A Renewed Assault on Freedom of Speech

by EDWARD CLINE April 23, 2012

House Minority leader Nancy Pelosi of California and her fellow Democrats wish to "amend" the First Amendment in order to prohibit corporations from saying anything or spending anything during national elections. There is some satisfaction to be had in no longer having to identify her as House Speaker. I never liked seeing her wield that gavel. Someone once remarked that a hammer in hand causes one to search for nails to pound in, and she was always searching for nails. She specialized in coffins.

It may be an act of desperation that moves her and her party to push for an "amendment" of the First Amendment in light of President Barack Obama's falling poll numbers -- numbers he seems determined to see fall every time he opens his mouth on any subject - to pull his reelection chances from the jaws of ignominious but well-deserved defeat. Or it may be an expression of defeat but an assurance that the Democrats will stick one more knife into America's back with such an "amendment," to better the party's chances of winning the White House in 2016 by loading the campaign finance dice.

Or it may be to establish a legacy of unprecedented malice and contempt for the country.

Think about it: It costs demagogues and wannabe totalitarians nothing to usurp the Constitution. They are all paid handsomely and enjoy fringe benefits and privileges most Americans could not afford. They are also exempt from having to submit to Obamacare. However, it will cost a concerned electorate time and money to combat and possibly see repealed or declared unconstitutional the blatant and sanctimonious thievery of our liberties and wealth. And that's only if the courts - especially the Supreme Court - is dealing with a full deck and understands the issues and what's at stake.

Or it may be an act of over-confidence that Obama will be reelected this November, regardless of his poll numbers, and here's a sample of what the Democrats plan to foist on the country after all the destructive "hope and change" of the last three and a half years. An amendment to the First Amendment would be no less a guarantee than how the Obamacrats fixed BHO's nomination and probable election in 2008 in several state caucuses and primaries with voter fraud and cooking the electoral books.

One really can't decipher what goes on inside the minuscule minds of Democrats, except that it's bound to be no good. That's for professional strategy watchers to second-guess.

Sporting what looked like a dry-cleaned Confederate Army officer's tunic, Pelosi explained why she wants to amend the First Amendment. She and her Democrat colleagues wish to prohibit corporations, regardless of their status as for-profits or non-profits, from having any role in political debate or in endorsing any candidate or idea. The Democrats harbor an unrelenting animosity for the Citizens United v. Federal Election Commission case of 2010, decided in favor of freedom of speech by the Supreme Court (at least partly; the whole 2002 Bipartisan Campaign Reform Act , a.k.a. the McCain-Feingold Act or "BCRA," ought to have been declared null and void). It weighs in the Democrats' collective political stomach like a helping of Yorkshire pudding, which often has the consistency of a lump of badly set cement.

Justice Anthony Kennedy, writing the majority 5-4 opinion, noted several key but not fundamental issues in Citizens United. Among them was that the First Amendment, expressing a broad principle that prohibits the government from discriminating between corporations and the news media, consequently, if only implicitly, prohibits the government from exempting newspapers, books, broadcast advocacy and blog sites from a law that suppresses the speech of individuals or entities not favored by the law. Newspapers, networks, and book and blog writers would have an unfair advantage over gagged corporations. To allow that power, would ultimately lead to the regulation or suppression of speech of the formerly exempted.

Kennedy also wrote that the broad protection of the principle behind the First Amendment applied to all individuals, either as persons or collectively in any association, such as a corporation, and that the government could not discriminate between individuals and associations. The identity of a "speaker" is irrelevant and should not carry an arbitrarily assigned stigma or prejudice against such associations. The fact that a group of individuals expressed a position on a candidate or an issue and happened to be expressing it under the aegis of a corporation, or spent money to express such a position or granted another entity (such as Citizens United) the funds to express that position, is irrelevant. The principle applies to all individuals, singly or in groups.

Corporations, the Court asserted, are groups of individuals, and the agreement of those individuals on specific issues, and the leave they grant to a corporation to speak for them on those issues, should not prejudice such an arrangement. The First Amendment does not allow the government to impinge on the right of those individuals to express themselves in such a manner.

By extension, the Court applied the same arguments to the expenditure of money to speak freely in any manner.

The Court's finding was a "close analysis" of the issue - what I call "bean counting" - and not explicitly based on the principle of freedom of speech. It did not touch on the role of property as a means to exercise that freedom. Justice Clarence Thomas concurred with the majority opinion but wrote a rebuttal to it, saying that the whole campaign finance law should be stricken down, and not just that part of it that abridged on corporations' First Amendment rights.

Examine this exchange between Chief Justice John Roberts and the government attorney on the status of corporate money:

House Minority leader Nancy Pelosi of California and her fellow Democrats wish to "amend" the First Amendment in order to prohibit corporations from saying anything or spending anything during national elections. There is some satisfaction to be had in no longer having to identify her as House Speaker. I never liked seeing her wield that gavel. Someone once remarked that a hammer in hand causes one to search for nails to pound in, and she was always searching for nails. She specialized in coffins.

It may be an act of desperation that moves her and her party to push for an "amendment" of the First Amendment in light of President Barack Obama's falling poll numbers -- numbers he seems determined to see fall every time he opens his mouth on any subject - to pull his reelection chances from the jaws of ignominious but well-deserved defeat. Or it may be an expression of defeat but an assurance that the Democrats will stick one more knife into America's back with such an "amendment," to better the party's chances of winning the White House in 2016 by loading the campaign finance dice.

Or it may be to establish a legacy of unprecedented malice and contempt for the country.

Think about it: It costs demagogues and wannabe totalitarians nothing to usurp the Constitution. They are all paid handsomely and enjoy fringe benefits and privileges most Americans could not afford. They are also exempt from having to submit to Obamacare. However, it will cost a concerned electorate time and money to combat and possibly see repealed or declared unconstitutional the blatant and sanctimonious thievery of our liberties and wealth. And that's only if the courts - especially the Supreme Court - is dealing with a full deck and understands the issues and what's at stake.

Or it may be an act of over-confidence that Obama will be reelected this November, regardless of his poll numbers, and here's a sample of what the Democrats plan to foist on the country after all the destructive "hope and change" of the last three and a half years. An amendment to the First Amendment would be no less a guarantee than how the Obamacrats fixed BHO's nomination and probable election in 2008 in several state caucuses and primaries with voter fraud and cooking the electoral books.

One really can't decipher what goes on inside the minuscule minds of Democrats, except that it's bound to be no good. That's for professional strategy watchers to second-guess.

Sporting what looked like a dry-cleaned Confederate Army officer's tunic, Pelosi explained why she wants to amend the First Amendment. She and her Democrat colleagues wish to prohibit corporations, regardless of their status as for-profits or non-profits, from having any role in political debate or in endorsing any candidate or idea. The Democrats harbor an unrelenting animosity for the Citizens United v. Federal Election Commission case of 2010, decided in favor of freedom of speech by the Supreme Court (at least partly; the whole 2002 Bipartisan Campaign Reform Act , a.k.a. the McCain-Feingold Act or "BCRA," ought to have been declared null and void). It weighs in the Democrats' collective political stomach like a helping of Yorkshire pudding, which often has the consistency of a lump of badly set cement.

Justice Anthony Kennedy, writing the majority 5-4 opinion, noted several key but not fundamental issues in Citizens United. Among them was that the First Amendment, expressing a broad principle that prohibits the government from discriminating between corporations and the news media, consequently, if only implicitly, prohibits the government from exempting newspapers, books, broadcast advocacy and blog sites from a law that suppresses the speech of individuals or entities not favored by the law. Newspapers, networks, and book and blog writers would have an unfair advantage over gagged corporations. To allow that power, would ultimately lead to the regulation or suppression of speech of the formerly exempted.

Kennedy also wrote that the broad protection of the principle behind the First Amendment applied to all individuals, either as persons or collectively in any association, such as a corporation, and that the government could not discriminate between individuals and associations. The identity of a "speaker" is irrelevant and should not carry an arbitrarily assigned stigma or prejudice against such associations. The fact that a group of individuals expressed a position on a candidate or an issue and happened to be expressing it under the aegis of a corporation, or spent money to express such a position or granted another entity (such as Citizens United) the funds to express that position, is irrelevant. The principle applies to all individuals, singly or in groups.

Corporations, the Court asserted, are groups of individuals, and the agreement of those individuals on specific issues, and the leave they grant to a corporation to speak for them on those issues, should not prejudice such an arrangement. The First Amendment does not allow the government to impinge on the right of those individuals to express themselves in such a manner.

By extension, the Court applied the same arguments to the expenditure of money to speak freely in any manner.

The Court's finding was a "close analysis" of the issue - what I call "bean counting" - and not explicitly based on the principle of freedom of speech. It did not touch on the role of property as a means to exercise that freedom. Justice Clarence Thomas concurred with the majority opinion but wrote a rebuttal to it, saying that the whole campaign finance law should be stricken down, and not just that part of it that abridged on corporations' First Amendment rights.

Examine this exchange between Chief Justice John Roberts and the government attorney on the status of corporate money:

In 2009, when the Supreme Court first heard oral arguments in the Citizens Unitedcase, Deputy Solicitor General Malcolm Stewart told the court that the administration believed the Constitution allowed the government to ban a corporation from using its general treasury funds to publish a book if the book advocated voting for something. "Take my hypothetical," Chief Justice John Roberts said to Stewart as he asked him about what kind of books the Obama administration believed it could constitutionally ban, "... This [book] is a discussion of the American political system, and at the end it says: Vote for X." "Yes," said Deputy Solicitor General Stewart, "our position would be that the corporation would be required to use PAC [political action committee] funds rather than general treasury funds." Roberts followed up: "And if they didn't, you could ban it?" "If they didn't, we could prohibit the publication of the book using corporate treasury funds," Stewart answered.

General treasury funds? Political action committee funds? Piggy bank funds? Money market funds? This is an example of bean-counting that eludes the Court, and Chief Justice Roberts did not or was not able to address the issue in terms of fundamentals. It shouldn't matter where the money comes from. It's private wealth being expended for private reasons.

Let us now turn to the perspective of that Wise Wasp Lady and former Speaker of the House. At the very beginning, she targets the Court's 2010 Citizens Unitedfinding.

"We have a clear agenda in this regard: Disclose, reform the system reducing the role of money in campaigns, and amend the Constitution to rid it of this ability for special interests to use secret, unlimited, huge amounts of money flowing to campaigns," Pelosi said at her Thursday press briefing.

It's so unfair, isn't it? All those secret, unlimited, huge amounts of money flowing to campaigns. Which campaigns? Whose campaigns? Doubtless, Republican campaigns. The Democrats never did such a thing, don't you know? So this proposed abridgement of the First Amendment would not apply to the Democrats. Exempt from that abridgement would be People for the American Way, Media Matters, Common Cause, and any of George Soros's well-heeled front groups. They'll find a way around the amended Amendment and keep under wraps and out of sight, but it will be perfectly legal - until someone uncovers its illegality.

"I think one of the presenters [at a Democratic forum on amending the Constitution] yesterday said that the Supreme Court had unleashed a predator that was oozing slime into the political system, and that, indeed, is not an exaggeration," said Pelosi. "Our Founders had an idea. It was called democracy. It said elections are determined by the people, the voice and the vote of the people, not by the bankrolls of the privileged few. This Supreme Court decision flies in the face of our Founders' vision and we want to reverse it."

It is difficult not to laugh at the first sentence. From the very beginning - nay, long before Obama set foot in the White House - the Democrat Party, with Obama as its iconic mover and shaker, has been responsible for a continuing flow of oozing and poisonous slime, such as TARP, Obamacare, the taxpayer-funded but failing "green" companies, the takeover of General Motors to reward and secure the unions, the creation of a kingdom of czardoms, cash-for-clunkers, the subsidy of various "artistic" groups to promote Obama's agenda, his opposition to making the country oil-independent of parasitical Mideast régimes, Fast & Furious, and an attempted court-packing with two individuals friendly to all manner of collectivized rights, not individual rights. Among his other depredations, too numerous to list here.

Yes, Nancy, the Founders had an idea that escapes you. It wasn't "democracy" that they slaved to create, but a republican form of government whose Constitution specifically barred Congress and the Executive branch from infringing on individual rights. Built into that Constitution was a mechanism that would protect individuals from the mob rule of democracy. It says: the power of the people stops here. Not that Congress has been listening for the past century.

And, Nancy, you weren't clear on what exactly you want to reverse: the Founders' vision, or a Supreme Court decision that denies you the power to put corporations in government-mandated straight-jackets.

Pelosi was joined in her whimsical reflections on the Founders by two other enemies of the First Amendment.

The participants noted that several members in both houses of Congress have offered various versions of an amendment to reverse Citizen United v. FEC and curb unwanted speech by corporations. Rep. Jim McGovern (D.-Mass.) is one of the members sponsoring an amendment. (Italics mine.)

"I've introduced a People's Rights Amendment, which is very simple and straightforward," Rep. Jim McGovern (D.-Mass.) said at the forum. "It would make clear that all corporate entities, for-profit and non-profit alike, are not people with constitutional rights.

"It treats all corporations, including incorporated unions and nonprofits, in the same way, as artificial creatures of the state that we, the people, govern, not the other way around," said McGovern.

Mr. McGovern is aptly named. No one ever said that corporations were "people." And note that he repeats that hoary old communist chestnut that corporations govern and hold political power, and it oughtn't to be allowed. Notice also that their speech is "unwanted." Unwanted by whom? The "people"? Which "people"? Does Mr. McGovern include himself as one of those "people"?

No, corporations are not "creatures of the state." They are entities formed for the protection of private property. Very likely McGovern would have advocated another old idea, that of granting all corporations "federal charters." Just as they did in Britain. Remember the East India Company? The royally chartered trading company whose tea was dumped into Boston Harbor? Americans fought a war against Britain for many reasons, and one of them was to get from under the powers and weight of "federally" chartered companies granted monopolies in trade.

Rep. Donna Edwards (D.-Md.) explained the basic principle this move to amend the Constitution is advancing.

"In Citizens United, what the court said is that Congress has no authority to regulate this kind of political speech," said Edwards. "And so all of these constitutional amendments go to this question of giving Congress the authority that the Supreme Court, I think wrongly, decided isn't within Congress's constitutional--our constitutional purview.

"And so, you know, the traditional rights of free speech that we have known as citizens would not be disturbed by any of these constitutional amendments," said Edwards. "But what it would do is it would say, all of the speech in which, whether it's corporations or campaign committees and others engage in, would be able to be fully regulated under the authority of the Congress and--and under our Constitution."

"I mean, in my view, a corporation is not a person. It is not an individual," said Edwards. "The rights that it has are those that are granted by the state, granted by the, by the Congress."

Donna Edwards doesn't seem certain what she is saying. Bluntness is not her style. She dances around the idea that Congress or a delegated committee of empowered interlopers, such as the Federal Election Commission, should regulate speech. Well, what would Congress or the FEC allow a corporation to say? Would it depend on how much money the corporation was willing to spend? Or would it depend on whether or not Congress or the FEC agreed with what the corporation wished to say? This idea is as fuzzy in her head as it is in the other forum heads.

She does repeat a fallacy subscribed to by both Democrats and Republicans: that freedom of speech is "traditional." No, it isn't traditional. It isn't a ritual or practice whose origins are lost in the mists of time, something to be updated or discarded or preserved because it's old fashioned or because it's been done over seven score generations. Freedom of speech is integral to the individual in society. If a man must speak out in favor of justice or to defend his life and property, he must be able to speak without hindrance or obstruction, provided it is by means of his property or that of another individual or a corporation.

But the campaign finance law already regulates the property - that is, the money - which is an issue that has not been addressed by the Supreme Court, at least it wasn't in Citizens United. Pelosi's forum wishes to close that limited route of expression entirely.

The Founders denied Congress the authority to prohibit speech for any reason. Nevertheless, Pelosi et al want it for specious reasons, one of them being that Democrats don't wish to have to compete in the realm of political persuasion.

This is the leitmotif of ambitious, not-yet-ready-for-prime-time tyrants. Nancy Pelosi, of course, would like the amendment to the First Amendment hammered out behind closed doors, and once it's passed the House and the Senate and is on its way to the Oval Office, then we can see what's in it.

Censorship for some, for now. Followed inexorably by censorship for all, forever.

In 2009, when the Supreme Court first heard oral arguments in the Citizens Unitedcase, Deputy Solicitor General Malcolm Stewart told the court that the administration believed the Constitution allowed the government to ban a corporation from using its general treasury funds to publish a book if the book advocated voting for something. "Take my hypothetical," Chief Justice John Roberts said to Stewart as he asked him about what kind of books the Obama administration believed it could constitutionally ban, "... This [book] is a discussion of the American political system, and at the end it says: Vote for X." "Yes," said Deputy Solicitor General Stewart, "our position would be that the corporation would be required to use PAC [political action committee] funds rather than general treasury funds." Roberts followed up: "And if they didn't, you could ban it?" "If they didn't, we could prohibit the publication of the book using corporate treasury funds," Stewart answered.

General treasury funds? Political action committee funds? Piggy bank funds? Money market funds? This is an example of bean-counting that eludes the Court, and Chief Justice Roberts did not or was not able to address the issue in terms of fundamentals. It shouldn't matter where the money comes from. It's private wealth being expended for private reasons.

Let us now turn to the perspective of that Wise Wasp Lady and former Speaker of the House. At the very beginning, she targets the Court's 2010 Citizens Unitedfinding.

"We have a clear agenda in this regard: Disclose, reform the system reducing the role of money in campaigns, and amend the Constitution to rid it of this ability for special interests to use secret, unlimited, huge amounts of money flowing to campaigns," Pelosi said at her Thursday press briefing.

It's so unfair, isn't it? All those secret, unlimited, huge amounts of money flowing to campaigns. Which campaigns? Whose campaigns? Doubtless, Republican campaigns. The Democrats never did such a thing, don't you know? So this proposed abridgement of the First Amendment would not apply to the Democrats. Exempt from that abridgement would be People for the American Way, Media Matters, Common Cause, and any of George Soros's well-heeled front groups. They'll find a way around the amended Amendment and keep under wraps and out of sight, but it will be perfectly legal - until someone uncovers its illegality.

"I think one of the presenters [at a Democratic forum on amending the Constitution] yesterday said that the Supreme Court had unleashed a predator that was oozing slime into the political system, and that, indeed, is not an exaggeration," said Pelosi. "Our Founders had an idea. It was called democracy. It said elections are determined by the people, the voice and the vote of the people, not by the bankrolls of the privileged few. This Supreme Court decision flies in the face of our Founders' vision and we want to reverse it."

It is difficult not to laugh at the first sentence. From the very beginning - nay, long before Obama set foot in the White House - the Democrat Party, with Obama as its iconic mover and shaker, has been responsible for a continuing flow of oozing and poisonous slime, such as TARP, Obamacare, the taxpayer-funded but failing "green" companies, the takeover of General Motors to reward and secure the unions, the creation of a kingdom of czardoms, cash-for-clunkers, the subsidy of various "artistic" groups to promote Obama's agenda, his opposition to making the country oil-independent of parasitical Mideast régimes, Fast & Furious, and an attempted court-packing with two individuals friendly to all manner of collectivized rights, not individual rights. Among his other depredations, too numerous to list here.

Yes, Nancy, the Founders had an idea that escapes you. It wasn't "democracy" that they slaved to create, but a republican form of government whose Constitution specifically barred Congress and the Executive branch from infringing on individual rights. Built into that Constitution was a mechanism that would protect individuals from the mob rule of democracy. It says: the power of the people stops here. Not that Congress has been listening for the past century.

And, Nancy, you weren't clear on what exactly you want to reverse: the Founders' vision, or a Supreme Court decision that denies you the power to put corporations in government-mandated straight-jackets.

Pelosi was joined in her whimsical reflections on the Founders by two other enemies of the First Amendment.

The participants noted that several members in both houses of Congress have offered various versions of an amendment to reverse Citizen United v. FEC and curb unwanted speech by corporations. Rep. Jim McGovern (D.-Mass.) is one of the members sponsoring an amendment. (Italics mine.)

"I've introduced a People's Rights Amendment, which is very simple and straightforward," Rep. Jim McGovern (D.-Mass.) said at the forum. "It would make clear that all corporate entities, for-profit and non-profit alike, are not people with constitutional rights.

"It treats all corporations, including incorporated unions and nonprofits, in the same way, as artificial creatures of the state that we, the people, govern, not the other way around," said McGovern.

Mr. McGovern is aptly named. No one ever said that corporations were "people." And note that he repeats that hoary old communist chestnut that corporations govern and hold political power, and it oughtn't to be allowed. Notice also that their speech is "unwanted." Unwanted by whom? The "people"? Which "people"? Does Mr. McGovern include himself as one of those "people"?

No, corporations are not "creatures of the state." They are entities formed for the protection of private property. Very likely McGovern would have advocated another old idea, that of granting all corporations "federal charters." Just as they did in Britain. Remember the East India Company? The royally chartered trading company whose tea was dumped into Boston Harbor? Americans fought a war against Britain for many reasons, and one of them was to get from under the powers and weight of "federally" chartered companies granted monopolies in trade.

Rep. Donna Edwards (D.-Md.) explained the basic principle this move to amend the Constitution is advancing.

"In Citizens United, what the court said is that Congress has no authority to regulate this kind of political speech," said Edwards. "And so all of these constitutional amendments go to this question of giving Congress the authority that the Supreme Court, I think wrongly, decided isn't within Congress's constitutional--our constitutional purview.

"And so, you know, the traditional rights of free speech that we have known as citizens would not be disturbed by any of these constitutional amendments," said Edwards. "But what it would do is it would say, all of the speech in which, whether it's corporations or campaign committees and others engage in, would be able to be fully regulated under the authority of the Congress and--and under our Constitution."

"I mean, in my view, a corporation is not a person. It is not an individual," said Edwards. "The rights that it has are those that are granted by the state, granted by the, by the Congress."

Donna Edwards doesn't seem certain what she is saying. Bluntness is not her style. She dances around the idea that Congress or a delegated committee of empowered interlopers, such as the Federal Election Commission, should regulate speech. Well, what would Congress or the FEC allow a corporation to say? Would it depend on how much money the corporation was willing to spend? Or would it depend on whether or not Congress or the FEC agreed with what the corporation wished to say? This idea is as fuzzy in her head as it is in the other forum heads.

She does repeat a fallacy subscribed to by both Democrats and Republicans: that freedom of speech is "traditional." No, it isn't traditional. It isn't a ritual or practice whose origins are lost in the mists of time, something to be updated or discarded or preserved because it's old fashioned or because it's been done over seven score generations. Freedom of speech is integral to the individual in society. If a man must speak out in favor of justice or to defend his life and property, he must be able to speak without hindrance or obstruction, provided it is by means of his property or that of another individual or a corporation.

But the campaign finance law already regulates the property - that is, the money - which is an issue that has not been addressed by the Supreme Court, at least it wasn't in Citizens United. Pelosi's forum wishes to close that limited route of expression entirely.

The Founders denied Congress the authority to prohibit speech for any reason. Nevertheless, Pelosi et al want it for specious reasons, one of them being that Democrats don't wish to have to compete in the realm of political persuasion.

This is the leitmotif of ambitious, not-yet-ready-for-prime-time tyrants. Nancy Pelosi, of course, would like the amendment to the First Amendment hammered out behind closed doors, and once it's passed the House and the Senate and is on its way to the Oval Office, then we can see what's in it.

Censorship for some, for now. Followed inexorably by censorship for all, forever.

Edward Cline is the author of the Sparrowhawk novels set in England and Virginia in the pre-Revolutionary period, of several detective and suspense novels, and three collections of his commentaries and columns, all available on Amazon Books. His essays, book reviews, and other articles have appeared in The Wall Street Journal, the Journal of Information Ethics and other publications. He is a frequent contributor to Rule of Reason, Family Security Matters, Capitalism Magazine and other Web publications.     


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