Congressional Freedom of Speech

As the U.S. House of Representatives voted recently to strip Marjorie Taylor Greene of all her committee assignments, I was reminded of two sections of the Constitution. The first is Article 1, Section 5, which reads, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.” Clearly the Constitution gives the House the power to punish its own members for wrongdoing. Yet, at the same time, I also cannot help thinking of the First Amendment, which states, “Congress shall make no law…abridging the freedom of speech.”

Coming to terms with these two sections can be difficult. If members of one party say something that members of the opposite party find extremely offensive, should the opposite party be able to censure someone from the first party? What rights to freedom of speech are given to members of Congress and what have we seen historically? 

Anyone who has ever taken a class from me has at least once heard me rant against the misunderstanding of freedom of speech. That clause of the First Amendment does one thing and one think only; it protects you from government censorship and perhaps prosecution.  It does not protect you from the consequences of your words. For politicians it could cost you an election, but not your freedom. You can say that Trump is a dictator or that Biden is senile, and government officials will not come kick down your door and take you away.

However, if you are in your workplace and rant about how your bosses are tyrants or senile, you may be fired. The First Amendment does not protect that speech. Not even all political speech is protected. If you wear a shirt that says “Make America Great Again” or “Black Lives Matter” at a workplace that has a policy against wearing political slogans, you can be fired. This is not a First Amendment Issue.

This is the most confused amendment in the Bill of Rights. The Founders did not intend to remove people’s responsibility for their actions or speech. They wanted to protect the people’s right to say what they thought, even peacefully protest the actions of their government. When passed, the Bill of Rights only applied to federal cases, not state ones, so, before the 1920s, the Bill of Rights actually had little effect on most people’s lives. Yet today, “freedom of speech” is thrown around like some sort of weapon every time anyone is criticized for their words.

Where I am torn is that it seems like the one place where there truly should be freedom of speech is in the Congress. The amendment literally says, “Congress shall make no law…abridging the freedom of speech,” yet is that not what is happening? Please understand that I am no way supporting the comments made by Rep. Green. What I am saying is the Constitution does not give freedom of speech only to statements we agree with or only for intelligent comments. No, it’s there for the exact opposite, for the outlandish and controversial things. I said I was torn. It does seem like there should be a line that our elected representatives do not cross. But the Constitution does not say that either.  The courts have weighed in on this and have deemed some speech is not protected, such as incitement to lawless action or child pornography, but conspiracy theories are not on the list. Maybe, especially with the House, it should be up to the voters if they think she has gone too far in the next election. 

Having said that, there is precedence. In 2019 Republicans removed one of their own, Rep. Steve King of Iowa, from committees after he questioned why “white supremacy” was offensive. Even bigger was the 1954 censure of the junior Senator from Wisconsin Joseph McCarthy. There is no room for many details here, but McCarthy took advantage of American’s fear of communism to make himself powerful. He claimed to have a list of communists who had infiltrated high levels of government and the entertainment industry. He set up a committee to hold hearings to expose anyone supporting the communist cause. During the hearings he accused people of being communists without evidence to the point that it ruined their careers and lives. After four years he finally fell when he questioned the U.S. Army after they refused to defer one of his staff from the draft. With no evidence, he made several accusations on TV that finally showed him as the bully he was. With his fall from grace, the Senate voted 67-22 to condemn his actions and strip him of key committee membership.

There is one key difference between Steve King, Joe McCarthy, and Marjorie Taylor Greene. In the cases of King and McCarthy, Republicans punished their own as is tradition. With the Greene case, the Republicans condemned her comments, yet the Democrats (now the majority party), along with only 11 Republicans, did not feel the punishment was strong enough and stripped her of committee assignments. It is highly irregular to interfere with committee assignments made by each party. Though her comments were inappropriate and have been disproven in the courts, it might just be a slippery slope for the opposing party to start the practice of punishing their opponents for comments made, especially ones they made earlier in their lives. Some Republicans have even talked about retribution if they take over in 2022.  They point to racist and violent comments made by Democratic legislators. Is this really how we want Congress to spend their time?

Free democratic governments are hard. There is a reason historically there have not been that many successful ones. Freedom of speech is one of the things necessary for a free government. Yet freedom of speech means people will say things you despise. Rep. Green was elected by her state because of who she is. If her constituents deem her unfit, they are not bound by the First Amendment and have the opportunity to make changes next year.

Dr. James Finck is a Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. To receive daily historical posts, follow Historically Speaking at or on Facebook.

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