Not Since Prohibition and the Alien and Sedition Acts

All Judiciary Committee Democrats yesterday voted against an amendment offered by Senator Cruz to substitute language of the First Amendment itself for a proposed Constitutional amendment that actually would gut the First Amendment.

Before quoting some Republican leaders on the committee, we think it worth noting the extreme opposition that Democrats are receiving from their erstwhile ally, the ACLU.  The ACLU opposes the effort stating (emphasis added):

The American Civil Liberties Union strongly opposes S.J. Res. 19, a proposed constitutional amendment, sponsored by Sen. Tom Udall (D-NM), that would severely limit the First Amendment, lead directly to government censorship of political speech and result in a host of unintended consequences that would undermine the goals the amendment has been introduced to advance—namely encouraging vigorous political dissent and providing voice to the voiceless, which we, of course, support. As we have said in the past, this and similar constitutional amendments would “fundamentally ‘break’ the Constitution and endanger civil rights and civil liberties for generations.”

Were it to pass, the amendment would be the first time, save for the failed policies of Prohibition, that the Constitution has ever been amended to limit rights and freedoms.

A few highlights of Ranking Republican Member Senator Grassley’s speech:

I made the case why we should not amend the Bill of Rights for the first time to eliminate protection for core political speech.  . . . As I said then, by criminalizing speech intended to influence elections, such as speech criticizing elected officials, it would effectively reenact the Alien and Sedition Acts.  The amendment represents a radical threat to constitutional rights. 

Speech concerning who the people’s elected representatives should be; speech setting the agenda for public discourse; speech designed to open and change the minds of our fellow citizens; speech criticizing politicians; and speech challenging government policy are all vital rights.  This amendment puts all of them in jeopardy upon penalty of imprisonment. 

This amendment will not advance self-government or protect the political process from corruption.  Just the opposite.  It would harm the rights of ordinary citizens, individually and in free association, to advance their political views and to elect candidates who support their views.  And by limiting campaign speech, it would limit the information that voters receive in deciding how to vote.  It would limit the amount that people can spend on advancing what they consider to be the best political ideas.    

That would create not a chilling effect on speech, but a freezing effect.  This does not further democratic self-government.  . . . We must preserve our Bill of Rights including our rights to free speech.  We must not allow officials to diminish and ration that right.  

As Senator Mike Lee concluded:

One of the most important of such “auxiliary precautions” is the First Amendment and its protections of the freedom of speech.

The proposed amendment would cripple this protection and irrevocably damage our most precious possession as Americans: our freedom