Newspaper column: The fight for free speech never ends

Ten years ago this month the U.S. Supreme Court reaffirmed the free speech portion of the First Amendment, declaring in the case of Citizens United v. Federal Election Commission that a federal law prohibiting people from spending their own money to make their political opinions known could not pass constitutional muster. The decision has been under constant attack by Democrats ever since.

The 5-4 ruling overturned a portion of the McCain-Feingold campaign finance law under which the FEC barred the airing of a movie produced by Citizens United that was critical of Hillary Clinton during the 2008 Democratic primary.

The late Justice Antonin Scalia succinctly wrote: “The (First) Amendment is written in terms of ‘speech,’ not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals — and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is ‘speech’ covered by the First Amendment. No one says otherwise.”

But Democrats have wheeled out a proposal to amend the Bill of Rights to exclude certain speech because it is paid for by people with money. It is wrongly called the Democracy for All Amendment.

Every Democratic member of the U.S. Senate — including Nevada Democratic Sens. Catherine Cortez Masto and Jacky Rosen — has signed on as sponsors. The amendment would allow Congress and the states to “distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.”

Sen. Cortez Masto put out a press release this past summer saying the amendment is intended to get big money out of politics. “Citizens United opened the floodgates for big money in politics by wrongly allowing corporations and special interests to buy undue influence in American elections,” Nevada’s senior senator wrote. “It’s time the effects of this disastrous ruling were reversed. A constitutional amendment putting the democratic process back in the hands of voters will help ensure that our government represents the will of Americans, not just the wealthy few.”

Pay no attention to the fact spending alone does not necessarily determine the outcome of an election. President Trump was outspent two-to-one by the aforementioned Hillary Clinton.

Sen. Rosen over the weekend sent out an email noting the anniversary of Citizens United and saying, “It’s pretty simple: we’ve got to get big money out of politics. That’s why I’m supporting a constitutional amendment that would overturn Citizens United once and for all. … Our elections should be decided by the voters — but because of Citizens United, billionaires and corporate interests can spend as much money as they want to elect politicians to do their bidding.”

Oddly enough, the amendment concludes by stating, “Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.’’

Who do they think own the “press” in the United States? Billionaires and corporations, that’s who.

In fact, Justice Anthony Kennedy, who wrote the majority opinion in Citizens United, singled out the media exemption that was written into McCain-Feingold. Kennedy wrote, “The media exemption discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. ‘We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.’”

Justice Kennedy concluded, “The First Amendment confirms the freedom to think for ourselves.”

Earlier this past year the House Democrats got into the act by putting forward the 600-page H.R. 1, dubiously dubbed “For the People Act,” which, along with other things, would require increased disclosure of donors and online advertisers. It is co-sponsored by all three of Nevada’s Democratic representatives — Dina Titus, Susie Lee and Steven Horsford.

Citizens United actually left in place certain financial disclosure requirements under McCain-Feingold. In fact, this prompted Justice Clarence Thomas to write a dissent in which he observed that disclosure requirements have spawned a cottage industry that uses donor information to intimidate, retaliate, threaten and boycott individuals and businesses with whom they disagree.

The Founders frequently engaged in anonymous speech and protected it with the First Amendment. The Federalist Papers were penned under pseudonyms.

The fight for free speech never ends.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

9 comments on “Newspaper column: The fight for free speech never ends

  1. Anonymous says:

    “President Trump was outspent two-to-one by the aforementioned Hillary Clinton.”

    Any support for this statement?

  2. Steve says:

    The Democracy For All Amendment is just another Flag Burning amendment.

    Both are identical in their scope of distraction.

  3. Anonymous says:

    Of course Thomas these figures do not include the amounts spent on Trumps behalf so what do they mean?

  4. Rincon says:

    Of course, Conservatives readily accept that the 1st Amendment is not to be taken literally such that we are not allowed to falsely shout “fire” in a crowded theater, any lies made in an attempt to trick someone out of their money is termed fraud and is punishable, doctors are not permitted to lie to their patients regarding diagnosis and treatment options for medical conditions, slander and libel are illegal, etc., yet when a board of directors presumes to speak on behalf of the business owners without their permission to millions of people, suddenly, you’re an absolute constructionist. We should all have the right to speak our own opinions. It’s when people presume to speak on behalf of and utilizing the resources of others without their permission that regulation becomes reasonable.

    Saying that investors are free to sell their shares is disingenuous not only because of the obvious impracticality of any individual finding a diverse set of companies to invest in, that truly reflect all of his political opinions, but the investor cannot predict what his money will buy at the time of purchase anyway. He can only make a guess. By the time the speech is promulgated, the investor will have already had his beliefs misrepresented. Not much point to free speech if some people have the power to commandeer the free speech rights of others in order to misrepresent them.

    Since the Constitution did not specify anonymous speech, I assume that Conservatives heartily agree that requiring all information about political donations to be public and easily accessible by all is Constitutional.

  5. Let’s see, what was it that was tantamount to shouting fire in a crowded theater?

    As for anonymous speech, the people who wrote the Constitution freely and frequently engaged in it.,

  6. Rincon says:

    You may have missed my point. I’m referring to the Constitution and what a constructionist says about interpreting it. The Constitution does not allow the federal government to restrict shouting fire when read by a constructionist, so why do constructionists allow it?

  7. Oliver Wendell Holmes found that a pamphlet arguing that the draft violated the 13th Amendment prohibition against involuntary servitude was tantamount to shouting fire in a crowded theater. Absurd.

  8. […] course, Nevada’s Democratic delegation to Congress has been in the thick of it. Sens. Catherine Cortez Masto and Jacky Rosen have signed on as sponsors of the proposed amendment, […]

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