Law & the Courts

The Book-Burners

Clinton speaks at a rally in Pueblo, Colo., October 12, 2016. (Reuters photo: Lucy Nicholson)
Mrs. Clinton affirms her commitment to political censorship.

During the final presidential debate, Hillary Rodham Clinton declared herself a totalitarian. She did not use that word, of course, but that was the substance of her remarks.

She began by arguing that the Supreme Court, and lesser federal courts, should be political partisans who take sides in disputes rather than adjudicate them according to the law. Many politicians — perhaps even most — believe that, or act in a way that suggests they do, but most of them feel at least the need to shamefacedly insist that judges are there to impartially apply the law. Not Mrs. Clinton. The Supreme Court that exists in her mind is the worst version of the highest judicial body, which is to say the American answer to Iran’s Guardian Council. The justices already wander into American-ayatollah territory too often, and it is only shame that constrains them. It is impossible to overstate the damage this is doing to our constitutional order, and to the legitimacy of the federal government itself.

What is worse — if something can in fact be worse — is that Mrs. Clinton seeks to unmoor the Supreme Court from the Constitution in order to pursue her own repressive and self-interested political program, namely the censorship of publications, organizations, and institutions that are critical of her.

Lost in all of the deeply stupid rhetoric (“Money isn’t speech!”) surrounding the Citizens United case is the fundamental issue that was at question, to wit whether the federal government can censor films of which it disapproves. The film in question was called Hillary: The Movie, and it was very critical of Mrs. Clinton while she was seeking the Democratic nomination in 2008. The government attempted to forbid the distribution of the film on the grounds that it was critical of a political figure, which was at the time impermissible, under what is cynically known as “campaign finance” law, unless done in strict compliance with narrow and restrictive federal regulations, and then only at certain times. The Supreme Court rightly threw the law behind that out as rankly unconstitutional censorship of political speech.

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What those beef-witted partisans who abuse the word “liberal” fail to appreciate is that the principle behind the so-called campaign-finance laws they support is an open-ended power of federal censorship of all political speech, journalism, literature, films, television, radio, and other communication. Some of the more sinister forces on the left understand that perfectly well, and the glee with which Elizabeth Warren and Bernie Sanders present the proposal of silencing their political critics is both astounding and horrifying.

But, assuming that there are at least a few actual liberals left in the Democratic party, a few facts bear consideration.

The principle behind the 2002 Campaign Finance Reform Act, commonly known as McCain-Feingold after its batty sponsors, is that money expended for the purpose of influencing the outcome of an election is in effect a campaign contribution and thus is subject to regulation by the Federal Election Commission. The problem with this line of argument is that practically all political communication involves the expenditure of money, as does most communication of any greater reach than shouting from a soapbox in the public square. There was much whispering about “corporations” and “corporate influence,” and, indeed, Citizens United is a corporation — a nonprofit one. There are a great many corporations involved in political communication, and some that exist mainly for that purpose. The Corporation for Public Broadcasting facilitates political advocacy; the New York Times Company engages in direct political advocacy indistinguishable from that of an ordinary political campaign; the National Association of Realtors and the American Medical Association are corporations that expend considerable resources in the attempt to influence certain public policies.

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In response to Citizens United, the Democratic party has attempted something truly remarkable and flatly insane: the repeal of the First Amendment. Every Democrat in the Senate, under Harry Reid’s bilious leadership, voted to repeal the First Amendment. They assure us that whatever diminished protection remains for free speech will protect journalists and the like while allowing for the regulation of corporations, but this runs into the problem just described: American law makes no distinction between corporations whose literary output is journalism and those whose literary output is political advocacy subject to regulation. And, indeed, such a distinction would be impossible to make. The Washington Post produces first-rate journalism, but its op-ed page contains plain political advocacy of precisely the sort that the government sought to censor in the Citizens United case. And in terms of corporate expenditures, it costs a great deal more to put out the Washington Post’s Sunday edition than it does to make a low-budget advocacy film like Hillary: The Movie. A proper press set-up can cost more than $100 million; a copy of Apple’s Final Cut Pro X is only $300.

Even if there were a straightforward way to distinguish journalism from other kinds of communication, other problems remain. For one, doing that would amount to licensing journalists and their publications, which presents First Amendment problems of its own and is obviously undesirable for a hundred other reasons. Another problem is that the First Amendment is intended to protect many kinds of speech, not just journalism. In fact, the First Amendment is intended to protect political advocacy full stop.

Democrats are intent on empowering themselves to suppress advocacy that they find distasteful or disagreeable.

Democrats are intent on empowering themselves to suppress advocacy that they find distasteful or disagreeable. They might call these efforts a fraud case, as in the laughable persecution of Exxon and free-market think tanks critical of progressives’ preferred global-warming policies; they might call these efforts “campaign-finance reform,” as in their attempt to censor a film critical of Mrs. Clinton. They might, like CNN’s dotty Chris Cuomo, insist that there exists a category of so-called hate speech that exists outside of First Amendment protections, never mind that it is repugnant speech that constitutional safeguards are there to protect, anodyne speech needing no such security.

During the Citizens United arguments, Justice Samuel Alito asked Malcolm Stewart, the deputy solicitor general defending the government’s censorship, whether the law would empower Congress to ban books. Stewart affirmed that books too must be subject to “electioneering communication restrictions.” And thus do our so-called liberals become book-burners.  That may be of some interest to organizations far outside of the world of conservative activism — donor-supported feminist publishing houses, say, or grant-funded environmentalist documentarians. The leader of the United States Senate is a conservative from Kentucky, and the leader of the United States House of Representatives is a conservative from Wisconsin. The Left would do well to consider just whom it would be empowering to establish a censorship code.  Republicans cannot be trusted with that power. Neither can Democrats. Neither can Libertarians, Greens, Freemasons, Elks, Methodists, or other bad hombres — or even good hombres, absolute power corrupting absolutely and all that.  

A liberal society is one in which everybody has free-speech rights. A society in which some people have free-speech rights and some do not, depending on the self-interested whim of people with political power, is a totalitarian society realized to a greater or lesser degree. Heinrich Heine’s advice on the connection between the treatment of books and the treatment of human beings is always and forever relevant.

— Kevin D. Williamson is the roving correspondent for National Review.


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