Commentary Magazine


First Amendment Defenders

James Taranto’s interview with First Amendment lawyer Floyd Abrams is well worth a read. Abrams chastizes critics of the Supreme Court’s McCain-Feingold ruling:

And my reaction is sort of a John McEnroe: You cannot be serious! We’re talking about the First Amendment here, and we’re being told that an extremely vituperative expression of disdain for a candidate for president is criminal in America?

He also reveals that the ACLU favored the Supreme Court’s decision, but has been very quiet about it. Abrams warns its board:

Look, you bring cases, such as one to strike down a law of Congress which was aimed at “virtual child pornography”—not real children being filmed, but otherwise wholly pornographic. . . . I said: You didn’t do it because you wanted to protect the folks who like to watch child pornography. You did it because you thought the government shouldn’t be trusted to make content decisions about who watches anything, and because you thought the principle of avoiding governmental control over what is available on the Internet was so strong. . .I warned that I thought the worst thing the ACLU could do is to become just another liberal public-interest group.

But his essential point, which has eluded the former constitutional law professor who now occupies the Oval Office, is that what is at stake here is core protected political speech. But Obama is not alone in missing (or choosing to miss) the point. As Abrams notes, nearly all media outlets roundly criticized the Court’s ruling. Abrams opines that the reason is two-fold: journalists don’t understand that they work for corporations (which were protected by the Court’s decision) and they confuse “democracy” (or more precisely, a sort of populist leveling in which elections are micro-managed to enforce a level playing field) with the proper constitutional interpretation of the First Amendment. And of course, they don’t appreciate the competition that may come from unions and corporations choosing to inject information the press hasn’t seen fit to print.

Could there be any better reminder of the importance of Supreme Court Justices who remain faithful to the text and meaning of the Constitution? When the president, Congress, and the media itself lose their way and urge us to abandon First Amendment principals, there are a select group that can set them straight. The composition of the Court may change soon again, and with it, the First Amendment may once again be up for grabs.