by Harrison H. Schmitt, America’s Uncommon Sense, July 15, 2011
The Roberts’ Supreme Court has become an important if erratic supporter of the 1st Amendment’s protection of political speech. Future decisions should begin to reverse many previous, adverse election law restrictions on political speech upheld in the past, such as banning independent political advertising before federal elections.
Particularly important have been the Court’s recent decisions to lift restrictions on corporation and union political contributions (Citizens United v. FEC) and to overturn Arizona’s use of taxpayer funds to interfere with political speech by contributors to candidates (Freedom Club PAC v. Bennett). On the other hand, the Court’s reversal of a California law banning the sale of violent video games to minors (Brown v. California) missed the most important point in that case: constitutionally, the suit never should have been allowed in federal court.
Statements by the Founders show that protection of “political” speech constituted their sole intent relative to inclusion of the words “Congress shall make no law abridging the freedom of speech” in the 1st Amendment. The restrictions on political speech by the British Crown remained fresh in the Founders minds; but they were not concerned with the question of what might be said or written outside the realm of politics as contested in Brown v. California. Further, even if the Founders’ intent were to regulate all speech, and clearly it was not, the 1st Amendment specifically states that “Congress shall make no law”, not that the States “shall make no law.”
The Founders, however, did not neglect the protection of nonpolitical forms of speech. Along with many other natural rights, including “life, liberty, and the pursuit of happiness”, the 9th Amendment protects speech [Essay 36]. That Amendment states:
“The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”
The regulation of the natural right of speech, therefore, is left to the discretion of the people who may, through the 10th Amendment powers “reserved to the States”, ask State government to restrict certain forms of non-political speech that may impede the exercise of other natural rights.
For example, crying “fire” in a crowded theater endangers others’ natural right to life. In the case of video games, the elected representatives of the people of California have the constitutional discretion to regulate their content in so far as they clearly usurp parents’ natural right to guide the education of their children. The Roberts’ Court greatly erred in overturning California’s video game restrictions, as the Founders specifically intended that the oversight of 9th Amendment natural rights remain with the people and the States. The Court must be challenged to reverse this precedent as soon as possible.
Harrison H. Schmitt is a former United States Senator from New Mexico as well as a geologist and Apollo Astronaut. He currently is an aerospace and private enterprise consultant and a member of the new Committee of Correspondence.