By Kevin D. Williamson
Friday, October 21, 2016
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.
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.
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. 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.
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