POV: Man’s Rights; The Nature of Government
by Ayn Rand | 1963
The Immigration Debate
by The Editors | April 17, 2017
Charlie Hebdo Two Years Later: Will America Continue to Protect Free Speech?
by Steve Simpson | January 07, 2017
Free Speech Is a Right, Not a Political Weapon
by Steve Simpson | December 06, 2016
One Small Step for Dictatorship: The Significance of Donald Trump’s Election
by Onkar Ghate | November 17, 2016
Overturning Citizens United Would Be a Disaster for Free Speech
by Steve Simpson | September 06, 2016
New Book: Defending Free Speech
by The Editors | July 26, 2016
Defending Free Speech
by Steve Simpson | July 02, 2016
How U.S. Attorneys General Are Like Chinese Censors
by Steve Simpson | July 01, 2016
Standing up for Free Speech
by The Editors | June 17, 2016
Is the First Amendment Enough?
by Steve Simpson | March 22, 2016
Free Speech Under Siege
by Steve Simpson | March 25, 2015
Freedom of Speech or Tyranny of Silence?
by The Editors | January 21, 2015
Free Speech and the Battle for Western Culture
by Yaron Brook | January 21, 2015
Freedom of Speech: We Will Not Cower
by Onkar Ghate | January 07, 2015
Gutting the First Amendment
by Steve Simpson | July 17, 2014
The Myth about Ayn Rand and Social Security
by Onkar Ghate | June 19, 2014
The Campaign Finance Monster That Refuses to Die
by Steve Simpson | June 11, 2014
The “End the Debt Draft” Campaign
by Don Watkins | March 18, 2014
End the debt draft
by Don Watkins | March 13, 2014
Abortion Rights Are Pro-life
by Leonard Peikoff | January 23, 2013
A Liberal Ayn Rand?
by Onkar Ghate | November 02, 2012
Ryan, Rand and Rights
by Don Watkins | August 17, 2012
Repairing Lochner’s Reputation: An Adventure In Historical Revisionism
by Tom Bowden | Fall 2011
Why Should Business Leaders Care about Intellectual Property? — Ayn Rand’s Radical Argument
by Adam Mossoff | November 30, 2010
Elena Kagan: Could She Defend the Constitution’s Purpose?
by Tom Bowden | July 20, 2010
Capitalism: Who Needs It — Ayn Rand and the American System
by Yaron Brook | June 09, 2010
Were the Founding Fathers Media Socialists?
by Don Watkins | March 01, 2010
Justice Holmes and the Empty Constitution
by Tom Bowden | Summer 2009
Nationalization Is Theft
by Tom Bowden | November 07, 2008
Supreme Disappointments
by Tom Bowden | November 03, 2008
Deep-Six the Law of the Sea
by Tom Bowden | November 20, 2007
After Ten Years, States Still Resist Assisted Suicide
by Tom Bowden | November 02, 2007
No Right to “Free” Health Care
by Onkar Ghate | June 11, 2007
The Rise and Fall of Property Rights in America
by Adam Mossoff | May 16, 2007
Free Speech and the Danish Cartoons, a Panel Discussion
by Yaron Brook | April 11, 2006
The Fear to Speak Comes to America’s Shores
by Onkar Ghate | April 04, 2006
The Twilight of Freedom of Speech
by Onkar Ghate | February 21, 2006
The Cartoon Jihad: Free Speech in the Balance
by Christian Beenfeldt | February 10, 2006
The Faith-Based Attack on Rational Government
by Tom Bowden | June 27, 2005
Supreme Court Should Uphold Rights, Not Majority Sentiment in Ten Commandments Cases
by Tom Bowden | February 23, 2005
Campaign Finance Reform Attacks Victims of Corruption
by Onkar Ghate | December 26, 2003
Thought Control
by Onkar Ghate | April 22, 2003
A Supreme Court Overview
by Tom Bowden | January 01, 2000
Blacklists Are Not Censorship
by Tom Bowden | March 23, 1999
Health Care Is Not a Right
by Leonard Peikoff | December 11, 1993
The Age of Mediocrity
by Ayn Rand | April 26, 1981
Censorship: Local and Express
by Ayn Rand | October 21, 1973
A Nation’s Unity
by Ayn Rand | October 22, 1972
Of Living Death
by Ayn Rand | December 08, 1968
The Wreckage of the Consensus
by Ayn Rand | April 16, 1967
by Ayn Rand | September 1963


Government And Business in Voice for Reason
Government & BusinessIndividual Rights

Gutting the First Amendment

by Steve Simpson | July 17, 2014 |

Supporters of campaign finance laws have been apoplectic since the Supreme Court struck down a ban on corporate political ads in Citizens United. Having lost another big case this year in McCutcheon v. FEC, they now want to write their views directly into the Constitution.

Last week, the Senate Judiciary Committee approved a resolution calling for a constitutional amendment that would let government limit contributions to candidates and spending by and on behalf of them. The House will take up a similar proposal soon. To see where this amendment would lead if enacted, consider that the law in Citizens United prevented a group from distributing a film that criticized Hillary Clinton during her last presidential bid. During arguments in the case, the government’s lawyer admitted that the law could apply to books as well.

At the core of this effort is the very dangerous view that freedom of speech isn’t an inalienable individual right — a right to say what you want regardless of what others think — but a privilege that we exercise at the sufferance of “the public.”

This is the prevailing view among many intellectuals and politicians today. Justice Breyer expressed it in dissent in McCutcheon joined by his three colleagues on the left. In his view, the First Amendment protects the “public’s interest” in having its “collective speech matter.” Sen. Patrick Leahy, D-VT, echoed this view when he complained in advance of a hearing on the proposed amendment that the Court is ignoring “the voices of all Americans” in order to “amplify the voices of billionaires and corporations.”

This is a fashionable view — we need campaign finance laws to prevent rich and powerful “special interests” from drowning out the “the public.” But being fashionable doesn’t make it true.

After all, who is this “public” that allegedly isn’t being heard? Does it include newspapers like the New York Times and the Wall Street Journal? Broadcasters like MSNBC and Fox News? Millions of bloggers and Facebook and Twitter users? Donors to hundreds of political and advocacy groups? Jaw-boning politicians?

The fact is, “the public” doesn’t exist. Only individuals do. Terms like “the public” are never used to refer, literally, to every last person who lives in society. Instead, they are always used to justify one group of people using the force of law against others.

Consider how easy it is to define “the public” to mean groups whose ideas you favor. To Harry Reid and his allies, “the public” doesn’t include the Koch brothers or Tea Party groups targeted by the IRS, but it does include unions, environmental groups and others who support unlimited government power.

Of course, the right sometimes does the same thing. But that’s part of the point. The “public interest” can be used to justify any restriction on speech. No one ever admits that they want to silence others, so they invoke this magic concept to do that dirty work for them.

And make no mistake: silencing people is the point of campaign finance laws. Yale law professor Owen Fiss defended those laws in his 1996 book, The Irony of Free Speech, by saying that government may “have to silence the voices of some in order to hear the voices of others. Sometimes there is simply no other way.”

Silencing the loudest voices is the only way to make sure “the public” gets heard over individuals. And it’s always where campaign finance laws lead, because people easily find ways around them. Limit contributions to candidates, and people will spend money on their own ads. Prevent people from saying “vote for” or “vote against” and they will criticize candidates in other ways. That’s why, in 2002, Congress passed McCain-Feingold, which banned groups from even mentioning candidates near an election. No restrictions on spending for speech can be successful unless all spending is restricted.

The solution to this creeping censorship is to defend free speech as a right, not a privilege. That right does not protect our “voices” or guarantee that we’ll have “influence.” It protects our freedom to speak. Whether we are loud enough, persistent enough, or articulate enough is up to us.

Amending the Constitution is a long shot, and today’s effort will almost definitely fail. But tomorrow’s may not. If you value free speech, now would be a good time to start making yourself heard.

About The Author

Steve Simpson

Former Director of Legal Studies (2013-2018), Ayn Rand Institute