The First Amendment protects you if you dance nude or defecate on Old Glory. But if Wisconsin's attorney general and election regulators get their way, it won't protect you if you call a politician "liberal" in that state.
This attempt to stifle free speech results from bureaucratic efforts to regulate elections. Now that the U.S. House of Representatives has approved a bill to regulate soft money and issue-oriented campaign ads, a look at Wisconsin is instructive.
The trouble started in '96. Advocacy groups and labor unions used TV, radio and direct-mail campaigns to educate Wisconsin's voters about where candidates stood on the groups' various pet issues.
In a $400,000 ad campaign, Wisconsin Manufacturers and Commerce, the state's largest business group, chastised one state senator for "voting against curbs on frivolous lawsuits," and called him "liberal." WMC accused another state senator of never meeting "a tax he didn't like."
Both ads asked voters to call the senators and voice their disgust. But neither one asked people to "vote against" these candidates.
The targeted politicians and some citizens complained to the state Election Board, and sued WMC and other groups running ads. A county court judge ordered the ads off the air.
Meanwhile, the election board set out to see whether the groups had violated the state's campaign finance regulations, which bars firms from engaging in electoral politics.
The board's attorney said no, citing the 1974 U.S. Supreme Court decision in Buckley vs. Valeo. That decision is widely interpreted as requiring ads to say such magic words as "vote for" or "vote against" a candidate before they are considered "express advocacy," and thus fall under the purview of the government.
The board decided to act anyway -seeking to fine WMC and attempting to regulate its future political activity. The case went to state court, where it was dismissed by a district judge. Wisconsin Attorney General James Doyle, who represents the election board, has appealed the case.
Doyle believes that political-speech standards should be developed "on a case by case basis" similar to obscenity standards. He reasons that since courts are able to determine what is obscene, so too should they be able to determine what constitutes political speech. And there is no need for the new rules to be defined with such " 'godlike precision' that the regulatory power of the states is removed."
But constitutional scholars disagree.
"It's backwards," said Lillian Be- Vier, a professor at the University of Virginia Law School. "The reason we have difficulty figuring out how much obscenity we should regulate is because we care so much about political speech."
"This is the kind of analogy that you would expect from a regulatory mentality," said John R. Bolton, co-counsel in the Buckley case.
Jim Haney, Doyle's spokesman, denies that his boss believes that political speech is equivalent to pornography. "What we're saying is that the constitutional definition is clear enough," he explained.
But is it? Does the context argument mean that conservative speech violates community standards in liberal Madison?
That may be. The Wisconsin election board is also pursuing a case against Americans for Limited Terms, but did not prosecute the Sierra Club or labor unions.
The Constitution's framers created the First Amendment primarily to protect speech unpopular with politicians in power. It's hardly surprising that sitting politicians don't like well-funded advocacy groups informing voters of their records. It is surprising that Americans would consider putting those politicians, even if only indirectly, in charge of political speech police.
This is one reason why the American Civil Liberties Union has sided with the business group. While imperfect, the "magic words" standard for express advocacy takes discretion away from government regulators and allows individuals to stay within the law while speaking loudly.
Doyle isn't likely to succeed. In late June, the Wisconsin Supreme Court ruled unanimously that the First Amendment protected a person's right to befoul the American flag. In the same month, the court cited the First Amendment in striking down a law that barred nude dancing. For the same court to side with Wisconsin's attorney general to limit political speech would set an outrageous precedent.