The death in Kansas of an evangelical leader and a decision of the Supreme Court put the First Amendment of United States Constitution in the spotlight
The First Amendment of the U.S. Constitution guarantees, among other things, complete freedom of speech regardless of the content expressed.
This clause was introduced in the larger constitutional body by James Madison in 1791 as part of the Bill of Rights in order to remove the power of censorship from the hands of a monarch or any public authority while attributing it exclusively to the People.
In recent weeks, the First Amendment has returned to the headlines in America in relation to two cases that are very different from each other, but similarly interesting for their "extreme" reading of this constitutional right.
On March 25th the Reverend Fred Phelps died in Kansas, where he was the founder and leader of the Westboro Baptist Church, a group of fundamentalist fanatics known for their hateful anti-gay protests.
The congregation, which can be compared to a "family cult" since many of its members are related, became famous for its outrageous picketing at funerals of members of the homosexual community starting in 1998 when a young man named Matthew Shepard was attacked, tortured and killed in Laramie Wyoming because of his sexual orientation. Understandably, the murder caused great consternation among the public, an uproar that nevertheless didn't prevent Phelps' group to organize a public demonstration at Shepard's funeral waving signs with slogans such as "Rot in hell" and "God hates fags".
More recently, following a growing notoriety, the Westboro Baptist Church has extended its range of action to include picketing at pop concerts (Lady Gaga); protesting at the memorials of famous politicians' parents (Hillary Clinton's mother and Al Gore's father ) and more famously, demonstrations at the funerals of fallen Iraq and Afghanistan soldiers, all with the same outrageous signs on full display ("Thank God for dead soldiers" or "Thank God for 9/11").
In spite of the atrocious nature of its message however, the freedom of speech guaranteed by the First Amendment gives these people the inalienable right to express their views without any fear of censorship. It is a privilege that, as difficult as it is to accept in a case like this, is also the symptom of remarkable maturity on the part of a nation able to consistently apply the underlying principles of its constitution .
The second episode that has brought the First Amendment to the center of the political debate is the recent decision of the United States Supreme Court to remove any limit on financial contributions to political candidates during election campaigns. The repeal of these restrictions, which were originally put in place in the 70's following the Watergate scandal, now allows people to donate up to $ 3.6 million to their favorite candidates, legitimizing and increasing the influence of money in politics and allowing a minority of super-rich to virtually "buy" candidates and their political agendas, creating the ideal opportunity for future "Quid pro quo".
Since the U.S. Supreme Court examines only cases that call into question the constitutional legitimacy of laws, the rationale that has led to this decision is that, in the view of the judges, financial contributions are comparable to the "right to express an opinion" and as such, are protected by the First Amendment.
The fact that donating money to a political candidate is comparable to freedom of speech looks ludicrous to the eye of a layperson. Nevertheless, the conservative majority in the court (which includes two judges of Italian origin, Antonin Scalia and Samuel Alito ) and their supporters in the Republican Party, argued that there is no direct correlation between financial contributions and the potential danger for corruption even when these politicians are elected thanks to money donated by millionaires.
The example that conservatives have repeatedly brought up in an attempt to provide a veneer of logic and legitimacy to their argument is that these donations are comparable to the investments needed to start and manage a newspaper or a radio station. Mass media, the argument goes, tend to influence public opinion through their editorial pages, a right that is guaranteed to them by freedom of speech as defined by the First Amendment. And, since running a newspaper or a radio station requires money, it follows that the direct donation of unlimited funds to a political candidate needs to be protected in the same way because it aims at achieving the same result: to influence the political opinions of the electorate.
The first interesting feature to emerge from this argument is that, according to this logic, the right to freedom of expression does not exist by itself but only in relation to the money needed to exercise it.
The possibility to contribute huge sums of money can not be compared to freedom of expression, because the billionaire who wants to express his/her opinion and thoughts can freely do so without spending a dime.
The disbursement of money, be it for campaign contributions or for the management of a newspaper, is not a prerequisite for the expression of an opinion but rather for its spread. In other words, if one wishes to speak to the public on the health benefits of a vegetarian diet for example, one can freely express oneself on the street or other public venue. The investment of thousands or millions of dollars in and of itself would not necessary to express an opinion. It becomes necessary only if one intends to convey this message of converting thousands of voters to vegetarianism. Money is necessary only to increase the diffusion of the message but doesn’t affect in any way the right to express it.
The third and final paradoxical aspect of this story is that there is a substantial difference between trying to influence public opinion through the editorial pages of a newspaper and by directly financing the election of a politician. While the former targets the largest electorate that will ultimately make the decision to pick a candidate by filtering one's opinion through their own, contributing directly to a political campaign skips a fundamental layer of this process by bypassing the electorate altogether. Politicians are elected to be representatives of the people. Their job is to make laws, that is, to create the very rules that will govern social interaction.
To make a sport analogy, a billionaire who is also the owner of a football team is free to use his money to buy the best players on the market in order to win the championship, but not to buy extravagant gifts for the referees of the games that his team is going to play.