On the Proper Reach of the First Amendment

George Anastaplo

 

A letter to editors, February 16, 2010

The recent United States Supreme Court decision in the Citizens United case seems to permit business corporations and labor unions to spend as lavishly as they wish in our political campaigns. Critics of that decision go so far, in response, as to call for an amendment to the Constitution to permit strict regulation by both Congress and the State legislatures of such expenditures.

But it is not only here that the Supreme Court has gone woefully astray in interpreting the Speech and Press provisions of the First Amendment, extending the historic   protection of that provision to obscenity, pornography, commercial advertising, and much more. Prudence cautions that any constitutional amendment here runs the risk of confirming, in effect, some of the even more dubious things that the Supreme Court has done the past century about such matters. We need, indeed, development of arguments about essentially political‑discussion concerns of the Speech and Press provisions of the First Amendment, provisions intended to protect the extensive, if not even unlimited, right and duty of the People to discuss public affairs.

At the root of the steady corruption here, to which we have become accus­tomed, may be “the clear and present danger” test proclaimed by the Supreme Court in 1919, thereby decisively limiting the exercise of that right to freedom of speech as originally understood. We, as citizens, are entitled, if not even obliged, to challenge vigorously (but in a prudent manner) what the Supreme Court has said and done, again and again, both in improperly limiting and in dangerously expanding the reach of the First Amendment.

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