The Democratic Assault on Free Speech
By Wesley Pruden
WashingtonTimes.com
Everybody’s for free speech — until somebody says
something he doesn’t like. But the genius of the
First Amendment is that it is so direct and plain
that even a lawyer or a judge can understand it.
The amendment does not guarantee thoughtful speech,
polite speech or even responsible speech. The
Founding Fathers wanted to say only that speech must
be free, unfettered and at liberty to flower. The
guarantee is unique among nations, and it sounds so
good that a lot of politicians in other nations pay
it lip service but are aghast if their constituents
want to try it at home.
The terrorist murders in the name of the Prophet
at Charlie Hebdo and a kosher supermarket in Paris
have assumed iconic status as examples of free
speech abused, but France, the birthplace of
Voltaire (“I do not agree with what you say but I
will defend to the death your right to say it”) is
no bastion of free speech. French police have
arrested more than 70 persons since the Charlie
Hebdo for “defending” or “glorifying” terrorism. A
lot of people claiming to be Charlie are imposters.
The most you can say for Britain is that our cousins
are equal-opportunity abusers of free speech. The
government has convicted a white supremacist for
sending a threatening anti-Semitic “tweet” to a
member of Parliament, a Muslim teenager for a
Facebook posting that “all soldiers should die and
go to hell,” and a man for making anti-Muslim
comments.
Denying the Holocaust is a crime in several
countries, including France. Germans are free to say
anything the government tells them it’s OK to say.
One of the points on which many of the religious
folk of Europe — Jewish, Christian and Muslim —
agree is that saying mean and offensive things about
religion (the Muslims call it “insulting” religion,
as if “belief” could be “insulted”) ought to be
against the law.
The Europeans have been wrong about a lot of things,
which is why so many of them came here in the first
place, and good for us that they did. But it’s not
just the Europeans with a conflicted view of free
speech.
Some Democrats, stung by rejection by the voters,
want to revise and tame speech, too. If persuasion
won’t work, maybe compulsion will. Sen. Charles
Schumer of New York, unhappy with decisions of the
Supreme Court, has proposed amending the
Constitution to give the government the power and
right to “regulate” political speech.
“The Supreme Court is trying to take this country
back to the days of the robber barons, allowing dark
money to flood our elections,” he told a Senate
committee last year. He wants the power “once and
for all” to enable Congress to “regulate our system
without the risk of [the rights] being eviscerated
by a conservative Supreme Court.” Somewhere, perhaps
in a warehouse in Mississippi, there are hundreds of
once-familiar “Impeach Earl Warren” bus-stop
benches, put out by unhappy Southern
segregationists. They’re waiting in dusty storage.
Mr. Schumer could amend the message with a can of
paint and a dime-store paintbrush: “Impeach John
Roberts.”
Another proposed revision of the First Amendment,
this one by Tom Udall, the Democratic senator from
New Mexico, would have given the states and the
federal government the power to regulate the
“raising and spending of money to advance the
fundamental principle of political equality for
all.” Like all such dreadful prescriptions, it’s
only medicine for our own good.
Laurence Tribe, the famous Harvard law professor who
was once everybody’s candidate for the Supreme
Court, could join the Schumer paint-bucket brigade.
He called amending the First Amendment “a
particularly worthy enterprise” in an essay in
Slate, the Internet magazine, “given that the
composition of the [Supreme] Court prefigures little
chance of a swift change in direction.”
Only yesterday the First Amendment was the great
untouchable landmark of the law, the guiding
principle that James Madison and the Founders
bequeathed as the guarantee that the American
democracy would always work. There could be no
exceptions.
The Supreme Court held in 1969 that even
inflammatory speech, even speech by the Ku Klux Klan
advocating violence, is protected speech under the
First Amendment unless the speech “is directed to
inciting or producing imminent lawless and [a very
important “and” it is] is likely to incite or
produce such action.” Mere advocacy is protected
speech.
“The ultimate good desired is better reached by free
trade in ideas,” wrote the famous Justice Oliver
Wendell Holmes. Persuasion always trumps compulsion.
Embittered losers, take note. That includes you,
Chuck Schumer.
• Wesley Pruden is editor emeritus of The
Washington Times.