By Senator Mitch McConnell
On June 14, it was my pleasure to address the Federalist Society's
Free Speech Practice Group about the First Amendment implications
of campaign finance "reform." Your organization fascinates
me because it is composed of people from across the political spectrum
who share a common commitment to the principles that permeate the
First Amendment. This commitment to principle ensures the existence
of the American marketplace of ideas in which the libertarians,
conservatives and liberals compete to promote their views on public
policy. Your members realize that the value of this framework is
greater than the value of any policy pursued within it. It is heartening
to know there are still people all along the political spectrum
who value First Amendment principles as an ends in and of themselves,
not simply as a convenient vehicle to achieving desired policy outcomes.
First Amendment history has finally come full circle. Fifty years
ago, the extreme right sought to restrict the scope of the First
Amendment for the salutary purpose of fighting communism and proponents
of segregation sought to restrict the scope of the First Amendment
for the despicable purpose of perpetuating racial discrimination.
Fortunately, the federal courts repelled these attacks on First
Amendment freedoms. Today, as conservative and libertarian ideas
are gaining ascendency in the marketplace of ideas, it is the left
that is finding it convenient to disregard the First Amendment.
Many on the left are now solicitous of restricting speech that interferes
with their efforts to maintain racial preferences, perpetuate the
welfare state, and increase government control over citizens. Hopefully
the courts will again prove themselves up to the task of expounding
what the law is and declare these encroachments on free speech unconstitutional.
The First Amendment states that "Congress shall make no law
. . . abridging the freedom of speech, or of the press; or the right
of the people to peaceably assemble, and to petition the Government
for a redress of grievances." There is not now, nor has there
ever been, an exception to the First Amendment for laws that are
endorsed by intellectual elites in Washington or the legal academy,
or even for laws that fare well on editorial pages or in opinion
polls. It is well settled that "voters may no more violate
the Constitution by enacting a ballot measure than a legislative
body may do so by enacting legislation." Citizens Against Rent
Control v. Berkeley, 454 U.S. 290, 295 (1981).
Some who value the First Amendment only insofar as it permits them
to achieve a desired end are now going after the very core of free
speech. Under the guise of "reform," these free speech
utilitarians are seeking to regulate and diminish the ability of
citizens to discuss issues of public concern and the political figures
inextricably linked to these issues. They claim that it is necessary
to avoid certain dangers associated with allowing some groups of
citizens, individually and collectively, to engage in too much political
speech that clashes with the rhetoric of politicians and intellectual
elites claiming to speak for the disengaged and apathetic members
of our polity. These "reformers" claim that the cynical
and apathetic will suddenly be engaged and energized if only we
would permit government to regulate and reduce the volume of those
who currently exercise their right to espouse positions on issues
and band together to "make their views known when, individually,
their voices would be faint or lost." Citizens Against Rent
Control, 454 U.S. at 294.
Unfortunately for these "reformers" (and fortunately
for the rest of us), facts do not cease to exist simply because
they are ignored. And the fact is that the First Amendment does
not permit government to control the quantity or nature of political
dialogue for any purpose, no matter how allegedly laudatory or necessary
it may be. The Founders recognized that "political speech by
its nature may sometimes have unpalatable consequences" but
they nevertheless decided to establish a polity that "accords
greater weight to the value of free speech than to the dangers of
its misuse." Abrams v. United States, 250 U.S. 616, 630-31
(1919) (Holmes, J., dissenting). They did not think that people
desiring to criticize politicians, discuss public issues and advocate
their views, no matter how strange or distasteful they may be, should
be forced to risk their "Lives . . . Fortunes and . . . sacred
Honor" to do so. I agree. And I take comfort in knowing that
there are others out there who agree and are willing to stand up
for the basic First Amendment principle that "the ultimate
good desired is better reached by free trade in ideas--that the
best test of truth is the power of the thought to get itself accepted
in the competition of the market [of ideas]." Abrams, 250 U.S.
at 630 (1919) (Holmes, J., dissenting).
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