Senate Democrats Offer Constitutional Amendment Stripping 1st Amendment Rights

Eugene Volokh:

The Lachlan Markay (Washington Free Beacon) reports on the Tester/Murphy amendment, which would provide:

Section 1. We the people who ordain and establish this Constitution intend the rights protected by this constitution to be the rights of natural persons.

Section 2. The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities established by the laws of any State, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected State and Federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Section 3. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people, which rights are unalienable.

The proposed amendment would authorize Congress, states, and local governments to, for instance, (1) restrict what most newspapers publish, (2) restrict what most advocacy groups, such as the ACLU, the Sierra Club, and the NRA, say, (3) restrict what is said and done by most churches, and (4) seize the property of corporations without just compensation. (It might also allow restrictions on the speech of unions, depending on whether they are seen as “corporate entities.”)

Nearly all major newspapers and magazines are owned by corporations; the same is true of book publishers, movie studios, record labels, and broadcasters. Indeed, if you want such entities to be able to raise money for their operations through the stock market, you have to have them be organized as corporations. Likewise, most nonprofit organizations are organized as corporations — that, too, makes sense, since it makes sense to have the ACLU run as a corporate entity rather than as a sole proprietorship owned by one person, or a partnership owned by a few people. Churches are likewise often organized as corporations, sometimes with a special sort of corporate status.

Under the proposed amendment, all these groups — as well as ordinary businesses — would lose all their constitutional rights. Instead of “strict scrutiny” for content-based regulations of the press or of nonprofit advocacy groups, Congress and state and local governments would be free to impose any restrictions they “deem reasonable.”

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