years ago when another amendment had been proposed. I at least respect the approach that he took in urging caution before undertaking any effort to undo, to weaken, to undermine the bill of rights.

Here is a statement that he made on June 26, 2006. “The Bill of Rights has served this nation since 1791, and with one swift blow of this ax, we're going to chop into the first amendment.”

He was concerned about that. He was concerned also when on the same day he made a similar comment. Instructive here I think when he noted that it is a matter with which we will likely debate the rest of this week, the week in which he was speaking in 2006, meaning this is an urgent matter. It's a -- it's a matter of great concern to the American people. When we are talking about changing the first amendment or any component to the Bill of Rights.

He continued – “the reason we're going to spend this much time on it is because this document, this one-page document in that case, represents the risk change in America. If this amendment were to be ratified, it would mark the first time in our nation's history that we would amend the Bill of Rights to the United States constitution.”

On the same day he also said “It takes a great deal of audacity for anyone to step up and suggest to change the constitution. I think we should show a little humility around here when it comes to changing the constitution. So many of my colleagues are anxious to take a roller to a Rembrandt.”

I couldn't agree more, especially when we're talking about not just freedom of speech, but poor political speech, which is the subject of senate joint resolution 19.

Make no mistake -- the fundamental purpose, the most important objective underlying the free speech clause and the free press clause was to protect the right of the people to engage in political speech and make no mistake, the purpose of this amendment is to enhance congress' power to restrict political speech.

In fact, its entire purpose focuses on efforts to spend money to influence elections, the core of political speech.

Let's go back for a minute to the dissenting opinion issued by justice Scalia in the Austin case I referenced a few minutes ago. He explained in that dissenting opinion that there are some things that we understandably don't want government to do. There are a lot of things that we do in the Constitution that are all about outlining what the powers of government are.

We explain what power congress has, what power the president has. We explain further that power is not delegated to congress or reserved for the states or to people. And then we also identify in the Bill of Rights that there are certain areas that are just out of bounds for government, areas where we don't want government to tread. This is one of those areas.

As justice Scalia explained, the premise of our Bill of Rights is that there are some things, even some seemingly desirable things, that government cannot be trusted to do.

The very first of these is establishing the restrictions upon speech that will assure --quote, unquote -- fair political debate.

The incumbent politician who says he welcomes full and fair debate is no more to be believed than the entrenched monopolist who says he welcomes full and fair competition.

This is what we face here. This is the risk we face here. We're assured by the proponents of this legislation -- that is, both of them, both of those who have shown up so far to speak in support of this -- that this will still allow debate to occur, and yet how are we to believe this when what they're proposing is to expand congress' power to limit that right to participate in an open public debate, to undertake efforts to influence the outcome of elections and thus dictate the course of an entire nation?

Justice Scalia concluded with the thought that as he put it, the premise of our system is that there is no such thing as too much speech. That the people are not foolish, but intelligent. And will be able to separate the wheat from the chaff.

He refutes the notion that a healthy democratic system can survive the legislative power to prescribe how much political speech is too much, who may speak and who may not. When we try to weaken this understanding, we're playing with fire.

Whenever congress attempts to expand its power -- for that matter whenever any government attempts to expand its power, it does so inevitably at the expense of individual liberty.

Here where it tries to expand its influence over political debate, where it purports to have the ability to expand its power over core political speech, it does so inevitably, inescapably, unavoidably at the expense of the free expressive rights of a free people.

This is one of the main core principles upon which our country was founded. We became a nation against a backdrop in which we found ourselves subject to a large, distant, powerful national government one headed by a king and a parliament. Our former London-based national government recognized no boundaries around its authority. It had for centuries interfered with the right of the people to express their grievances. It had for centuries supported criminal actions against persons who engaged in what they described under their laws as seditious liable.

In other words, if you if you criticized the government, if you criticized a government official, you could be and presumably would be criminally prosecuted for doing so. Truth was not a defense. In fact, truth made it even worse from the viewpoint of the government because it was more difficult to refute.

So people were routinely prosecuted for criticizing the government. We cannot, we must not take even one step in the direction of expanding government's authority when it comes to speech that is at the core of our political system.

Look, our political system isn't perfect. Our political system isn't something that everybody necessarily is inclined to enjoy. But our political system does keep us free and it keeps us free only to the extent that individuals are allowed to speak their mind without fear of retribution from the government.

Only to the extent that individuals, rich and poor alike, are able to say what they want and join together and form voluntary associations for the purpose of influencing the outcome of elections so that they can have some chance at standing up to a big government that affects so many of their rights, that affects so much of how they're going to provide for the needs of their families and their communities. When the people are intimidated by a government that recognizes no boundaries around its authority, everyone suffers.

This, Mr. President, is an issue that is neither republican nor democratic. It is neither liberal nor conservative. It is simply American.

It's time for the American people to stop simply expecting congress to continue to expand its power at the expense of their individual liberty.

It's time for the American people to stop simply expecting that their rights have to bow to the interests of all-powerful incumbency in Washington, D.C.

It's time for the American people to expect more. It's time for the American people to expect freedom.

We expect freedom and we will defend freedom when we defeat senate joint resolution 19. Thank you, Mr. President.