The five justices on the Supreme Court (John Roberts, Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito) who consistently hold unconstitutional laws that attempt to set limits on the size of permissible campaign contributions and expenditures have embraced a distorted—and dangerous—conception of the First Amendment. Perversely, their understanding of the First Amendment threatens to undermine the very democracy that the First Amendment was designed by the Framers of our Constitution to preserve.
The incoherent nature of their understanding of the First Amendment is clearly illustrated by the fact that, in his opinion in McCutcheon v. FEC, Chief Justice Roberts expressly invokes as authority for his position the Court’s prior decisions holding unconstitutional laws that ban flag burning, forbid offensive protests near funerals, and prohibited neo-Nazis from marching in Skokie, Illinois. The suggestion that those decisions—bulwarks of our First Amendment jurisprudence—are relevant precedents in cases like Citizens United andMcCutcheon ignores a fundamental distinction that lies at the very heart of the First Amendment.
In each of those the decisions Roberts cited, the Supreme Court invalidated a law that prohibited speech because of the message being communicated by the speaker. The government, in effect, was attempting to excise certain points of view from public debate. As the Court has often explained: “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Thus, when the government seeks to suppress speech because the message itself is thought to be dangerous, it may not do so unless, at the very least, the speech poses a clear and present danger of grave harm. It was this principle that justified the Court’s decisions in the cases cited by Chief Justice Roberts. Under that standard, the laws at issue in cases like Citizens United and McCutcheon would clearly be unconstitutional.
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