Senate Votes to Consider Speech-Restricting Constitutional Amendment


Today the Senate decided to consider a constitutional amendment that aims to "advance democratic self-government and political equality" by restricting freedom of speech. The 79 senators voting for the cloture motion included 47 Democrats and two independents who think that's a swell idea, plus a bunch of Republicans who will end up voting against the measure but want to have a debate about whether the First Amendment is unacceptably permissive as it stands. Since a constitutional amendment requires approval by two-thirds of the Senate (and then two-thirds of the House, followed by two-thirds three-fourths of state legislatures), there is no way this measure, known as SJR 19, will pass, but the debate should be entertaining, and maybe even enlightening.

If it did pass, this amendment would mark the second time in U.S. history that Americans decided the Constitution should be changed to restrict individual freedom. So far the only such change was the 18th Amendment, which established national alcohol prohibition and was repealed 14 years later by the 21st. Rather than outlawing the manufacture and sale of alcoholic beverages, SJR 19 would let Congress and state legislatures "regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections."

Since spending of some sort is necessary to communicate with a mass audience, and since a wide swath of political speech could be understood as favoring a particular electoral outcome, the censorship permitted by this authority is vast. It goes far beyond the supporters' avowed goal of reversing Citizens United v. FEC, the 2010 decision in which the Supreme Court overturned restrictions on political speech by unions and corporations, and McCutcheon v. FEC, the 2014 decision that eliminated the overall limit on giving to federal candidates.

That's assuming you ignore or misunderstand the significance of Section 3, which says "nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press." That exception swallows the entire amendment once you recognize that "the press" in the context of the First Amendment refers to a technology of mass communication and not, as the amendment's backers seem to think, The New York Times and its competitors.