Welcome to Congress Shall Make No Law, a complement to the Institute for Justice’s fight, both in courts of law and the court of public opinion, to defend the freedom of speech from government encroachments—particularly so-called “campaign finance” laws.
Freedom of speech is one of the most important rights Americans enjoy, yet one of the least understood and most neglected. Like the air that we breathe, speech is so integral to our lives and so ubiquitous—think twitter, Facebook, blogs, cell phones, and email and much more—that most Americans take it for granted.
Yet we ignore the right to free speech at our peril. Indeed, it was not until 1931 that the Supreme Court first struck down a statute under the First Amendment, and the relatively vigorous legal protections our speech enjoys today have only existed for about 50 years.
But there is no guarantee that these legal protections will persist.
Censorship and speech regulations are common throughout the world, increasingly even in many Western nations. In America, byzantine “speech codes” regulate speech on college campuses; calls for the regulation of broadcast content are common; and complex campaign finance laws control how and when we may speak about elections.
Speech will remain free in America only if we take First Amendment rights seriously. The good news is that business is still booming in the American marketplace of ideas. Debate and discussion on all topics remains vigorous.
The bad news is that opinion leaders of all political stripes are increasingly ambivalent about—or worse yet, hostile to—free speech. According to former judge Robert Bork, censorship can sometimes be justified on the grounds that “people forced to live in an increasingly brutalized culture are, in a very real sense, not wholly free.” Defending a law designed to remedy that allegedly “brutalized culture,” Solicitor General Elena Kagan argued in the Supreme Court recently that speech should be protected only if its benefits outweigh its “societal costs.” According to Yale law professor Owen Fiss, we may “have to silence the voices of some in order to hear the voices of . . . others. Sometimes there is simply no other way.”
The view that speech must justify itself to be left free is perhaps nowhere more apparent than in the area of campaign finance law. This term, in Citizens United v. FEC, the Supreme Court struck down a law that severely restricted the ability of corporations to spend money on speech criticizing candidates during an election. The decision was a ringing endorsement of First Amendment principles and their important place in our society.
Citizens United was swiftly and harshly denounced. President Obama accused the Court of reversing “a century of law” and “open[ing] the floodgates for special interests . . to spend without limit in our elections.” The New York Times—a corporation—complained that the decision improperly extended First Amendment rights to corporations. MSNBC commentator Keith Olberman called Citizens United the worst decision since Dred Scott.
James Madison once described free speech as “the right of freely examining public characters and measures which has ever been justly deemed the only effective guardian of every other right.” Yet, 200-odd years later, a Supreme Court decision upholding the right to "freely examine" a politician's record has created a nationwide controversy.
Clearly, there is great disagreement about the meaning and purpose of the First Amendment.
The purpose of this blog is to provide the defense that the First Amendment deserves but far too seldom receives. In our view, the First Amendment means what it says. It protects an individual right to freedom of speech, not a privilege to be tolerated at society’s pleasure. Furthermore, the right to speak implies the right to speak effectively, by associating with others, purchasing advertisements on national television and everything in between.
Above all, freedom of speech is a profound value. It is, in a very real sense, the life blood of a modern industrial society. If we ignore it, it can—and will—go away.
Most of the content of this blog will focus on campaign finance laws, because they are among the most pressing threats to freedom of speech today and the least understood. But the Institute for Justice litigates other types of free speech cases, and we expect from time to time to comment upon other areas as well.
In sum, if you’re looking for informative and provocative commentary about free speech, we hope that you’ll be a regular visitor to Congress Shall Make No Law.