I believe there ought to be limits because the First Amendment is not absolute. No amendment is absolute. You can’t scream ‘fire’ falsely in a crowded theater. We have libel laws. We have anti-pornography laws. All of those are limits on the First Amendment. Well, what could be more important than the wellspring of our democracy? And certain limits on First Amendment rights that if left unfettered, destroy the equality — any semblance of equality in our democracy — of course would be allowed by the Constitution. And the new theorists on the Supreme Court who don’t believe that, I am not sure where their motivation comes from, but they are just so wrong. They are just so wrong.
Well, let's look at that, why don't we.
Schumer is correct when he notes you cannot falsely shout fire in a crowded theater and claim First Amendment protection. However, that is not about speech so much as it is about protecting individuals from immediate physical danger -- speech which cannot be said to have any societal value. Similarly, laws against libel and slander are about allowing individuals a remedy against false statements that damage them -- again, speech that cannot be seen as having any value. But other than some time place and manner restrictions, anti-pornography laws are generally not constitutionally valid except insofar as they restrict obscenity -- which the courts have defined as being without redeeming social value.
But Schumer doesn't want to limit speech that the courts have recognized as being without value. What Schumer wants to do is limit speech that the courts have held has the most value in our society -- indeed, the sort of speech that the First Amendment is most designed to protect -- speech of a political nature designed to advance political participation and points of view.
But let's take Schumer's claim that unfettered political speech can destroy equality because some have the financial wherewithal to participate more and more more loudly. The First Amendment does not mandate speech equality. More to the point, even if one were to concede that the ability of some to use money to make their voices heard more often and more forcefully warps the system and should be banned legislated against, that still does not solve the problem.
For example, current and former officeholders have the ability to make their views known out of proportion to their status as single individuals in society -- and that undermines Schumer's cherished notion that democracy is damaged by speech inequality. The same is true of celebrities -- is my voice truly equal to Angelina Jolie -- and if not, do we need to remedy that inequality by limiting her freedom to speak? And let's not get into folks lie Oprah -- doesn't there need to be a law silencing her on all political matters altogether, lest she do damage to the political equality of all Americans with a single sentence?
Of course, that isn't what the legislation that Schumer is advocating for, the DISCLOSE Act -- is all about. As has been stated many times, it is about coercing the silence of the rich and of business -- voices that quite often are advocates on the side of conservatives and Republicans. The law as it no exists carves out exceptions for liberal constituency groups and special interests that the Democrats favor -- and which spend their money to support Democrats.
Of course, this is the very sort of thing that the First Amendment was designed to prevent. Congress -- indeed, the government generally -- has no legitimate interest in silencing political speech. Especially when that effort is designed (as it always is) to tilt the playing field in favor of those who currently hold the reins of government and against those who dare to speak out in opposition. As such, this legislation is unconstitutional -- and unAmerican.