Tester and Murphy Propose Repealing the First Amendment

by Charles C. W. Cooke

Since the Citizens United case stripped the state of a vital tool of censorship, many on the Left have harbored the desire to, as Nancy Pelosi put it last year, “amend the First Amendment.” This afternoon, the Washington Free Beacon’s Lachlan Markey reported on the latest attempt to do exactly that:

Legal experts say a constitutional amendment proposed by Senate Democrats would eliminate all constitutional rights for nonprofit groups and many religious organizations.

Constitutional scholars also suggested the amendment could allow the National Security Agency—currently under fire for its controversial intelligence gathering techniques—to seize information on Americans at whim.

The amendment is an attempt to reverse the Supreme Court’s 2010 decision in Citizens United vs. FEC, which struck down restrictions on political speech by corporations, unions, and nonprofits.

Rather than simply reversing that decision, the amendment offered by Sens. Jon Tester (D., Mont.) and Chris Murphy (D., Conn.) would eliminate all constitutional rights not only for for-profit corporations but also for nonprofit groups and many churches.

Over at the Volokh Conspiracy, Eugene Volokh takes this proposal to pieces:

The proposed amendment would authorize Congress, states, and local governments to, for instance, (1) restrict what most newspapers publish, (2) restrict what most advocacy groups, such as the ACLU, the Sierra Club, and the NRA, say, (3) restrict what is said and done by most churches, and (4) seize the property of corporations without just compensation. (It might also allow restrictions on the speech of unions, depending on whether they are seen as “corporate entities.”)

Nearly all major newspapers and magazines are owned by corporations; the same is true of book publishers, movie studios, record labels, and broadcasters. Indeed, if you want such entities to be able to raise money for their operations through the stock market, you have to have them be organized as corporations. Likewise, most nonprofit organizations are organized as corporations — that, too, makes sense, since it makes sense to have the ACLU run as a corporate entity rather than as a sole proprietorship owned by one person, or a partnership owned by a few people. Churches are likewise often organized as corporations, sometimes with a special sort of corporate status.

Under the proposed amendment, all these groups — as well as ordinary businesses — would lose all their constitutional rights. Instead of “strict scrutiny” for content-based regulations of the press or of nonprofit advocacy groups, Congress and state and local governments would be free to impose any restrictions they “deem reasonable.”

So goodbye, First Amendment protection for the New York Times, CNN, the ACLU, the NRA, and the Catholic Church. Goodbye, any right to just compensation when a corporation’s property is taken — whether the corporation is a large business or a small mom-and-pop company. Goodbye, any rights to due process when a corporation’s property is seized. Goodbye, any protection for corporations (again, even small family-run businesses) from unreasonable searches and seizures, or excessive fines. That’s what Senators Tester and Murphy’s amendment calls for.

As I observed of Nancy Pelosi’s short-lived proposal last year, Tester and Murphy’s nasty little amendment would improve the First Amendment in roughly the same way as the iceberg improved the Titanic.

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