Free Speech, RIP

Julian Sanchez wrote a witty piece yesterday about the Supreme Court's crap ruling on the Bipartisan Campaign Reform Act (whose very name signals its intention as an incumbent-protection measure).

I've got little to add to Julian's piece but outrage. So does perpetually pissed-off Justice Antonin Scalia, who called the court's ruling "a say day for free speech."

The ruling is a tribute to the genius who first coined the term "campaign-finance reform" to describe what, by any impartial observer's measure, are clearly infringements on the First Amendment. For god's sake, how the hell can you get away with limiting political speech of any sort, especially right before an election? That there's a "media exemption" only makes it more grotesque--one powerful faction in society (elected officials) throwing a bone to another (the press).

What's worse is the open cynicism encoded in the Court's majority opinion, which states in part, "We are under no illusion that BCRA will be the last congressional statement on the matter. Money, like water, will always find an outlet."

If that is indeed true, then the least Congress and the Court owe us is as few restrictions of speech--"few" as in zero--as possible, so that people can get into the mix as easily as possible. Here's a good piece on the ruling in Investor's Business Daily. Money quote:

"It makes no sense to me at all," said Stephen Presser, professor of constitutional law at Northwestern University. "The First Amendment says Congress shall make no law abridging the freedom of speech, and if prohibiting the kind of commentary they're suggesting 60 days before an election, in lots of different media, isn't abridging the freedom, I don't know what is."

Check out here for a collection of older pieces from Reason about the folly that is campaign-finance reform. And go here for an essential interview with Federal Election Commission maverick Bradley Smith (a major source for the IBD story mentioned above.

Comments

[johnny]

That whole Bill of Rights thing was cool while it lasted. The First Amendment had been in relatively good shape. I guess it will be the second to last to go. (The last to go will be the Second Amendment).

[StMack]

Congress just voted to spend hundreds of billions of dollars to buy the votes of senior citizens - does their throwing a bone to the media for the same purpose surprise anyone!

Scalia sait it best "The first instinct of power is the retention of power, and under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech."

Jonny - they can have the second amendment when they pry it from my cold dead fingers.

[Russ D]

I love how we have 5 idiots in gowns (and their legislative bretheren) who are actually gullible enough to believe, and think we are stupid enough to believe, that corruption and corruptibility are two different things. As if they've to answered the chicken-egg question of whether a candidate is corrupt BEFORE money is offered or only afterwards.

If you can't threaten a politician with money, I'll guess we'll just have to go back to the old method.

[sky pilot]

I wonder if our soldiers in Iraq know what they're fighting for now?

[JDM]

Isn't there supposed to be some sort of slippery slopism going on for years before they just jump on the obvious intent of an amendment with both feet? Where was the equivalent of the assault weapons ban?

[D Lusional]

StMack,

I think you said it as well as Scalia when you wrote in your blog:

From the legislative branch that passed the act, to the executive branch where the measure was welcomed and signed into law, to the judicial branch where it was upheld by the ruling of 5 individuals, government has placed itself above the law. Its assumption of the authority to abridge our rights as individuals has voided the concept of rights and left us with a few tenuous freedoms that we will enjoy as long as they do not conflict with a compelling interest of the state. The Constitution has become functionally irrelevant and the rule of law has been deposed by the rule of man.

[Douglas Fletcher]

It really is time for Sandra Day to come back home to the ranch.

[judson]

The more money you have the more speech you get.

[R. C. Dean]

Where was the equivalent of the assault weapons ban?

That was the post-Watergate campaign finance laws.

The more money you have the more speech you get.

Not any more.

[richard]

It is time to put 5 of the justices out to pasture...retirement should be mandatory for idiots.

[dragoon]

While I'm not sure that limiting campaign contributions and placing strict requirements on donators' identities is wise, since some claim the main effect is to limit the fundraising capabilities of third parties, regulating such donations isn't unconstitutional. I definitely understand the desire to make a politician's backers transparent. Despite specious arguments in the Wall Street Journal editorial section, giving money to someone isn't speech; it's giving money. I can say a terrorist organization's cause is righteous, but giving them money is illegal.
But limiting the speech of other groups before an election is insane! How can they justify this crap? I lost respect for the conservatives on the Supreme Court after the Gore V. Bush decision, and now I don't respect any of them. The exceptions carved out for news organizations is just asking for trouble, as Julian Sanchez has detailed, and those whores in the major news media won't raise a fuss because they're immune. I seriously think this is worse than the Patriot Act. That could at least be justified as Congress wanting to do something after 9/11 (even if it was mostly the DoJ getting their wishes fulfilled). This is a deliberate blow at the 1st Amendment in the name of "fairness", and the Supreme Court went along with it.

[Steve in CO]

Do corporations have the right to free speech? When did corporations become people?

🙂

Signed: Devil's Lawyer.

[John Thacker]

Steve in CO--

So your Devil's argument is that while people can say what they want individually, they don't have the right to voluntary associate in order to pool resources and voice their opinions? I should think that other portions of the First Amendment would apply.

[Jean Bart]

Alright, I don't understand this. In Europe overt campaigning (e.g., political commercials, etc.) is generally banned/discouraged before the election period (an official window of several months generally); but the US is banning political speech during an election?

[Warren]

FUCK! I'm getting drunk and I'm not sobering up till after New Years. Don't wake me till the revolution is underway.

[Warren]

"Congress wrote into BCRA a "media exemption" which would permit newspapers and news broadcasters to engage in untrammeled, anarchic editorializing... even mentioning candidates by name!"

What about blogs?

By the way, the equivilent to the assault weapon ban in free speech are speech codes on campus. The key to eroding a right is to start at the very extreme end and find someone exercising that right in a way that no one else wants to defend - ie, who wants to defend a guy who calls a black person a "n----"? See, even I am not comfortable writing it. So the precedent is set - there are times its OK to limit speech. The next thing you know, more and more gets regulated.

By the way, its interesting to note where the ACLU is on all of this. My understanging is that they have backed campaign finance laws and have in fact generally supported speech codes.

[Julian Sanchez]

Actually, the ACLU condemned the SC decision:
http://www.aclu.org/court/court.cfm?ID=14560&c=261

I don't much like their associated call for public financing of elections as an alternative, of course, but they're on the right side of this one.

[Gary McGath]

I suppose the people who claim that corporations don't have Constitutional rights will say that those newspapers which are wholly owned by one individual are the only ones entitled to freedom of the press.

http://www.mcgath.com/filks.html#crook

[John Thacker]

Oddly enough, Warren, many of the same votes on the Supreme Court who defend child pornography, cross burning, etc. as necessary to protect free speech (a very reasonable argument I generally agree with) found it okay to restrict free speech for political ads.

One exception is Justice Kennedy, who is probably the strongest pro-free speech justice.

[R. C. Dean]

I lost respect for the conservatives on the Supreme Court after the Gore V. Bush decision, and now I don't respect any of them.

What, Scalia and Thomas don't get any props for their vote to overturn and their dissenting opinions? I haven't read Thomas yet, but I found Scalia's opinion to be bang on.

[John Thacker]

It's still true that if you own a printing press, or other official media, then you have free speech. It's not hard to imagine that all sorts of organizations will follow the NRA's idea of acquiring media outlets-- and Sen. Kerry and others have promised to fix that "loophole" through official licensing for what is and isn't a "real media outlet."

As Justice Thomas's dissent says, the slippery slope here appears to be a reality. Congress seems determined to cut down every outlet for speech in the name of closing loopholes, and the left bloc on the SCOTUS is prepared to let them do it.

[Mark S.]

Politics DOES make for strange bedfellows. A couple of months ago I was lambasting Scalia for his bigoted views toward gays in his Texas Sodomy Case dissent, now I'm agreeing with the creep? Jeeze.

[Mark S.]

To there credit, the right-wing squawk show hosts I listened to this morning were rightly peeved at the SC ruling... (after all, they could be next). However, they got in more than a few calls from McCain/Feingold supporters who didn't find anything wrong with censoring adds 60 days before an election becase the ads in question are "hateful and inflamatory" and the voters need a "cooling off period."

The question of the media being exempt from McCain/Feingold was shrugged off on the grounds that the press are "professionals" and "independent" from the "speical interests" who want to control our electoral process.

Yeah... right.

[Rick Barton]

I'll give up my 1st amendment rights when they pry my cold, dead fingers from my key board. So, I guess we have to go to congress now and change the law. This is a nightmare.

[al qaeda]

We're workin' on it.

[Gary McGath]

Rick Barton:

As if Congress is going to give up a law which makes some criticisms of them illegal. We might as well expect them to vote for term limits on themselves.

[Rick Barton]

Perhaps some new congress people. Something has gotta be done.

[Fischer Paul]

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[Legesse Dan]

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