The Political Hat

” Congress shall make no law… abridging the freedom of speech, or of the press”

— 1^st Amendment

     This part of the 1^st Amendment seems rather straightforward.  The government can’t interfere with a persons right to speak freely, or communicate his or her thoughts.  While there might be consequences such as with slander or incitement to violence, those are consequences, not prior restraint.

     Unfortunately, nearly half of the Supreme Court considers the 1^st Amendment to be a collective right to be used when the state deems that it is in its best interest.  In other words, the idea that the 1^st Amendment protects people from the government is being tossed out in favor of the mistaken belief that it facilitates the government at its whim.

     One such case where freedom of speech narrowly survived was McCutcheon v. Federal Election Commission.  Justice Breyer (the leading anti-free speech justice) stated that:

“Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.”

     In effect, Breyer believes that the 1^st Amendment is meant to further democracy, and that when free speech results in one person having a bigger soap box than another, than censoring the person with the larger soap box to the point where both voices are heard equally is absolutely Constitutional.  In effect, this means that you are only allowed to say what you want if it doesn’t conflict with the government’s ideas of what is best.  As David Bernstein notes:

“Justice Breyer’s dissent today shows the way, as he revives the old Progressive conception of freedom of speech as serving instrumental purposes (which he calls “First Amendment interests”), rather than protecting individual rights or reining in potential government abuses.  And once we identify those ‘First Amendment interests,’ we must limit freedom of speech to ensure that they are advanced.”

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