During an executive business meeting over the proposal to amend the First Amendmetn, Senator Durbin explained that Congress still could not regulate speech based on subject matter. Senator Ted Cruz interjected a question, and asked where in the Amendment is the phrase “content neutral.” (It’s not in there). Senator Durbin responded that Cruz, a former “Supreme Court clerk,” should know that the “content neutral” test is deeply rooted in the Court’s jurisprudence. Cruz shot right back, saying something to the effect of, “But this changes the Constitution.” Durbin said nothing in this Amendment would change the Court’s First Amendment jurisprudence about content neutrality. That can’t be correct.
If this Amendment is passed (which thankfully it won’t), it would trump the First Amendment. Later-in-time Amendments prevail over earlier parts of the Constitution. Sometimes this is explicit. The 21st Amendment repealed the 18th Amendment. Sometimes it is implied. The 14th Amendment modified the 11th Amendment, with respect to waivers of state sovereign immunity.
Following the debate over whether RFRA expanded the scope of Pre-Smith “Free Exercise” jurisprudence, I think this is a really important point that thankfully Senator Cruz raised. At the minimum, any responsible Amendment should, in the least, reference this “content neutral” jurisprudence, in much the same way that the text of RFRA referenced some of the Pre-Smith jurisprudence. But the amendment, as proposed, does no such thing. This is why original public meaning is so, so much more important than the intents of any individual senators.
Here are some of my other tweets from during the hearing.
From Senator Cruz:
This proposal is the single most radical and dangerous proposals in the 113th congress @tedcruz
— Josh Blackman (@JoshMBlackman) July 10, 2014
CRUZ: “It saddens me 46 Democratic Senators have signed their name to repeal free speech provisions of Bill of Rights” — Amanda Carpenter (@amandacarpenter) July 10, 2014
The breadth of this proposal is astonishing. It should lead the evening news on every station
— Josh Blackman (@JoshMBlackman) July 10, 2014
Notice @tedcruz uses no notes — Josh Blackman (@JoshMBlackman) July 10, 2014
CRUZ: Democrats “restricted debate on this topic. It’s fitting they are limiting debate. There is a big red clock ticking”
— Amanda Carpenter (@amandacarpenter) July 10, 2014
Democratic members of this committee do not want to debate. They want to limit debate to limit free speech rights — Josh Blackman (@JoshMBlackman) July 10, 2014
Ask 3 questions. 1. Should Congress be able to ban books?
— Josh Blackman (@JoshMBlackman) July 10, 2014
2. Should Congress be able to ban movies? 3. Should Congress be able to prohibit NAACP to speak about politics — Josh Blackman (@JoshMBlackman) July 10, 2014
If you are going to vote for this proposal, you should be prepared to answer questions to ban books, movies, and NAACP
— Josh Blackman (@JoshMBlackman) July 10, 2014
No dispute that this amendment would allow all 3. Gives COngress ability to regulate corporations. — Josh Blackman (@JoshMBlackman) July 10, 2014
“Prohibit such entities from spending money to influence election.” What does that mean?
— Josh Blackman (@JoshMBlackman) July 10, 2014
Obama Administration told Supreme Court that it could ban books. @tedcruz — Josh Blackman (@JoshMBlackman) July 10, 2014
This all started because a movie maker dared make a movie critical of @HillaryClinton #CitizensUnited
— Josh Blackman (@JoshMBlackman) July 10, 2014
The word is “prohibit,” not “reasonably” regulate. — Josh Blackman (@JoshMBlackman) July 10, 2014
Surreal that Senate Republicans are citing Floyd Abrams and @ACLU and Democrats are amending the Bill of Rights http://t.co/5wXyZ1Huib
— Josh Blackman (@JoshMBlackman) July 10, 2014
CRUZ: “I think Michael Moore’s movies are naked propaganda and he has a right to produce them, reasonable or not.” — Amanda Carpenter (@amandacarpenter) July 10, 2014
”
Cruz reading his amendment to amend the amendment to the First Amendment. It’s the First Amendment.
— Josh Blackman (@JoshMBlackman) July 10, 2014
Where are words “content neutral” in the proposed amendment? — Josh Blackman (@JoshMBlackman) July 10, 2014
Durbin: The Amendment would be passed against the backdrop of the Court’s 1st am. Jurisprudence. @tedcruz This changes the Constitution
— Josh Blackman (@JoshMBlackman) July 10, 2014
And a few other good lines from Senators Hatch, Cornyn, and Lee:
#Hatch – Freedom is not the problem, it is the solution. — Josh Blackman (@JoshMBlackman) July 10, 2014
Founding fathers made sure hair brained ideas like this never become law. #ArtV @JohnCornyn
— Josh Blackman (@JoshMBlackman) July 10, 2014
Lee: Dem bill is about giving power to sitting Members of Congress and taking it away from the American people #1A — Brian Phillips (@SenLeeComs) July 10, 2014
Lee: Dem bill would cripple freedom of speech and irrevocably damage our most precious possession as Americans: our freedom. #1A
— Brian Phillips (@SenLeeComs) July 10, 2014
How would Congress distinguish between raising money to influence elections, and freedom of press. @SenMikeLee — Josh Blackman (@JoshMBlackman) July 10, 2014
If owner of newspaper promoted candidate of choice, that not subject to restriction. But what if same owner published pamphlet. Protected?
— Josh Blackman (@JoshMBlackman) July 10, 2014
What if someone who did not own newspaper company, but used money to contract publishing equipment? Any less protection? — Josh Blackman (@JoshMBlackman) July 10, 2014
What if 10 million Americans formed association donate $100 to create fund to pool resources to promote candidate of choosing.
— Josh Blackman (@JoshMBlackman) July 10, 2014
Significant risk of line-drawing problem. @SenMikeLee — Josh Blackman (@JoshMBlackman) July 10, 2014