I previously blogged about Erwin Chemerinsky’s broadside against Sen. Ted Cruz for lying about the attempt to amend the First Amendment. Cruz offers this reply in The Hill, in an essay titled “Insults should not dominate debate over First Amendment” (though the permalink title of the piece is “I did not lie.”):
Erwin Chemerinsky is a passionate liberal and a distinguished scholar and dean. We have been opposing counsel before the Supreme Court, and I consider him a friend.
Sadly, last week he wrote a column in the Hill that called me a liar and attacked my effort to defend the First Amendment from Democrats who are seeking to regulate political speech.
It is unfortunate that public debate has descended to the point that such personal insults are commonplace.
It is particularly unfortunate because Dean Chemerinsky’s attack is predicated on an objective mistake, a simple error that routine fact-chcking should have caught.
For this, Dean Chemerinsky says I am a liar.
But, the ACLU has made the very same point. It says the amendment would “severely limit the First Amendment and lead directly to Government censorship of political speech,” including allowing Congress to ban books, like Hillary Clinton’s new book “Hard Choices.”
Floyd Abrams, perhaps the leading First Amendment litigator in the country (and an outspoken Democrat), has likewise observed the amendment “would limit speech that is at the heart of our First Amendment.”
The ACLU was not lying, Floyd Abrams was not lying, and neither was I.
And, in what should be seen as an embarrassment to the eminent scholar, Cruz notes that Chemerinsky quoted the *wrong* Amendment:
To advance his claim that I lied about the Udall amendment, Dean Chemerinsky quotes the text of the amendment as giving Congress and the states the authority to “regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.”
He makes one simple mistake. That language is not in the Udall amendment.
Instead, the language he quotes is from a substitute amendment filed by Sen. Dick Durbin (D-Ill.) in response to the overwhelming criticism of the Udall amendment.
Durbin’s replacement is somewhat better. It eliminated Udall’s broad language giving Congress the power to regulate “in-kind equivalents” and it added the qualifier “reasonable.”
The closing is brutal:
To recap, Sen. Udall introduces an amendment giving Congress total authority over political speech, with no limitations; I point that out publicly; in response, Durbin changes the language of the amendment to put in some limitations (“reasonableness”); and then Dean Chemerinsky quotes the new Durbin language to say that I lied when I said the prior Udall language had no limitations.
I assume this was an honest mistake. Perhaps a research assistant put the Durbin language in front of the dean and said “see, there are limitations, so Cruz is lying.”
But, if a student made the same mistake in Dean Chemerinsky’s constitutional law class—quoting the wrong language of the wrong amendment to make a false claim about a different amendment—that student wouldn’t get a very good grade.
I suspect Dean Chemerinsky’s research assistant may be getting a phone call.