Just What Is It That Constitutes Free Speech?

Congress debating whether legislation can overturn Supreme Court ruling equating spending money with speech

There’s an interesting question being raised in Congress in regard to what constitutes free speech.

The Senate on Monday invoked cloture in the debate over Senate Joint Resolution 19, which would amend the Constitution to allow Congress and the states to regulate how much money can be spent to influence elections. Cloture is a vote to end debate and clear the way for an up or down vote on the floor.

The amendment would be the 28th to the Constitution. It would have to pass both houses by a two-thirds majority and be ratified by three-fourths of the states.  Almost everyone agrees that has  virtually no chance of happening.

But then, legislation that has no chance of happening is the favorite menu item for the current Congress, which is all about scoring political points on ideological issues without regard to whether or not such proposals actually have merit when it comes to governing the country.

Here is the text of the proposed amendment:

Article—

`Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

`Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

`Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.'.

In a nutshell, it is about finding a way to negate the Supreme Court ruling in Citizens United which held that corporations are people and spending money is their language, therefore limiting how much money they can spend is limiting their “free speech.”

Tied up in all the doublespeak somewhere is the idea that the Founding Fathers would have highly approved of influence peddling and purchasing elections and that is what they meant when the First Amendment was written.

I’m one of those people who have always admired the framers of the Constitution. One reason is that they took so little space to convey what it was they meant and put it clear, easy to understand language.

The first amendment, for example, reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

That’s it. One sentence, covering freedom of and freedom from religion, freedom of speech, freedom of the press, freedom of assembly and freedom to petition to have grievances addressed – protection for anything James Madison thought constituted expressing an opinion.

It says nothing about spending money, financing campaigns, or raising money to support political candidates or causes. Call me crazy, but I think if Madison had thought spending money was included in the rights to expression that needed to be protected, he would have included it.

Regardless of how the vote on SJ 19 turns out, or whether or not there is ever a vote on the DISCLOSE Act, a bill that proposes to do basically the same thing but in the form of legislation rather than Constitutional amendment, the interesting question at hand is what constitutes free speech.

Should speech, for example, require a speaker, one with an actual face that can be identified as the source of the speech and be held accountable for its content?

Does freedom of speech give you the right to lie about someone else, distort their position on issues or malign their character with false accusations?

Does freedom of speech give you the right to stand on the neck of someone else to drown out their voice and make sure yours is the only one that can be heard?

Or maybe, just maybe, does allowing those with the most money and the most power to subdue the voices of those attempting to express their grievances and petition their government for redress, violate the very right it claims to protect?

It’s worth thinking about.

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