Sorry, Chuck Schumer, Ted Cruz is right about Democrats’ plans to repeal political speech protections in the First Amendment

Sen. Ted Cruz (R-TX) touched a nerve when he blasted Senate Democrats for the constitutional amendment they want to pass that would ostensibly repeal the political speech protections of the First Amendment.

Politico Magazine ran a piece earlier this week by Sen. Chuck Schumer (D-NY) and Rep. Ted Deutch (D-FL) in which they claimed Cruz is wrong because of certain “balancing tests” on free speech.

Basically, the two Democrats compare their absurdly unreasonable constitutional amendment to completely reasonable limitations on free speech, including safety restrictions, laws against libel, and — drumroll, please — prohibitions on child pornography. Yeah, really, they went there (emphasis added):

Sen. Cruz’s argument at a Judiciary hearing that any restriction on speech will cause an inexorable slide into censorship and tyranny defies the constitutional tradition of balancing the right to free speech with other important ideals like safety, privacy and democratic equality. The first balancing test is safety: Does Sen. Cruz really believe that everyone should be allowed to falsely cry “fire” in a crowded theater? Another is privacy: Libel laws protect against the use of speech to defame or slander without evidence. Anti-child pornography laws are an eminently justifiable regulation on the First Amendment for both safety and privacy reasons. Does Sen. Cruz oppose those? A third balancing test for the First Amendment should be a political system that has an equality of speech, which is why campaign spending limits are so important.

There are, of course, some limitations on free speech. You can’t shout “fire” in a crowded theater (Schenck v. United States) because that represents a threat to the safety of others. You can’t knowingly spread falsehoods about someone that will cause injury to their reputation.

Schumer and Deutch’s child pornography example is just as peculiar as it is outrageous. The Supreme Court has ruled on this issue before in relation to the First Amendment (New York v. Ferber). But minors are, by definition, incompetent, which is why there are laws on the books to protect them against very sick people.

The examples citied by these two Democrats aren’t really valid when it comes to political speech. In addition to guaranteeing freedom of religion and freedom of the press, one of the reasons the First Amendment exists is to protect Americans’ rights to criticize the federal government without fear of reprisal. That includes opposing politicians or candidates with whom they disagree.

Individuals, regardless of their personal income levels, have the right to come together and form a public interest organization, through which they can run issue-based ads, or a political action committee, which allows them to publically support or oppose candidates. What these organizations do is fundamentally consistent with the First Amendment.

Schumer and Deutch’s “equality of speech” line is a phony narrative. This has nothing to do with “equality,” and even if it did, it could only exist by limiting the free speech rights of others. And, yes, even though Democrats won’t admit it, money is the means through which individuals support a candidate or promote a message, making campaign spending limits or donation limits a restriction on political speech.

Of course, Democrats aren’t going to acknowledge any of this. The constitutional amendment they’re pushing, now in both chambers of Congress, is nothing more than a political gimmick designed to distract voters in hopes that it’ll help save them from what could be a brutal mid-term election.


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