Biden’s record long, mostly strong on free speech
With a few exceptions, Democratic vice presidential candidate Joseph Biden’s
record as a six-term senator from Delaware indicates he is a proponent of First
Amendment rights. In his legislation, votes and public comments, Biden has often
shown deference to free speech and religious freedom.
Biden, a Roman Catholic, has said on numerous occasions that Democrats have
struggled in the past two presidential elections because they have not spoken
openly about their faith. The Associated Press reported on Aug. 13, 2007, that
Biden said at a New Hampshire Rotary Club luncheon that Democrats had been
afraid to talk about faith, even though he thought voters wanted to hear that
the candidates have both a belief of some type and a respect for the faiths of
Biden acknowledges the establishment clause and has been careful to protect
freedom of religious expression. After the 9th U.S. Circuit Court of Appeals
released a decision in 2002 in Newdow v. Congress declaring the Pledge of
Allegiance unconstitutional because of the phrase “under God,” Biden voiced his
“The Establishment Clause of the First Amendment was written to prevent our
government from choosing one religion over another. It was not written to
prohibit the government’s acknowledgment of God. In my opinion, the 9th Circuit
Court of Appeals’ decision is wrong,” Biden said in a June 26, 2002, statement
on his Senate Web site.
Biden voted in favor of both the Equal Access Act of 1984 and the Religious
Freedom Restoration Act of 1993, which are now part of U.S. law. The Equal
Access Act made it unlawful for public high schools receiving federal funding to
deny equal access to limited open forums for student speeches based on
religious, political or philosophical beliefs. The Religious Freedom Restoration
Act affirms that the government “shall not substantially burden a person’s
exercise of religion.”
Biden voted in 1997 against a proposed a constitutional amendment by Rep.
Ernest J. Istook Jr., R-Okla., that would have explicitly protected the rights
of children to pray in school and of schools to display religious symbols. While
proponents of Istook’s amendment, which did not pass, had said that it would
increase religious freedom, critics said that it would allow religious schools
to receive tax money, and it could isolate religious minorities, according to a
March 25, 1997, article in The New York Times.
Biden cited protection of religious freedom as a concern when, as a long-time
member of the Senate Judiciary Committee, he voted on the nomination of Judge
Samuel Alito to the Supreme Court. In a Jan. 24, 2006, statement to the
committee, Biden said, “I’m convinced that Judge Alito will join with the
present members of the court who have struck down three dozen federal laws, more
than six times the rate of activism over the history of our republic, laws which
said you can’t have guns within a hundred to a thousand feet of an elementary
school, laws battling violence against women, laws requiring the clean-up of
low-level nuclear waste, and laws designed to ensure freedom of religion.”
In the realm of speech, Biden denounced the Supreme Court’s 2007 decision in
v. Frederick, in which the Court ruled that an Alaska high school
principal did not violate the First Amendment when she punished a student for
displaying a “Bong Hits 4 Jesus” banner.
“The opinion drastically cut back the Constitution’s protection of public
school students’ rights of free speech,” Biden wrote in a July 2, 2007,
editorial published in The Miami Herald. Biden has taught constitutional
law at Widener School of Law in Delaware since 1991.
Free speech, expression
Biden was also the author of an amendment
to the 1978 Foreign Intelligence Surveillance Act preventing the government from
targeting U.S. citizens for exercising their First Amendment right to free
speech, according to a Sept. 21, 2008, Congressional Quarterly report. In
2001 Biden voted to limit wiretapping authority under FISA, and in June 2008 he
voted against a bill that would expand FISA procedures for acquiring foreign
The Delaware senator has repeatedly voted against measures to amend the
Constitution to prohibit flag desecration. When such an amendment was discussed
by the Senate Judiciary Committee in 2006, Biden proposed a counter amendment
that would replace the word “desecration” with specific types of defilement. He
said that the government had too much leeway to define the term “desecration,”
according to Associated Press reports. The committee rejected his proposal and
approved the flag-desecration amendment for a Senate floor vote, where it
One First Amendment issue on which Biden has been criticized is his
sponsorship of the Reducing Americans’ Vulnerability to Ecstasy Act of 2002,
also known as the RAVE Act. Under the RAVE Act, the government could prosecute
property owners who make available for an event property on which drugs are
found. The bill did not pass in 2002, but Biden inserted a similar piece of
legislation, the Illicit Drug Anti-Proliferation Act, into the Prosecutorial
Remedies and Other Tools to End the Exploitation of Children Today (PROTECT)
Act, which was signed into law on April 30, 2003.
RAVE drew negative reactions in June 2003 when a fundraising concert in
Montana for the National Organization for the Reform of Marijuana Laws and
Students for Sensible Drug Policy was canceled on the day it was to occur. The
independent Austin Chronicle reported on June 20 that a Billings, Mont.,
branch of the Drug Enforcement Administration told operators of the venue that
under the RAVE Act they would be fined if any drugs were found during the
concert. Although they did not demand that the managers cancel the event, the
According to the Chronicle, NORML’s director said that the venue was
unfairly targeted by DEA officials because the event advocated drug-policy
“The First Amendment seems clear here; that is a violation. The government
can now immediately and proactively stop people [whose views they disagree with]
from gathering,” Allen St. Pierre told the Chronicle.
As senator, Biden supported greater transparency in
Supreme Court proceedings. In 2000, he co-sponsored a bill that would require
the Supreme Court to televise its public sessions.
“Since the Supreme Court … has assumed the power to decide cutting-edge
issues of public policy virtually as a super-legislature, the public has a right
to know what the court is doing,” said a release from the office of Biden’s
co-sponsor, Arlen Specter, R-Pa. The bill did not pass.
Biden’s work in campaign finance has indicated a
willingness to restrict election financing in this area. In 2001, Biden
supported South Carolina Democrat Sen. Ernest Hollings’ constitutional amendment
attempt. The amendment would have allowed Congress to set “reasonable limits” on
contribution and expenditure amounts supporting or opposing candidates for
nomination for, or election to, federal office. States would also be able to set
limits in their own elections. Although the Supreme Court held in its 1976
v. Valeo that the First Amendment protected, to some degree, political
expenditures and contributions, Biden said the decision misconstrued what
constituted free speech.
“In holding that limitations on campaign finance expenditures violate the
First Amendment, Buckley mistakenly equates money and speech. But as
Justice Stevens pointed out recently in Nixon
v. Shrink Missouri Government PAC, money is not speech; money is property,” Biden said in a Senate floor statement on April 26, 2001.
In defending the Hollings amendment, which did not pass, Biden referred to an
article by First Amendment scholar Ronald Dworkin.
“Professor Dworkin’s article shows that the mistaken factual premise in
Buckley is rooted in a fundamental misconception of First Amendment
jurisprudence. Senator Hollings’ effort to make clear that reasonable limits can
be imposed constitutionally on campaign expenditures would restore that
jurisprudence by overturning Buckley,” Biden said.
Biden also said democratic dialogue was weakened when money is equated with
speech, and restrictions further rather than hinder freedom of speech.
“Reasonable restrictions on activity in the political realm, like
contributing money, may be erected to protect core First Amendment values, like
equality of political discourse. That is all that most proponents of campaign
reform want to do, and that is all that the Hollings Amendment will do,” he told
his Senate colleagues during debate.