Log on to Twitter on any given day; there are countless speakers on the political left who attack, vilify, and insult me. And, although I’d prefer that they exercise civility, I’ll defend vigorously their constitutional right to say whatever nasty, false, dehumanizing attack they send my way. That’s the price of public life. As the English writer Evelyn Beatrice Hall wrote, summarizing the beliefs of the great French Enlightenment thinker Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.”
Free speech is not just an instrumental good. It is not just an expedient. It is not just a means toward an end. It is an intrinsic good—an end unto itself. For millennia, political theorists and philosophers have recognized that the dialectic, the iterative societal dialogue that has the pursuit of truth as its desired destination, is necessarily dependent upon free speech and the free airing of diverse viewpoints. As John Stuart Mill wrote in On Liberty,
[T]he peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
Put another way, the best cure for bad speech is more speech. Over time, truth will prevail in the marketplace of ideas. And rather than silencing false or dissenting views, respond with truth and win the argument.
For that reason, the text of the First Amendment provides, “Congress shall make no law… abridging the freedom of speech.” That is an unambiguous textual command. It is, or at least ought to be, clear as day. “Congress shall make no law” means, obviously, that “no law” that abridges the freedom of speech may rightfully be sanctioned by that august deliberative body. That’s why, to have the power to ban political speech with which they disagreed, Democrats had to amend and repeal the First Amendment.
When the Senate had previously considered Democratic attempts to amend the free speech protections of the First Amendment, and to expand the government’s authority to regulate political speech, such liberal warriors as Senator Ted Kennedy had vigorously opposed them. In 1997, many years before Citizens United was decided, when Democrats had tried to pass a campaign-finance constitutional amendment, Kennedy thundered, “In the entire history of the Constitution, we have never amended the Bill of Rights, and now is no time to start. It would be wrong to carve an exception in the First Amendment.”
At the same time Senator Kennedy issued that warning, Democratic Senator Russ Feingold, who would go on to co-sponsor the very campaign finance law the Court ultimately enjoined in Citizens United, said, “The Constitution of this country was not a rough draft. We must stop treating it as such.” And so Feingold opposed the Democrats’ constitutional amendment. Later, in 2001, when Senate Democrats again attempted a constitutional amendment similar to the ones that they proposed in 1997 and in 2014, Senator Feingold replied, “I find nothing more sacred and treasured in our nation’s history than the First Amendment. I want to leave the First Amendment undisturbed.”
I pleaded with my Democratic colleagues. Surely one of you, I asked, must agree with Ted Kennedy. Or Russ Feingold. Or Floyd Abrams. Or the ACLU. Surely one of you, I asked, must agree that the free speech provisions of the First Amendment deserve to be protected. I spoke passionately on the issue—an issue that embodies the American experiment and the Liberty at its heart:
Mr. President, this proposal before the Senate is, bar none, the most radical proposal that has been considered by the United States Senate in the time I have served. If this proposal were to pass, its effects would be breathtaking. It would be the most massive intrusion on civil liberties and expansion of federal government power in modern times.
Later on in that speech, I explained that the purpose of the First Amendment is not merely to protect the speech that politicians deem reasonable, socially permissible, or otherwise acceptable. On the contrary, our First Amendment exists to protect the most unpopular and unfavored speech among us:
The First Amendment is not about reasonable speech. The First Amendment was enacted to protect unreasonable speech. I, for one, certainly don’t want our speech limited to that speech that elected politicians in Washington think is reasonable.
There was a time when this body thought the Alien and Sedition Acts prohibiting criticizing the government were reasonable. There is a reason the Constitution doesn’t say, “let’s trust politicians to determine what speech is reasonable and what isn’t.” And I would note that the Supreme Court has long made clear that the First Amendment is all about unreasonable speech. For example, when the Nazis wanted to march in Skokie, Illinois. Nazi speech is the paradigmatic example of unreasonable speech. It is hateful, bigoted, ignorant speech. And the Supreme Court said the Nazis have a constitutional right to march down the street in Skokie, Illinois, with their hateful, bigoted, ignorant speech. Now, every one of us then has a moral obligation to condemn it as hateful and bigoted and ignorant, but the First Amendment is all about saying government doesn’t get to decide what you say is reasonable and what you say is not.
As I concluded my speech on the Senate floor, I made sure everyone knew that this was not about politics at all. This was about doing the right thing. This was about making sure we didn’t erase one of the most foundational provisions in the entire Bill of Rights:
Madam President, I assure you if it were my party proposing this egregious amendment, I would be standing on the floor
