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Hypocrisy and the First Amendment

Former Supreme Court Justice John Paul Stevens
• April 29, 2014 1:17 pm

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Former Supreme Court Justice John Paul Stevens is scheduled to testify (and plug his new book) on Wednesday before the Senate Rules Committee. The topic is a favorite of Democrats: How "dark money" in politics is destroying America, and will only get worse after the Supreme Court’s recent ruling to strike down some limits on individual campaign contributions.

Stevens is expected to criticize anonymous political donations; he’s already described the Supreme Court’s ruling in McCutcheon v. FEC as "grossly incorrect." He’s also criticized the expansion of First Amendment rights in his latest book, Six Amendments: How and Why We Should Change the Constitution, which calls for stricter regulations on political donations. (In the book, Stevens also criticizes the widespread availability of "automatic weapons" in the United States, even though such weapons have been banned for decades. Oops.)

Democrats don’t like the fact that people are allowed to contribute to political causes anonymously, and thus avoid the public shaming that recently led to the ousting of Mozilla CEO Brendan Eich. Meanwhile, a shadowy network of left-wing donors is currently meeting at the Ritz Carlton in Chicago to discuss how to effectively use "dark money" to influence the political process.

It’s also ironic that Stevens actually authored the majority opinion in a 1995 Supreme Court decision that is often cited in defense of anonymous political speech as a guaranteed right under the First Amendment. In McIntyre v. Ohio Elections Commission, the court ruled that state laws restricting anonymous political speech (in this case, distributing unsigned leaflets) were unconstitutional, not least because they expose people to the aggressive public shaming that liberals love to engage in.

"Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent," Steven wrote on behalf of the 7-2 majority. "Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society."

Unfortunately, Stevens probably won’t echo these pro-First Amendment views at Wednesday’s hearing. But perhaps some enterprising Senator will ask him about it, or at the very least press Stevens on his disconcerting Shakespeare Trutherism.