The First Amendment Is in the Political Crosshairs

February 1, 2021 Updated: February 2, 2021


I stood on the Kansas House floor as a newly minted state legislator in 1994, opposing legislation that most of my colleagues desired, and which would make life much easier for those in power. The bill criminalized lies stated during campaigns.

Believe me, I was sympathetic!

And I remain sympathetic. I can’t count the lies and misrepresentations that have been uttered by my political opponents regarding my public service. Yet, then and now, I oppose criminalizing politics. Affording government the power to determine what is a truth and what is a lie, backed by the threat of fine or imprisonment, chills the type of speech that is the lifeblood of a healthy democracy—political speech.

A free country must proceed on the presumption that citizens will endeavor to learn the truth, and that those vying for elective office will hold each other accountable to the truth. Moreover, I said in 1994, such a law would likely run counter to the First Amendment of the Constitution. The rejoinder to my criticism from the bill’s co-author still rings in my ears: “Can’t you just forget about the Constitution for once!”

My answer, then as now, is that I cannot “just forget” about the Constitution. Nor should you.

Our founders recognized the need for vigorous and aggressive debate as a method of seeking and discovering truth, forcing transparency, and enabling the electorate to hold public servants accountable. They also recognized that each individual has the inherent right of expression. Give a fool a stump to stand on, for we value free speech to the point that we allow fools to reveal themselves. This is why I don’t believe government officials should be arrested for their rhetoric, even if they grossly misrepresent substantive issues.

It took me a full year in the legislature to realize that a “budget cut” was actually a reduction of the requested increase in a budget. When Kansas public schools called for a budget increase of 20 percent and the legislature passed an 8 percent increase, for instance, this was referred to in the media and by education officials as a 12 percent budget cut, despite the fact that the increase exceeded both inflation and pupil population growth.

In response, I was motivated to inform the electorate of the truth—not arrest public school officials.

Many in Congress today are taking the opposite approach.

Today, the authoritarian impulse to force cultural hegemony and groupthink has gained political prominence, undermining faith in the ability of the American public to discern truth from fiction and foolishness from wisdom. This loss of faith in the individual has joined forces with the ascendance of the false belief and hope that government can keep all of us free from being offended.

And so the left assaults free speech. HR 1, pushed each year by leftists in Congress, seeks an objective that most Americans would agree with in principle, but which, in method, defeats its claimed objective. The bill criminalizes material misrepresentations about elections and endorsements, granting prosecutors the opportunity to define what is material and what is a misrepresentation in order to advance their political agendas. The fear that this would inevitably generate would chill speech even before any politically motivated prosecutions could materialize.

There were a grand total of 58 federal crimes when our Constitution was adopted, all of which involved clear moral wrongs that directly and intentionally harmed others—rape, murder, battery, and so on. A few years back, Congress asked the Congressional Research Service to count all current federal crimes, and after two years, CRS came back and reported that the task is impossible. There are hundreds of thousands of federal crimes.

As a former prosecutor, I understand that this makes it possible to manufacture a criminal out of virtually any person. All it takes is patience.

This temptation to criminalize political opponents has always overcome weakly constituted persons who hold such power. Moreover, this raw exercise of government power masquerades as virtuous under a false guise of government’s role.

Our government wasn’t formed to keep us safe from offense. It was formed to keep us free!

Freedom, however, is one of the most uncomfortable conditions in which to exist, for it forces self-responsibility—and in today’s victim society, we teach that everyone but self is responsible for our present condition. This obsession keeps all of us in a state of fear, and we vainly call on government to alleviate the fear that government helps create. Do you not sense the fear in America today? Into this breach, step powerful elected officials and social media giants who seek to appropriate to themselves the power to determine what is a lie and what isn’t in order to protect you from yourself.

The criminalization of political speech and political conduct strikes at the heart of a free republic. And that’s what we are—a democratic-republic built on the recognition that each individual has value. We aren’t a democracy; at least I hope not. In fact, our nation cherishes the most anti-democratic document in human history—the Bill of Rights, which protects us from mob tyranny.

Now, identity politics directly attacks the individual and proclaims that persons of certain groups have greater rights than those in other groups. Those in power, therefore, feel justified in using that power to oppress those who refuse to join the dominant group, and as a result, the formerly oppressed become the oppressors.

The cycle is only broken when courageous leaders step forward and offer what the world views as foolish—faith and grace. Faith in one another and the grace to defend the freedom of expression of others, even when they offend, for we must be humble enough to recognize that none of us walk unerringly on the path of truth—we live and we learn. This perspective prevents division from devolving into violence.

This requires us to view each individual as inherently valuable, rather than allowing government to define extrinsic value applying utilitarian analysis. The math of utilitarianism is as brutal to the individual as mobbism and identity politics, for two is always greater than one. And that is why HR 1 must be defeated in Congress.

Because a free nation cannot endure when its people aren’t willing to stand for the freedom of others, especially when they disagree.

Phill Kline is the former attorney general of Kansas. He currently serves as pulpit pastor of Amherst Baptist Church, a law school professor, and director of the Amistad Project of The Thomas More Society. Previously, he served as president of the Midwest Association of Attorneys General, was on the executive committee of the National Association of Attorneys General, and was co-chairperson of the Violent Sexual Predator Apprehension Task Force. He was a Kansas House member for eight years, where he chaired the Appropriations Committee and the Taxation Committee and authored victims rights laws and welfare reform.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.