Skip to comments.High court must stop assault on free speech
Posted on 05/10/2003 3:38:24 AM PDT by Prince Charles
High court must stop assault on free speech
May 10, 2003
BY THOMAS ROESER
John Adams, patriot and second U.S. president, had a good side and a bad side. The good Adams had a price on his life during the Revolution, yet saved a group of British soldiers from being railroaded to the gallows. But in 1798, the bad Adams tarnished his reputation by causing to be enacted a Sedition Act that threatened with fine and imprisonment anyone who ''shall write, print, utter or publish . . . scandalous and malicious . . . writings against the government of the United States or either house of the Congress . . . or the the president . . . with intent to defame . . . or to bring them . . . into contempt or disrepute or to excite against them . . . the hatred of the good people of the United States.''
The notorious gag law on free speech, a symbol of Adams' anger at press criticism, was allowed to lapse in 1800. It takes first place as an offensive weapon against the First Amendment. But a close second is the McCain-Feingold law, misguidedly signed by George W. Bush, which withholds much issue advocacy in the crucial days before election. A special three-judge federal court panel threw out key parts of the law last week, but the last best hope to save much of political free speech now rests with the U.S. Supreme Court. Pretending good intentions (supposedly to block big money that it insists can swing elections if unchecked), the law claps its clammy hand across the mouth of the electorate, blocking significant dissemination of ideas for as long as 60 days before an election.
It would severely limit unions, corporations and issue organizations from effectively informing the public about candidates by imposing a broadcast blackout, refusing to allow those organizations to advertise on radio or TV any information about an incumbent candidate during the 60 days before a general election and 30 days before a primary. It limits the right of independent issue-advocacy organizations to describe how members voted; prohibiting them, in some cases, from using the name and likeness of candidates during the vital days leading up to election. As a sop to free-speech advocates, the law allows members of those groups to raise money to advertise as individuals, but they would be required to submit new and burdensome registration and reporting requirements. As a consequence, incumbents will ride almost full sway over the airwaves with their ads. The only people who will be absolved from this gag rule will be politicians, political action committees and the media. Frankly, if it were not so sardonically amusing, it could be called an exercise in tyranny by the so-called nicey-nice people--liberals and members of the big press autocracy, including the New York Times, which has crusaded for its passage.
Who's against it? Issue advocacy groups of all persuasions, including the National Rifle Association and the National Right to Life committee, the American Civil Liberties Union, the AFL-CIO and the Alliance for Justice, to name just a few. ''Had this bill been the law during the 2000 elections, for example, it would have effectively silenced issue organizations across the entire political spectrum,'' including the NAACP and NRA, says the ACLU. With the average person's free speech hobbled by this law, print and electronic journalists, commentators and politicians would dominate, spurring the possibility of a home-grown Pravda drowning out dissent in the crucial days before election.
One can only hope that the Supremes toss the law out altogether. That would be a fitting rebuke to the tin-pot reformers, sweating to silence views they deem inconvenient. A far better reform--an entirely constitutional one--stands in the wings. It is known as the Political Freedom Act, which had 73 signatories before the thought-police steamroller flattened debate. It applies the most effective reform of all--complete disclosure, immediately, on the Internet and to appropriate state and federal authorities--while safeguarding advocacy by repealing government's stunted limitations on giving.
Presumably, the good John Adams--chastened by the uproar his bad Sedition Act caused--would heartily approve.
Congress, the Court, and the Constitution 1. Congress assumed that the Court is properly the enforcer of the First Amendment.
1. Congress assumed that the Court is properly the enforcer of the First Amendment.
This is by now a very old error, and one so venerable that to speak in correction of it is to raise questions about one's sanity in most circles. So deep runs the popular myth that the Supreme Court is properly the final authority in enforcing virtually every provision of the Constitution that a digression is necessary here into the more general question of judicial review. As Professor Robert Clinton has shown, the judicial power to invalidate the actions of other branches of the national government was widely understood at the founding to be ''departmental'' or ''coordinate''a power he calls ''functional review'' enabling the judiciary to pronounce authoritatively on the constitutionality of laws touching on the integrity of the courts' own functions, for instance where a case concerns jurisdictional issues, standards of evidence, or the provision of simple due process. This limited version of judicial review was all that was either exercised or claimed for the Court by John Marshall in the 1803 case of Marbury v. Madison.(see footnote 131) On the other hand, the legislative and executive branches have a like authority to have the ''last word'' on those constitutional questions bearing on the exercise of their own powers, arising from the provisions of the Constitution addressed to themselves. Thus, that same John Marshall, for instance, held that the reach of Congress's power over commerce among the states was to be controlled authoritatively not by the judiciary, but by the people through democratic processes: such are ''the restraints on which the people must often rely solely, in all representative governments.''(see footnote 132)
Now obviously, the terms of the First Amendment address themselves to the Congress and not to the judiciary, and in no way would an infringement of one of the rights therein have an adverse effect on the proper functioning of judicial processes. Moreover, if the First Amendment had been expected to be the subject of routine judicial enforcement, we would expect the subject to have come up frequently in the First Congress that debated and drafted the Bill of Rights. Yet, in his brilliant account of how the Bill of Rights came to be added to the Constitution, Professor Robert Goldwin manages to tell the whole story in complete detail without ever once mentioning that the subject of judicial enforcement of the Bill arose at all. The point of the Bill of Rights was not to trigger judicial review, but to weave a love of liberty into the American political culture. Here ''is how it works,'' Goldwin tells us in his recent book:
[T]o the extent that these principles of free government [in the Bill of Rights] have become a part of our ''national sentiment,'' they do, indeed, often enable us, the majority, to restrain ourselves, the majority, from oppressive actions. That is the import of the first five words of the Bill of Rights: ''Congress shall make no law'' that attempts to accomplish certain prohibited things. It means that even if a majority in Congress, representing a majority of us, the people, wants to make a law that the Constitution forbids it to make, we, all of us, superior to any majority, say it must not be done, because the Constitution is the will of all of us, not just a majority of us.(see footnote 133)
So as not to be misunderstood, I should add that certain provisions in the Bill of Rights do address themselves to the courts, and so are fit subjects for judicial reviewobviously amendments five through seven, arguably four through eightbut the First Amendment is not one of them. It is only in this century, with the expansion of judicial authority in every direction, that we have come to think otherwise.