Fan.10 (First Amendment News) — Justice Stevens’ Proposal to Amend the 1st Amendment


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10 Responses

  1. Brett Bellmore says:

    The former Justice’s proposal would clearly open the door to censorship of political speech, as would the other proposed amendments, and I’m not terribly surprised. Hostility to freedom of political speech is rampant among self-appointed ‘campaign reformers’.

  2. Joe says:

    The scare quotes there are vague. The group in question involve a range of people and Roberts, Kennedy et. al. in the majority in the most recent case have agreed that certain “campaign reforms” (disclosure laws, disclaimer laws etc.) meet First Amendment scrutiny. Also, as Prof. Teachout on this blog and Breyer noted in dissent, campaign reform laws of certain types can further “freedom of political speech” (“freedom” does not equal some libertarian “no regulation” policy — “freedom” includes regulation in a republican democracy with ORDERED liberty — as the first comment thinks perfectly fine when voting is involved, another “political” freedom”).

    I am wary of a constitutional amendment and agree with Rick Hasen that an amendment is ill advised & the text I have seen there have been overbroad. This is different though than “campaign reform” in general.

    Note: It took me a few refreshes for a valid anti-spam word to come up. I don’t recall much spam on this page or many comments even so find the function a bit unnecessary.

  3. Brian says:

    Every time I hear of proposals to “fix” the First Amendment, I remember the fact the proposals would be only the second time in American history an amendment would restrict the liberty of the People, alcohol prohibition being the first, and I get nauseous because it means the Proposers, essentially, propose to save the American experiment in Self government by abandoning it.

  4. Brett Bellmore says:

    Joe, the texts of such amendments are ALWAYS “overbroad”. I’ve yet to see one that wasn’t, and this is part of why I say that campaign ‘reformers’ are mostly aspiring political censors, or the useful idiots for such. They keep claiming to have legitimate ends, but then always go for wildly excessive means.

    I still recall the guy arguing for government on CU confirming that he thought book banning was ok. That’s the sort of person pushing this.

  5. Brett Bellmore says:

    Brian: You may notice that the same people pushing campaign finance ‘reform’ are also big fans of the concepts behind ‘agnotology’, the science of how ignorance is generated. Essentially, they’ve come to the conclusion that the only way the truth can prevail, is if the untruth can be silenced. They HAVE given up on the notion that truth triumphs in a free conversation, rejected the presumptions that are required for the first amendment to make sense.

    So, you’ve nailed it: They don’t think self-government in a free society is possible. They think that you have to give up the free society part for the self-government part to work.

  6. Joe says:

    The “book banning” thing regarded a narrow thing and Kagan even admitted error there. Loads of laws taken to their logical conclusion will have some overbroad or absurd applications. Unless the 1A means “no regulations at all,” there is always going to be some opening for something there. And, Brett, as I noted, Rick Hasen et. al. oppose the amendment route. So, “campaign reformers” don’t overlap with them any more than “pro-life” means supporting an amendment to the Constitution to overturn Roe v. Wade. But, you repeatedly exaggerate, which hurts your case.

    As to “liberty,” people also that the Reconstruction Amendments would reduce the “liberty” of the people in various ways, including expanding federal power, which was a concern for some regarding the 13A (section 2 especially). The concern is sensible, but Brian, how the people having the power by their legislators to limit large amount of money to donors (good or bad that might be) is not an act of “self government” is unclear to me.

  7. Joe says:

    “overlap” in my last comment means “totally overlap”

    Also, “people also that” should be “people also thought that”

    A final comment == “liberty of the People” is so vanilla that it can mean anything. Thus, national civil rights laws repeatedly are denounced as hurting “liberty” … or, even local civil rights laws. The term is too broad really and the reference to “self-government” (again cf. the other side who sees such laws as promoting it) is telling.

  8. Brett Bellmore says:

    For those who are curious, a list of the amendments can be found here:

    What are Justice Stevens’ proposed amendments?

    #1 Purports to undo the rule against commandeering, but is written so that treaties would become the supreme law of the land in place of the Constitution, allowing the Senate and Lichtenstein to get together and ‘amend’ the Constitution.

    #2 Prohibits gerrymandering, but leaves a loophole for racially discriminatory gerrymanders. Some animals are more equal than others, remember.

    #3 Is the campaign finance political censorship amendment we’ve been discussing

    #4 Takes away sovereign immunity for anybody who doesn’t do what the federal government orders, (Works with #1, I guess.) but leaves it for violations of state law. So cops still get to break the law without consequence.

    #5 Amends the 8th amendment to ban the death penalty. Don’t think it would pass, but can’t find any loopholes built into this one.

    #6 Restricts 2nd amendment rights to people serving in the Militia. Most states would follow this up by enrolling everybody above the age of 14 in the Militia, if it passed, which it wouldn’t.

    About all I can say, given that not one of these amendments has a chance of ratification, is that Stevens must be a very, very frustrated man, and thank God that he is.

  9. As crazy as it sounds, it was interesting.