Missing the Whole Point

The Bill of Rights were originally restrictions on government power.  Period.  Many people do not want to read them this way today, because they have a strong interest one way or another in the increase in government power.

Take the First Amendment.  "Congress shall make no law..."  In other words, there can be no justification of any kind for the government taking away free speech, press, association, religion, etc.

Unfortunately, forces have been at work for decades from both political parties to undermine this hard and fast protection.  Our most recent assault comes from the Democrats in the guise of the hate crimes bill:

Republican Sam Brownback offered an amendment to the Senate version which said the bill could not "construed or applied in a manner that infringes on any rights under the First Amendment" and could not place any burden on the exercise of First Amendment rights "if such exercise of religion, speech, expression, or association was not intended to plan or prepare for an act of physical violence or incite an imminent act of physical violence against another."

With that amendment, GOP Senators supported the final bill. However when the bill went to the conference committee, key changes were made to the Brownback amendment by the Democrat controlled committee:

Where Brownback had insisted, and the full Senate had agreed, that the bill could not burden the exercise of First Amendment rights, the conference changed the wording to read that the bill could not burden the exercise of First Amendment rights "unless the government demonstrates "¦ a compelling governmental interest" to do otherwise.

That means your First Amendment rights are protected "” unless they're not.

"A compelling governmental interest" leaves the door wide open for your free speech rights to be trampled on the government's whim. Where the First Amendment was designed as a limit on government power (as was the entire Constitution), this law is a blatant attack on those limits and an attempt to expand government power.

So, the government's power is checked unless there is a "compelling governmental interest" in not having its power checked. We're doomed.


  1. spiro:


    Can anyone come up with a WORSE excuse for the government to shut people up than ITS OWN INTEREST????

    Random blogger (possibly nicknamed 'Coyote'): "Hey, why are you taking me away in wrist cuffs?"

    Dudes in black SUV: "Because we say so."

    Blogger: "Huh? Probable cause?"

    Dudes in black: "I got yer probable cause right here, wiseass" (cue taser sound)

  2. Stan:

    A "compelling government interest" is not as vague as it sounds. It comes directly from SCOTUS. They have their own strict scrutiny test to determine if certain government actions causing rights violations are a compelling state interest among other things, and it is usually a pretty high hurdle. But even SCOTUS can get it wrong.

  3. Ken:

    The reference to "compelling government interest" is merely a reference to the established test for whether an infringement of the First Amendment is permissible. Under cases applying strict scrutiny, some infringements are permissible if they are narrowly tailored to advance a compelling government interest. In other words, this isn't something invented for this bill. (That's not an argument that the bill is a good idea; that's a suggestion that the "compelling government interest" reference is not what you suggest it is.)

    Eugene Volokh criticizes the doctrine in question here.

  4. stan:

    "compelling" is an odd term. The govt used force to take away your rights because it was forced to do so. wtf?!

    If the country survived hundreds of years without speech codes and hate speech laws, how is government "compelled" to enact them now? What force overwhelms Congress and requires their enactment?

  5. hoipolloi:

    Who is to say that "compelling governmental interest" will always mean what it now means?

  6. JohnB:

    Your right to free speech is not as important as a liberal's right to not be offended.

  7. spiro:

    "A “compelling government interest” is not as vague as it sounds...." etc,

    Even though this is true, it is still semantics, and interpretation of a law is always in the hands of those in power - regardless of original intent.
    Moreover, complete censorship of discussion, both personal and public, is already commonplace at most major universities in the U.S. (http://www.thefire.org/). This precedent is an obvious bleed-off from the draconian and politically-driven "hate speech" policies that legislators have seen on these campuses, and that tomorrow's legislators are currently being conditioned to accept.

  8. K:

    Don't miss the big picture. The trend is toward a Soviet type of legal system. Procedures are carefully followed but everyone accused is technically guilty.

    And don't expect the judiciary to help you. The judiciary changes slowly but ultimately everyone in it is appointed or vetted by the other branches of government.

    Our government, especially at the federal level, is steadily making any action a violation of law under some statute or rule. These new laws are aimed at intimidating and controlling specific people or groups - usually political opponents - and not at preventing or solving a public problem. They will be enforced selectively.

    This trend is not new. But the pace is increasing.

    As others point out the compelling interest test is an old one. The courts have never ruled the government must instantly become paralyzed whenever anyone cites his civil rights.

    The "compelling interest" test normally applies to emergencies. And it should. But it is not limited to emergencies.

    For example, Affirmative Action has been legally defended as a compelling interest because many believe that the nation is better off with it than without. Obviously that was not believed by all. What matters is whether judges buy that contention.

  9. nom de guerre:

    "your right to free speech is not as important as a liberal's right *not to be criticized*"

    fixed that for ya, john B.

  10. Craig:

    I believe that New London, CT had a "compelling governmental interest" to take away the Kelo's land.

  11. nom de guerre:

    then too, couldn't uncle sam and his demonic minions make their 'compelling governmental interest' legally unquestionable and bulletproof merely by classifying it? "rest assured our interest is both compelling AND legal, but we cannot say more because the issue is 'top secret', and to reveal it would damage national security?

    has any court yet insisted on penetrating the "secret" veil? hell, they *admitted* they burned PCB's at area 51, committed just about every environmental felony known to man, and STILL gave the finger to the workers out there who got sick and sued. as you said, coyote: we're doomed.

  12. Johnnyreb:

    I believe that New London, CT had a “compelling governmental interest” to take away the Kelo’s land.

    October 13, 2009, 4:26 pm"

    Yep they said they did. It was for the betterment of the City and all that. However that entire area to this day lies there undeveloped and what buildings are left are decaying and have become a hazard. We walk the dog past Kelos old place quite often as it is right across the road from Fort Trumbull and that entire area is a disgrace.

    The entire NLDC and the City should be ashamed.

  13. Gil:

    Do laws dealing with libel, slander and directly threatening violence violate the 1st Amendment? If not, why not?

  14. Ted Rado:

    The government keeps passing more and more laws about anything and everything. Ted Kennedy was lauded for having been the source of (as I recall) 2500 pieces of legislation. We will soon have laws regulating which finger you can use to scratch your butt.

    Nobody can keep track of all the laws. For example, I imagine I have broken gun laws hundreds of times. I used to hike in the Gila Wilderness. The trailheads are in the National Monument where having a gun is illegal. You can carry a gun openly in the adjacent national forest. I would put my gun in my pack until I reached the national forest boudary and then attach it to my belt. I have by this time carried a gun into the NM and carried a concealed weapon to the boundary, thus breaking the law twice. Many of our laws are not only absurd but anti-American in spirit.

    We are heading for an elected dictatorship. Pretty soon, everything one does, as in the above example, will constitute a violation of some law. We will then all be at the mercy of the government, who will be able to prosecute anyone at will, as we will all be lawbreakers.

    Maybe we need a constitutional convention to rewrite the constitution so it cannot be misinterpreted to suit the "Big Brother Knows Best" crowd.