Roberts: Thomas Massie Stands for Free Speech, Even When He Stands Alone

by | Nov 22, 2023 | Opinion

On Monday, Thomas Massie was the lone Republican in Congress to vote NAY on Amendment 114 to H.R. 5894, the Appropriations bill for Labor, HHS, and Education Spending.  The Amendment, introduced by New York RINO Mike Lawler, prohibits any federal funds from going to any university “that authorizes … any event that promotes antisemitism.”  While Thomas Massie has been an adamant supporter of cutting education spending, going so far as to introduce legislation to abolish the Department of Education, one’s Commitment to the Constitution must come first.

One may immediately think that no one has the right to government funding for their speech, but that would better support Rep. Massie’s bill to abolish the Department of Education, not Lawler’s Amendment.  But the government cannot give money to messages with which they agree and then deny funding to messages with which they disagree.  

In 1987, the Supreme Court outlined the limit of Congress’ Spending power, their ability to appropriate funds, in South Dakota v. Dole, 483 U.S. 283 (1987).  In Dole, the Court held, in part, that the federal government cannot condition funding upon policies that would violate separate provisions of the Constitution.  Dole, 483 U.S. at 310 (holding the Spending Power “may not be used to induce the States to engage in activities that would themselves be unconstitutional”).  This is known as the “Independent Constitutional Bar” restriction on the Spending Power.  This ensures that Congress cannot use the power of the purse to trample upon your rights.  This doctrine is the reason why Congress cannot ban funds from going to states that allow you to own a firearm, because coercing a state to ban guns would be a clear attempt to violate the Second Amendment.

Thomas Massie

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Likewise, coercing government universities, which are state actors, to ban antisemitism would be a violation of the First Amendment, thus causing Amendment 114 to run afoul of the Independent Constitutional Bar.  Justice Sam Alito puts it perfectly: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”  Matal v. Tam, 582 U.S. 218, 246 (2017) (quoting United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting)).  Matal v. Tam was a UNANIMOUS Supreme Court decision holding that there is no hate speech exception to the First Amendment.  

At the end of the day, even the most horrific speech must be protected.  The Supreme Court knew this when they allowed actual Nazis to march through a Jewish neighborhood.  National Socialist Party of America v. Village of Skokie, ​​432 U.S. 43 (1977).  The Court knew this when they protected the right of the Westboro Baptist Church to picket outside a fallen soldier’s funeral because he was Catholic.  Snyder v. Phelps, 562 U.S. 443 (2011).  If we only protect free speech when we agree with it, we are not protecting free speech; we are protecting the viewpoints with which we agree.

But the First Amendment’s protection of antisemites, neo-Nazis, and other hateful people is the same protection that protects people who lovingly preach the gospel of Jesus Christ and give free hugs and the expression of your viewpoint… even if you disagree with this article.  We can disagree with the antisemitism Amendment 114 attempts to address, but we cannot violate the Constitution in our disagreement.  As Rep. Massie puts it: “Protecting free speech means protecting speech you don’t like, even if it opens you up to criticism.”

The Supreme Court has applied this logic to college campuses too.  In Rosenberger v. Rector and Visitors of the University of Virginia, the Supreme Court held that the University of Virginia Violated the First Amendment when it refused funding to Rosenberger’s Christian Ministry while giving funds to groups expressing other viewpoints.  515 U.S. 819 (1995).  As mentioned previously, Congress could defund the universities in their entirety, but they cannot condition their funding on a university banning a particular viewpoint.  Therein lies censorship.

As Ron Paul Institute Executive Director Daniel McAdams observed, “‘Cancel Culture’ is not just a left-wing phenomenon.  Rep. Lawler is plainly attempting to use the force of the Federal Government to solicit state entities – public universities which are known for discriminating against Christian, conservative, and libertarian students – to violate the free speech rights of individuals.  If Lawler had defunded all public universities regardless of the viewpoints of their students, this would have been a perfectly constitutional provision.  That is not what he did.  One must never disregard the Constitution, even if it gets in the way of their desired outcomes.  Thank you for keeping your oath, Rep. Massie.

You can follow TJ Roberts on X at @realTJRoberts

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