Free Speech Is Whatever These Senators Say It Is


The Senate Judiciary Committee endorsed a proposed constitutional amendment to undo the Supreme Court’s wildly unpopular 5 to 4 Citizens United ruling on Thursday. Supporters of the Supreme Court decision blasted the measure as a virtual repeal of the First Amendment’s free speech protections, but several of those who made clear that they object to any limits on political speech have themselves been long-time supporters of a constitutional amendment to do just that.

The proposed amendment, authored by Sen. Tom Udall (D-NM), would restore to Congress and state legislatures the “power to regulate the raising and spending of money and in-kind equivalents,” through limits on the amounts of “on the amount of contributions to candidates” and “the amount of funds that may be spent by, in support of, or in opposition to such candidates.” It has 45 co-sponsors (all Democrats), well-short of the 67 vote super-majority required for a constitutional amendment.

Among those speaking out against the Udall proposal — at Thursday’s hearing and before — were veteran Senators Chuck Grassley (R-IA), John Cornyn (R-TX), and Orrin Hatch (R-UT). Each suggested that the amendment would limit free speech of those whose political views are not those of the majority. And each is a current supporter of a constitutional amendment to ban flag desecration.

Grassley, in a statement, warned that “freedom of speech is threatened as it has not been in many decades, as “Too many people are impatient and will not listen and debate and persuade. They want to punish, intimidate, and silence those with whom they disagree.” Hatch and Cornyn had similar arguments, warning the amendment would “gut” the first amendment. Cornyn lamented in a tweet, “Words I never expected to write: the Senate Judiciary Committee is voting now on amending the Bill of Rights.”


But Hatch has long been the chief sponsor of a proposed constitutional amendment which would give Congress the power to restrict free speech. His S. J. Res. 17 would amend the constitution to give Congress the power to “prohibit the physical desecration of the flag of the United States.” Among his 23 current consponsors are Senators Cornyn and Grassley. In 2006 Hatch said that consideration of a flag amendment was “the most important thing the Senate could be doing.”

In 2004 op/ed, Cornyn wrote that the “historic power to protect the flag was eviscerated in 1989, however, when the U.S. Supreme Court issued the first of two decisions, both decided by a bare 5–4 majority, declaring that flag desecration constitutes speech protected by the First Amendment.” He explained that “Legal scholars agree that the Flag Protection Amendment is the only way to restore the law as it existed for most of our nation’s history. Constitutional amendments are the only way for the American people to reverse judicial constitutional decisions they reject.”

The offices of Sens. Cornyn, Grassley, and Hatch did not immediately respond to a ThinkProgress inquiry as to whether they see any contradiction between these two positions.

One of the most ardent supporters of preserving the Citizens United ruling, Senate Minority Leader Mitch McConnell (R-KY), has also opposed the flag burning amendment. “Why tamper with the First Amendment to solve a problem that thankfully is not widespread?” he has asked.

But the problem of secretive outside groups dominating American elections is indeed widespread. While these Senators see flag burning as an important enough issue to overturn the Supreme Court’s determination on free speech, they believe the right of billionaires to overwhelm the political process and corporations to dominate our democracy is sacrosanct.