At the time, it so happened that one of my colleagues on the Judiciary Committee was Al Franken, who had previously been a writer and actor for SNL. At the mark-up, I asked him if “Congress should have the constitutional authority to prohibit Saturday Night Live from making fun of politicians.” He replied he didn’t “intend to do that.”
Of course, whatever his personal, subjective intentions may have been (perhaps just to grandstand politically), he had not one word of substantive response to the fact that the explicit terms of the amendment he was supporting—which would be engrafted into the Bill of Rights—would have given Congress blanket power to “prohibit [corporations, including NBC] from spending money to influence elections.”
Regulating political speech—books, movies, comedy, satire—is very different from what Democrats and the media typically portray Citizens United as being all about: for-profit, greedy corporations trying to “buy” elections. In truth, polling over the past decade shows that, overall, a very small percentage of corporations of any form, type, or size directly engage in politics. Polls have shown that over 90 percent of companies surveyed do not have a super PAC and do not otherwise directly engage in politics at an institutional level.
And a substantial majority of the big-money donors are on the left, not the right. According to the data maintained by OpenSecrets.org, of the top twenty organizations who spent money on the 2016 election, fourteen of them gave almost exclusively to Democrats, and three more split their money roughly evenly between the parties. Only three out of the top twenty groups who spent money on the 2016 election gave primarily to Republicans. Of the top ten super PAC donors, only two were Republican, and in 2016 the top twenty super PAC donors contributed a total of $422 million to Democrats and $189 million to Republicans.
To its credit, the American Civil Liberties Union, a liberal group that has sadly gotten less principled and more partisan in recent years, managed to publicly oppose Senate Democrats’ attempt to repeal the First Amendment of the Bill of Rights. It wrote that Senate Democrats’ proposed constitutional amendment would “severely limit the First Amendment, lead directly to government censorship of political speech and result in a host of unintended consequences that would undermine the goals the amendment has been introduced to advance.”
Think about that for a second. The Democrats were seeking the power to ban books. Conjure for a moment Ray Bradbury’s classic dystopian novel Fahrenheit 451, named for the temperature at which book paper ignites. In it, a despotic government rounds up and burns the books with which it disagrees. How can it be that today one of our two major political parties is on record in favor of precisely that unfettered government power? As we debated the issue, I dubbed the amendment’s proponents the “Fahrenheit 451 Democrats.” Notably, not a single Democrat presented any substantive argument whatsoever as to why their amendment wouldn’t allow government-mandated book burning. They simply charged ahead with partisan, lock-step unity.
In the course of the mark-up before the full Senate Judiciary Committee, I introduced an amendment to the Democrats’ proposed constitutional amendment. It deleted every word of their proposed amendment and replaced it with the following: “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.” That was and is, of course, the text, word-for-word, of the First Amendment to the Constitution.
We then voted on my proposed amendment, and every single Democrat on the Judiciary Committee proceeded to vote against the verbatim text of the First Amendment. But the matter wasn’t done then. Next, it came to a vote on the Senate floor. At the time, I was a fairly new senator, and I made an impassioned argument to my Democratic colleagues that, even if we disagreed on many matters of policy, we should come together when it came to protecting free speech.
There was a time when lions of the left routinely defended free speech. Indeed, one of the lawyers who argued the Citizens United case, on the side of defending the right of citizens to criticize elected officials, was Floyd Abrams, the famed left-wing lawyer who had championed dozens of free speech cases for many decades. A lifelong liberal, Abrams showed principle and consistency when he testified vigorously against the Democrats’ proposed constitutional amendment. But as we have seen on so many other issues, this is not your father’s Democratic Party.
One of the Court’s landmark free speech cases was Cohen v. California, where, at the height of the Vietnam War, the State of California had tried to prosecute Paul Robert Cohen for disturbing the peace because he wore a jacket that read, “F### the draft.” Personally, you might not agree with that sentiment; you might even find it obscene. But the Supreme Court nonetheless rightly reversed the conviction; as Justice John Marshall Harlan II wrote, “one man’s vulgarity is another’s lyric.”
A robust commitment to free speech is not a means to merely protect favored, or popular, speech. It is not a means to elevate and single out speech that might be deemed “reasonable.” It is not a means to prioritize only the speech that is deemed socially acceptable and inoffensive by an elite ruling class. Rather, a society protects free speech under the rule of law precisely to protect unreasonable
