Cruz wrote an excellent op-ed in the Wall Street Journal on this subject as well, investing particular energy in shredding the notion that money does not equal speech. “Speech is more than just standing on a soap box yelling on a street corner,” he wrote. “For centuries the Supreme Court has rightly concluded that free speech includes writing and distributing pamphlets, putting up billboards, displaying yard signs, launching a website, and running radio and television ads. Every one of those activities requires money. Distributing the Federalist Papers or Thomas Paine’s ‘Common Sense’ required money. If you can prohibit spending money, you can prohibit virtually any form of effective speech.”
I wonder what the Founding Fathers would think of efforts to restrict access to the publishing mechanisms that spread the Federalist Papers, justified on the grounds that speech nobody can hear or read is still “free.” Particularly given the Founders’ abiding interest in political discourse, it seems unlikely they would accept restrictions that limit the effectiveness of speech, while still technically allowing disgruntled people to scribble whatever they please in notebooks.
We used to live in an upside-down world where “free speech” meant everything but effective political discourse, and the First Amendment was primarily viewed as a license for off-color jokes and pornography. But we’re not even that committed to the concept any more, now that suppression of unpopular ideas has become acceptable in every corner of American culture.
That’s one reason I’ve always been uneasy at the efforts of free speech vigilantes to shut down people like Phil Robertson or Mozilla’s Brendan Eich, and unsatisfied by suggestions to just ignore the freelance Thought Police, because it’s only a First Amendment violation when the government does it. A healthy society embraces the meaning of the First Amendment, the spirit of free speech and vibrant discourse. When people become comfortable with the idea of crushing ideas they dislike, they’ll soon grow more comfortable with using government power to do it. We have an unfortunate tendency these days to believe that all “good things” must eventually become mandatory, enforced by State power. Conversely, all that is undesirable must eventually become illegal. Naturally, both of those related ideas are music to the ears of statists.
I doubt the Udall effort to repeal the First Amendment is going anywhere, but just in case it does, Cruz gives a warning of what the aftermath would look like:
Congress could prohibit the National Rifle Association from distributing voter guides letting citizens know politicians’ records on the Second Amendment.
Congress could prohibit the Sierra Club from running political ads criticizing politicians for their environmental policies.
Congress could penalize pro-life (or pro-choice) groups for spending money to urge their views of abortion.
Congress could prohibit labor unions from organizing workers (an in-kind expenditure) to go door to door urging voters to turn out.
Congress could criminalize pastors making efforts to get their parishioners to vote.
Congress could punish bloggers expending any resources to criticize the president.
Congress could ban books, movies (watch out Michael Moore ) and radio programs–anything not deemed “the press”–that might influence upcoming elections.
One might argue, “surely bloggers would be protected.” But Senate Democrats expressly excluded bloggers from protection under their proposed media-shield law, because bloggers are not “covered journalists.”
One might argue, “surely movies would be exempt.” But the Citizens United case–expressly maligned by President Obama during his 2010 State of the Union address–concerned the federal government trying to fine a filmmaker for distributing a movie criticizing Hillary Clinton.
One might argue, “surely books would be exempt.” But the Obama administration, in theCitizens United oral argument, explicitly argued that the federal government could ban books that contained political speech.
I think I’ll pass on all that, thanks. Because if we don’t, we’ll soon find ourselves with a much shorter list of things we’re allowed to take a pass on.