The First Amendment has a new and unlikely champion. In last week’s Senate Judiciary Committee hearing for Seventh Circuit nominee Rebecca Taibleson, Democrat Rhode Island Sen. Sheldon Whitehouse came out strongly against the prosecution and harassment of disfavored speech.
“Tell me where the boundary is between First Amendment-protected speech and unlawful, prosecutable misconduct,” he asked Taibleson. She responded that it runs through the difference between speech and conduct and that there are rare exceptions like threats, fraud, and libel to the otherwise accepted robust protection of speech.
Whitehouse went on to observe, “But those boundaries have been there for a long time and are quite clear to ordinary, normal judges, correct? And does that boundary shift in any respect depending on which side of a public argument you are on?” Taibleson responded that viewpoint discrimination is essentially never allowed.
Where Whitehouse was going was no surprise to anyone following the news recently, but he made it clear anyway.
“The reason I ask,” he explained, “is that I think we’re seeing an administration that wants to attack and perhaps even criminalize or at least burden with investigation and prosecution protected speech that it just happens to disagree with, because the protected speech is to disagree with and challenge the administration.”
He concluded, “I think it’s really important in that context that courts hew to that well-established line.”
How the worm has turned. Whitehouse is correct, of course, political speech should not be “burdened with investigation” or prosecuted just because it happens to disagree with those in power. It’s also entirely inconsistent with the views of the senator and his allies on the left.
The very day before Taibleson’s hearing, Whitehouse launched an investigation to harass private entities that he suspects used their First Amendment right to petition the government in ways of which he disapproves. Whitehouse suspects these groups oppose the so-called “endangerment finding” at the EPA relating to greenhouse gases and, as such, they need to be burdened with investigation.
This should come as no surprise to Whitehouse’s other victims, most notably Leonard Leo. For years, Whitehouse has given speech after speech — and sent letter after letter — to Leo. His schtick alleges corruption by the legal-conservative movement, but it’s not actual corruption in any way recognized by the law. It’s the “corruption” that comes when people work together to do things you don’t like. In the end, Mr. Whitehouse’s objections boil down to people spending money on advocacy campaigns of which he disapproves.
This is a constitutionally violative view of corruption that has unfortunately seeped into our courts. This spring, for example, the D.C. Superior Court ruled against fossil-fuel companies for working with their trade association to advance their interests in advocacy campaigns. This speech was supposedly fraudulent because the environmentalist left disagrees with it.
The calls we’re hearing on the right, in the wake of Charlie Kirk’s horrific murder, to go after the left-liberal funding sources sound very familiar to anyone who has listened to Whitehouse decry “the Scheme.”
Indeed, Whitehouse has a particular hatred for anonymous donors. As he complained in one of his many speeches against Leo, conservatives use pass-through entities to “scrub the identities of actual donors.” This, in turn, “creates dark money.” You see, “Anonymity is key for these donors, many of whom have financial interests behind their political schemes that they really don’t want disclosed.”
Well, it seems the Trump administration agrees. As Deputy Chief of Staff for Policy, Stephen Miller, explained last week, “The key point the president has been making is somebody is paying for all of this. This is not happening for free, and so … the attorney general is going to find out who is paying for it, and they will now be criminally liable for paying for violence.”
While Democrats recoil from it, they are just living in Sheldon Whitehouse’s America. Or at least it was until Taibleson’s hearing.
So while it was heartening to see that Whitehouse now recognizes the primacy of speech, it looks a lot like a deathbed conversion or a marriage of convenience. If he truly believes it, he should abandon his decade-long quest to punish and criminalize those whose speech he disagrees with.
If he doesn’t do that, it’s easy to see why the Trump administration would apply the same set of rules to Whitehouse’s friends as he applies to his enemies. They’re just following his lead.