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Grassley: “Vicious attack underway on the right to freedom of speech”

Grassley Floor Statement – Attacks on the First Amendment Freedom of Speech –

Mr. President, I rise to discuss a very disturbing trend that is occurring in this country.  A vicious attack is underway on the right to freedom of speech that is protected by the First Amendment.  It needs to be highlighted and stopped.

Free speech is one of the most important rights that Americans enjoy.  Speech on public issues is the way that a democracy discusses and debates the important questions of the day.

Many great political movements in this country’s history depended on this right.  Even when Martin Luther King was jailed and his supporters subjected to violence, free speech enabled him to change the views and practices of an entire nation.

But today, too many government officials seek to shut up people who disagree with them, rather than debate them.  There have been a series of recent incidents.

Consider the Senate Judiciary Committee.  Just in the past month, the Committee has held two hearings that prove my point.  A hearing was held on a bill that would criminalize supposedly deceptive statements in advance of elections.

It would allow government to criminalize political speech based on its content.  It would risk government selectively choosing to prosecute its political opponents.  It would allow political candidates to make criminal accusations against their opponents.  It would chill candidates from speaking.

A few days after our hearing, the Supreme Court’s ruling in the Alvarez case confirmed all the free speech problems with the bill.  But even after that decision, the Justice Department, to my disappointment, issued a letter in support of the bill.  That letter made no mention of any First Amendment considerations.  I have heard no indication that the Committee will not mark up this bill, which represents a grave threat to freedom of speech.

This week, the Judiciary Committee’s Subcommittee on the Constitution held a hearing on legislative responses to the Citizens United case.  In that decision, the Supreme Court ruled that the First Amendment’s free speech guarantee protects the rights of corporations and unions to make independent expenditures in support of candidates.  The ruling has no effect on campaign contributions.  There are proposals in this body to amend the Bill of Rights, the First Amendment, for the first time, to allow the government to limit how much candidates could spend on speech, and therefore, the amount of speech that the government will permit.

And there are proposed constitutional amendments to prevent corporations and unions from spending in elections.   That is serious business.

It is worth remembering what rule the Obama Administration asked the Supreme Court to adopt in Citizens United.  The Justice Department argued that the government should be able to ban books that contained even one sentence that expressly advocated the election or defeat of a candidate if those books were published or distributed by a corporation or union.

This Administration argued in favor of banning books, Mr. President.  In light of the practices of totalitarian regimes of the twentieth century, the Obama Administration’s position on free speech was astonishing.

The Supreme Court quite rightly rejected that argument.

And it reminded the news media, which is organized in corporate form, for the most part, that the exemption from campaign finance laws is by statute, and one which Congress could remove at any time.  If that were to happen, and the Constitution were read to allow restrictions on corporate independent expenditures, the guarantee of freedom of the press would be as threatened as free speech.

Then there is the situation with the restaurant chain of Chick-fil-A.  The owner of that chain is a Christian who has spoken in favor of the values of traditional marriage.
The chain has not discriminated against anyone so far as has been reported.  The restaurant seeks to expand in Boston and Chicago, where presumably it would create new jobs, and it must meet permit requirements.

However, Mayor Menino of Boston wrote a letter to the company president.  He said that because of the owner’s “prejudiced statements,” there would be no place in Boston for the discrimination the company represented.  The mayor notified the property owner where the restaurant wishes to open of his views.

In Chicago, an alderman seeks to deny Chick-fil-A from opening in his ward for the same reason.  It is reported that President Obama’s former chief of staff, Chicago Mayor Rahm Emanuel, is sympathetic to the alderman.

Mr. President, this is a gross violation of the First Amendment’s free speech.  Government cannot deny a benefit to someone because it disagrees with the applicant’s views.  This is a fundamental principle of our constitutional democracy.

Voicing support for traditional marriage is not discrimination.  That speech is not hate speech.  Even if it were, the First Amendment protects speech that is unpopular with the government.  There is no constitutional speech code that allows banning of hate speech, any more than government can ban speech in books.

Finally, Mr. President, the Alvarez decision a few weeks ago affects another First Amendment issue pending before this body right now.   In the Alvarez case, the Supreme Court struck down the Stolen Valor Act, which criminalized lies concerning winning military medals.  It did so on free speech grounds.

I know that many of my colleagues desire to pass a new law that will accomplish that goal.

Two bills on this subject are now pending in the Senate.  Senator Brown of Massachusetts introduced the first bill and then Senator Webb did so after the Alvarez decision.  There have been efforts to pass both bills by voice vote.

When the Republicans were asked to move the Webb bill, we were told that all Democrats supported the bill.  This is a problem, Mr. President.  The Webb bill is clearly unconstitutional per the Alvarez decision.  It criminalizes some lies about medals that the Supreme Court says Congress cannot criminalize.

For instance, it would prohibit lies in campaigns and in employment even when those lies would not produce the tangible, material benefit that is necessary to punish them.   Yet, no Democrat objected to passing the bill without debate.  Of course, Republicans could not agree to such a request.

Since he did not have the benefit of the Supreme Court decision when he wrote it, Senator Brown’s bill is also unconstitutional.  The difference between his bill and Senator Webb’s, however, is that Senator Brown now has a substitute amendment that would address the problem in a fully constitutional way.  But although Democrats want to pass without debate a clearly unconstitutional bill, they object to the clearly constitutional Brown bill.

Mr. President, these games should stop.  I am sure that all the members of this body should be willing to support a single constitutional bill that would reenact the prohibition on lying about winning military medals.

In short, this country is facing a disturbing increase in government actions that violate the freedom of speech.  This is a vital right of our democracy.

Anyone can stand up for speech with which they agree.  The test for government officials and free speech is whether they will allow speech with which they disagree.  They may criticize speech, debate it, and seek to change minds.

But shutting people up, denying them benefits, passing bills that would put people in jail for exercising their free speech rights — these are never allowable under our Constitution.  It is time that some elected officials paid greater heed to their oaths to support the Constitution.

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