On June 14, it was my pleasure to address the Federalist Society's Free Speech Practice Group about the First Amendment implications of campaign finance "reform." Your organization fascinates me because it is composed of people from across the political spectrum who share a common commitment to the principles that permeate the First Amendment. This commitment to principle ensures the existence of the American marketplace of ideas in which the libertarians, conservatives and liberals compete to promote their views on public policy. Your members realize that the value of this framework is greater than the value of any policy pursued within it. It is heartening to know there are still people all along the political spectrum who value First Amendment principles as an ends in and of themselves, not simply as a convenient vehicle to achieving desired policy outcomes.
First Amendment history has finally come full circle. Fifty years ago, the extreme right sought to restrict the scope of the First Amendment for the salutary purpose of fighting communism and proponents of segregation sought to restrict the scope of the First Amendment for the despicable purpose of perpetuating racial discrimination. Fortunately, the federal courts repelled these attacks on First Amendment freedoms. Today, as conservative and libertarian ideas are gaining ascendency in the marketplace of ideas, it is the left that is finding it convenient to disregard the First Amendment. Many on the left are now solicitous of restricting speech that interferes with their efforts to maintain racial preferences, perpetuate the welfare state, and increase government control over citizens. Hopefully the courts will again prove themselves up to the task of expounding what the law is and declare these encroachments on free speech unconstitutional.
The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances." There is not now, nor has there ever been, an exception to the First Amendment for laws that are endorsed by intellectual elites in Washington or the legal academy, or even for laws that fare well on editorial pages or in opinion polls. It is well settled that "voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation." Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 295 (1981).
Some who value the First Amendment only insofar as it permits them to achieve a desired end are now going after the very core of free speech. Under the guise of "reform," these free speech utilitarians are seeking to regulate and diminish the ability of citizens to discuss issues of public concern and the political figures inextricably linked to these issues. They claim that it is necessary to avoid certain dangers associated with allowing some groups of citizens, individually and collectively, to engage in too much political speech that clashes with the rhetoric of politicians and intellectual elites claiming to speak for the disengaged and apathetic members of our polity. These "reformers" claim that the cynical and apathetic will suddenly be engaged and energized if only we would permit government to regulate and reduce the volume of those who currently exercise their right to espouse positions on issues and band together to "make their views known when, individually, their voices would be faint or lost." Citizens Against Rent Control, 454 U.S. at 294.
Unfortunately for these "reformers" (and fortunately for the rest of us), facts do not cease to exist simply because they are ignored. And the fact is that the First Amendment does not permit government to control the quantity or nature of political dialogue for any purpose, no matter how allegedly laudatory or necessary it may be. The Founders recognized that "political speech by its nature may sometimes have unpalatable consequences" but they nevertheless decided to establish a polity that "accords greater weight to the value of free speech than to the dangers of its misuse." Abrams v. United States, 250 U.S. 616, 630-31 (1919) (Holmes, J., dissenting). They did not think that people desiring to criticize politicians, discuss public issues and advocate their views, no matter how strange or distasteful they may be, should be forced to risk their "Lives . . . Fortunes and . . . sacred Honor" to do so. I agree. And I take comfort in knowing that there are others out there who agree and are willing to stand up for the basic First Amendment principle that "the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market [of ideas]." Abrams, 250 U.S. at 630 (1919) (Holmes, J., dissenting).