Maryland Democrats Against The First Amendment
Democratic members of Maryland’s congressional delegation are seeking to radically alter the first amendment to give Congress the power to censor political speech and criminalize issue advocacy.
Section 1. To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections, including through setting limits on– (1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.
Section 2. To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, each State shall have power to regulate the raising and spending of money and in-kind equivalents with respect to State elections, including through setting limits on–(1) the amount of contributions to candidates for nomination for election to, or for election to, State office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.
Section 3. Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.
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Section 4. Congress and the States shall have power to implement and enforce this article by appropriate legislation.
First, it could actually make matters worse. Those with enough money can afford to buy newspapers or journalistic websites, which are indisputably press outlets, and would be completely outside the scope of the laws permitted by this amendment. William Randolph Hearst’s newspaper empire, for instance, was at first a vigorously partisan supporter of Franklin Roosevelt (and then critic), and such partisan electioneering by the mass media would unquestionably be permitted under this amendment.
Second, it invites government inquiry into what constitutes “the press,” which is increasingly problematic in the age of citizen journalism and the Internet. Here, the government would have to determine if the Daily Kos or Red State qualify as “the press.” If yes, they can blog freely. If no, they could be censored or even go to jail. The potential for abuse is obvious.
Accordingly, the reference to freedom of the press could perversely limit that freedom. Legally, “the press” has been defined broadly. It encompasses not only the “large metropolitan publisher” but also the “lonely pamphleteer.” “Freedom of the press is a fundamental personal right,” the Supreme Court has written, “which is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.”
The reference to freedom of the press will force the government and courts to draw difficult lines between non-traditional media and the “large metropolitan publisher.” More often than not, the latter, simply because of the breadth of issues covered in their media, is going to appear less “political” than the pamphleteer handing out circulars urging greater gun control, reproductive freedom or a path to citizenship for undocumented immigrants. The courts interpreting the law permitted by this amendment are therefore more likely to move away from the notion of “lonely pamphleteer” as press.
Finally, fourth, the reference to the press clause expressly incorporates the speech, assembly and petition clauses into the Udall amendment by omission. In other words, the amendment makes clear—through lack of reference to the speech clause—that this amendment is meant to directly constrain the existing speech, assembly and petition rights, and potentially all other constitutional rights that could conceivably apply, with respect to both the state and federal governments. That is both unprecedented and exceedingly worrisome.
Additionally, we note that Section 3 appears to only apply to Congress, suggesting that states may be free to “abridge” the freedom of the press.