A proposal was made to repeal the 1st Amendment of the US Constitution.

[Cow Poke]

For some reason this always reminds me of the joke where the guy is trying to distract the firing squad by trying to tell them there's a fire.

OK, that reminds me of my Pastor, when I was a young staff member, who often "acted out" parts of his sermon. One Sunday, in the middle of his sermon on being "slaves to sin", he pointed to the back of the building and exclaimed "somebody is stealing coats off the wall"... I figured it was part of his sermon, and was really getting into it! He stopped again, and said, "No, right now - in the back....."

"come on, preach it!"

No!!!! And he stepped off the platform, pointing to the back of the Church where, sure enough, somebody was collecting coats!!!!!

[rogue06]

For some reason this always reminds me of the joke where the guy is trying to distract the firing squad by trying to tell them there's a fire.

Back near the end of the Cold War a delegation of American businessmen visited several Eastern Europe factories. At one point one of them asked how they respond to workers going on strike. The interpreter responded that they don't strike because they know that they would be shot.

The businessmen found this revelation unsettling and it cast a pall over the rest of their tour that day. That evening a sheepish interpreter informed them during dinner that he had misspoken. He didn't mean that the workers would be shot but rather that they would be fired.

[Mountain Man]

See what I mean! He's a complete phony and blowhard.

Unless there is evidence showing otherwise, I'm fairly certain that Limbaugh was simply referencing it as a past event and wasn't saying that it was something that happened recently.

[Joel]

The one that links to a document that's also more than a year old? Yes.

While it claims there is a vote to repeal the first amendment, the text fails to support that claim.

That second article links to the results of the actual vote: http://www.senate.gov/legislative/LI...n=2&vote=00261
So there was a vote, down party line, on September 11, 2014, 01:46 PM
It was regarding S.J.Res. 19.
And if you search for that: http://www.manchin.senate.gov/public...4-d5f743295c6b
I see that it does in fact have the language that is quoted in the article.

And the interpretation given in the article seems likely (given the Court's interpretations of other parts of the Constitution, such as the commerce clause.)

[Roy]

That second article links to the results of the actual vote: http://www.senate.gov/legislative/LI...n=2&vote=00261
So there was a vote, down party line, on September 11, 2014, 01:46 PM
It was regarding S.J.Res. 19.
And if you search for that: http://www.manchin.senate.gov/public...4-d5f743295c6b
I see that it does in fact have the language that is quoted in the article.

And the interpretation given in the article seems likely (given the Court's interpretations of other parts of the Constitution, such as the commerce clause.)

But it would not repeal the first amendment. At most it would repeal one part of the first amendment in specific circumstances - and even that is a stretch, since it would not place any limitation on what could be spoken or published, only on how often and how expensively.

[Joel]

But it would not repeal the first amendment. At most it would repeal one part of the first amendment in specific circumstances - and even that is a stretch, since it would not place any limitation on what could be spoken or published, only on how often and how expensively.

The commerce clause has usually been interpreted broadly to permit regulation of anything that could possibly influence interstate commerce (i.e. almost anything), and regulate is interpreted to mean any law, even total banning. An example is the federal ban on personal consumption and growing of marijuana. (Because it's argued that even personal, private actions can possibly influence interstate commerce.)

In this proposed amendment, the language explicitly includes things that "influence elections". As with the commerce clause, it is would likewise be argued that almost anything can influence elections. And the precedent is that "regulate" pretty much means whatever Congress wants to do to it.

On the other hand, it is true that it only applies to the subset of "the raising and spending of money." But most speech and expression involves the spending of money. Arguably, the amendment would not apply to having normal conversations with people or shouting from a street corner. But if you spent a penny, it's fair game. E.g. you post something on your website that you pay hosting for? Something you post on theologyweb, when you pay for an internet connection and a computer to be able to access? You spent any money at all in making a video that you post on youtube? (presumably you at least had to buy a camera.)

Surely this amendment arose along with the outcry against rulings like rulings like Citizens United, and so one of the intents of an amendment such as this is to overturn rulings like that. Recall that Citizens United is a non-profit organization that made a film about Hillary Clinton, and the question was whether they could be banned from showing the film. Thus one of the intents is to enable the federal government to do things like ban political films. The FEC argued in that case that, as another example, they could ban digital distribution of political books on Amazon. It seem that according to Justice Kennedy's majority opinion, an amendment like this would allow Congress to suppress political speech in newspapers, books, television, and blogs.

[Adam]

Sounds good, Joel,
But you're such an unreconstructed strict constructionist Libertarian that I don't trust you to have presented this fairly, and looks like merely a "slippery slope" objection, anyway. I would assume the bill still allows one to spend money influencing elections, you just have to report it, and if it's a huge amount you are limited to maximums on individual contributions.
So no, get rid of Citizens United! The U. S. must not be an oligarchy!

[Joel]

Sounds good, Joel,
But you're such an unreconstructed strict constructionist Libertarian that I don't trust you to have presented this fairly, and looks like merely a "slippery slope" objection, anyway.

To be clear, the interpretation in that article and in my post is not how I would interpret the text of the amendment. Rather it is the interpretation that is consistent with the Court's history of interpretation, and thus seems to me to be the way the Court would most likely interpret it. And I gave my reasonings. What don't you agree about them?

I would assume the bill still allows one to spend money influencing elections, you just have to report it, and if it's a huge amount you are limited to maximums on individual contributions.

The amendment itself does not restrict any influencing of elections. The amendment would give Congress the power to do so, however any future Congress sees fit. I wasn't trying to predict what Congress will do with that power. I'm anticipating how the court will interpret what power the amendment gives to Congress.

It's not that Congress (or by extension executive agencies like the FEC) will necessarily do those scary things with that power. The scary thing is that the federal government would gain that power at all. And maybe you trust the current Congress/FEC not to use such power in bad ways. But do you trust that no future (possibly Republican dominated or Democratic dominated) Congress/FEC will use the power to suppress political speech if they have that power? After all, the FEC did actually bar a non-profit from showing a film they made.

So no, get rid of Citizens United! The U. S. must not be an oligarchy!

I haven't encountered a cogent argument against Citizens United. You think the FEC should have the power to bar non-profit organizations from showing political films that they make? Or to bar a union from hiring a writer to author a political book (as argued by the FEC in Citizens United)?

Most of the arguments I've seen against it are straw men (e.g., saying that the ruling was based on corporate personhood, even though the ruling doesn't mention corporate personhood).
The ruling isn't based on corporate rights; it's based on individual rights. Individuals have the right to use their resources to publish their political expressions, so therefore they also have the right to pool their resources to publish a common expression.

Or suppose individuals are limited to spending a certain amount (say $100). Suppose there is some project that an individual cannot now do (like hire an author or make a high-quality film). Should a group of like-minded individuals not at least be able pool their individual $100 contributions to undertake a larger project? If their organization also has a $100 limit, then they are barred from pooling. If their organization has a higher limit (whatever it is) it limits the amount of pooling allowed, thus restricts the scope of projects that these individuals are permitted to do in association. It ends up being an additional restriction on these individuals. And it is just as much a restriction on democratic grass-roots efforts as it is on oligarchic ones.

[Adam]

Yes, corporate personhood is the worst of it, based on Roscoe Conkling's lie around 1880. Renouncing that would solve lots of problems. Are you game for that? or are you just a shill for billionaires?
(As for me calling you a strict constructionist Libertarian, no offense intended. I used to be one, myself.)

[Joel]

Yes, corporate personhood is the worst of it, based on Roscoe Conkling's lie around 1880. Renouncing that would solve lots of problems. Are you game for that? or are you just a shill for billionaires?
(As for me calling you a strict constructionist Libertarian, no offense intended. I used to be one, myself.)

I'm no defender of existing corporate law. I think I remember someone arguing that one benefit of the corporate personhood concept is that it makes the corporation an entity that can be sued, rather than having to indentify and go after individuals responsible, which is often practicably impossible. But I don't know if the concept of corporate personhood is required for that.

But as I said, the Citizens United decision did not refer to corporate personhood, and its reasoning would be unaffected by the absence of corporate personhood.

[Roy]

Surely this amendment arose along with the outcry against rulings like rulings like Citizens United, and so one of the intents of an amendment such as this is to overturn rulings like that. Recall that Citizens United is a non-profit organization that made a film about Hillary Clinton, and the question was whether they could be banned from showing the film. Thus one of the intents is to enable the federal government to do things like ban political films.

That doesn't follow. If I moved to South Africa one might question whether I could then eat fresh strawberries in January, but it would be folly to conclude that thus that was the intent.

Also, you have failed to concede that this proposition does not actually repeal the first amendment.

[Joel]

That doesn't follow.

Fair enough. It was a probable argument, not a logically certain one. Doing a very quick search, I haven't found any articles giving the arguments for the amendment, so I don't know with certainty what the intent was.

Also, you have failed to concede that this proposition does not actually repeal the first amendment.

I concede that this proposed amendment does not repeal the first amendment. The title of the thread is pretty hyperbolic.

It seems to remove only some of the free speech protection of the first amendment. And I'd say that it abridges the part it is most important to protect: political expression.

[mikewhitney]

Practically speaking, almost nobody is a First Amendment absolutist. Few people would defend laws against extortion, threats, slander, etc. even though these contradict a literal reading of the First Amendment.

The literal meaning poses no problem in the areas you have mentioned. The First Amendment is essentially unamendable. Congress is given no power to restrict free speech. Any action by Congress against free speech is null and void.
Your point about there being reasonable restriction against free speech then only would apply at the state level, if the individual state constitutions allow such restrictions. So people could be an absolutist against Congress violating our right to free speech.

[One Bad Pig]

Fair enough. It was a probable argument, not a logically certain one. Doing a very quick search, I haven't found any articles giving the arguments for the amendment, so I don't know with certainty what the intent was.


I concede that this proposed amendment does not repeal the first amendment. The title of the thread is pretty hyperbolic.

It seems to remove only some of the free speech protection of the first amendment. And I'd say that it abridges the part it is most important to protect: political expression.

Not necessarily the most important now, but freedom of political expression was almost certainly the driving factor behind the first amendment.

[Roy]

Fair enough. It was a probable argument, not a logically certain one. Doing a very quick search, I haven't found any articles giving the arguments for the amendment, so I don't know with certainty what the intent was.

I concede that this proposed amendment does not repeal the first amendment. The title of the thread is pretty hyperbolic.

Thanks for that.

It seems to remove only some of the free speech protection of the first amendment. And I'd say that it abridges the part it is most important to protect: political expression.

But again, it doesn't put any restrictions on what can be said, only how and how often it can be said. Your own examples of how this might restrict speech are both concerned with style rather than substance. I see this amendment as being similar to laws in the UK and (I think) Australia which reduce the amount of spending on electoral campaigns in order to counteract attempts to 'buy' the election. They don't restrict political impression, they only restrict parties' ability to outspend the opposition on advertising.