When did the First Amendment move from being one of the main foundations of American liberty to being just another policy to be balanced off against so many others in government decision-making?
When I was in law school from 1971 to 1974, the First Amendment was king, and Mr. Justice Black (you could call justices "Mr. Justice" back then because there were no Ms. Justices) was famous, and beloved, for carrying around a copy of the Constitution in his pocket and taking it out to read "Congress shall make no law" whenever a First Amendment case came up.
Maybe it started with all the money Maurice Stans raised to Reelect the President in 1972 and then with Watergate. It continued in the 1980s when the Federal Communications Commission abolished the fairness rule for TV and radio (and President Reagan vetoed Congress’s attempt to re-impose it) – and Talk Radio started. For many on the left, it had been easy to be First Amendment absolutists when their opponents could not get access to the major media. Talk Radio changed that.
As the Supreme Court’s view of the First Amendment moved first to Buckley v. Valeo and then to McConnell v. FEC, Washington politicians moved even more. Now the First Amendment is just something to be weighed in the scale. No special weight, no special value, just another policy. In fact, to some Washington politicians, it almost seems as if the First Amendment is disfavored instead of favored.
Which brings me to John McCain’s comment on the Don Imus show on April 29, 2006:
"He [Michael Graham] also mentioned my abridgment of First Amendment rights, i.e. talking about campaign finance reform. My response to the criticism is I work in Washington, and I know that money corrupts, and I and a lot of other people were trying to stop that corruption. Obviously, from what we have been seeing lately, we didn’t complete the job, but I would rather have a clean government than one where quote First Amendment rights are being respected, that has become corrupt. If I had my choice, I’d rather have the clean government."
The problem that Senator McCain does not address is this (actually, there are lots of them, but let me just mention one for now): Without the First Amendment, how are you ever going to be able to know that government is clean?
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