Who are the greatest contemporary threats to the First Amendment’s protected freedoms of religion, speech, assembly and petition? If you said political leaders like President Obama and Sen. Charles Schumer, you got it right.
Speaking in New York a few weeks ago, David Axelrod, Obama’s political communications brain, said this: “I hope that one of the things we can do, when we win this election, is use whatever tools are available, up to and including a constitutional amendment, to turn this back.”
What the president’s man wants to “turn back” is the freedom of political speech of selected groups of people with whom he disagrees. And he was referring to a constitutional amendment proposed by a group of Senate Democrats who, according to the New York Times, “fear that super PAC money, often donated anonymously, will disproportionately go toward attack ads that benefit Republican candidates.”
The proposed amendment would explicitly end the Constitution’s long-established protection of anonymous political speech for politically incorrect groups, as defined by Axelrod and the Senate Democrats — mostly advocacy groups that receive corporate funding.
Politically favored groups — especially unions, but also environmental and other advocacy groups that pour hundreds of millions of dollars into campaign support for Democrats — would mostly be protected.
Earlier this week, Schumer made clear his support for such an amendment because, he argued, “there ought to be limits because the First Amendment is not absolute. No amendment is absolute.”
Before embarking on the extremely difficult task of amending the Constitution, these Democrats are mounting an obsessive effort to gain Senate passage of legislation known as the DISCLOSE Act, which would merely intimidate anyone who might consider making his voice heard through a larger advocacy group — as the ACLU puts it, “subjecting them to harassment and potentially discouraging valuable participation in the political process.”
Just because the First Amendment does not protect the speaker who yells “Fire!” in a crowded theater, it still protects the person who shouts “Vote the bums out,” even if his chosen vehicle for doing so happens to be the kind of group that people like Schumer and Axelrod would rather silence.
Politicians among us today who would place conditions on free political speech are no different from those from the past. President Lincoln suspended habeas corpus, then jailed newspaper editors who criticized his conduct of the Civil War without ever charging them with a specific crime. Similarly, President John Adams and his Federalist Party allies in Congress used the Alien and Sedition Acts of 1798 to silence supporters of Thomas Jefferson and his nascent Anti-Federalist Party.
Thankfully, such instances have been the exception, not the rule, since the adoption of the Constitution in 1789. That things were worse during the preceding colonial era was seen in the fact that John Peter Zenger’s crime in the famous trial of 1735 was “seditious libel.”
As journalism professor Marvin Olasky points out, “under English law, truth made the libel worse by making it more likely that the statements would decrease public support for the king and his officials. A common legal expression was ‘the greater the truth, the greater the libel.’ ” That English law’s roots are in King Henry VIII’s law of 1542, which declared “nothing shall be taught or maintained contrary to the King’s instructions.” The penalty for a third offense was burning at the stake.
Obama, Axelrod and Schumer won’t be sending anybody to the stake, even in the unlikely event that they manage to amend the Constitution. But that will be small consolation for those who speak contrary to the King’s instructions.
Mark Tapscott is executive editor of The Washington Examiner.
