• Kagan’s Exception to the First Amendment

      On my show this week, which re-airs tonight at 10pm EST, and again over the weekend, I cover the threats to freedom that are hard to notice.

      The Bill of Rights is a wonderful thing because it declares what government may NOT do. The First Amendment: “Congress shall make no law… abridging the freedom of speech.”

      But now that we are in an era of big government and political correctness, it makes me wonder: If today's congress wrote the Constitution, would it be thick, filled with exceptions to freedoms like free speech?

      Generally, lawyers write such things, so for my show, I went to Seton Hall University and interviewed some aspiring lawyers.

      Many were eager to limit the First Amendment. They said things like:

      “If you look at the gravity of the harm versus the intrinsic value of what is gained in blasphemy, the gravity of harm outweighs the intrinsic value.”

      “We need to regulate flag burning-- and any desecration of the flag in the interests of respecting those who have died to protect it.”

      Another student thought videos showing “animal cruelty” – including hunting – should be illegal, and filmmakers thrown in jail.

      Another argued that there should be an exception to corporate political speech, warning:

      “They will own the airwaves. They will own all the advertising venues, 'cause they can afford it.”

      The students are hardly alone. Obama’s Supreme Court nominee, Elana Kagan, argued before the Supreme Court that the court should uphold a law that allowed the Federal Elections Commission to regulate corporate speech before an election – even books . But she assured the justices:

      “Nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem, so I think there would be a good as-applied [legal] challenge with respect to that.”

      To which Scalia replied incredulously:

      “So [imagine] you’re a lawyer advising someone who is about to come out with a book and you say, ‘don’t worry, the FEC has never tried to send someone for prison for this. The statute covers it -- but don’t worry, the FEC has never done it.’ Would that comfort your client? I don’t think so.”

      Fortunately, the Supreme Court upheld freedom of speech that time. But it’s always in danger.

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