Brownie Points

Before we consign all the very special moments in the John Roberts confirmation hearings to the graveyard of history, let me say a good word for Sen. Sam Brownback (R-KS). Watching Roberts reruns this weekend, I was wowed by the Prodigy-hatin', clone-bannin', dice game-bustin' Jayhawk's ability to start off on a soporific, stream-of-consciousness monologue about virtual child porn, then walk it back to an actual, valuable point. Let's go to the tape:

BROWNBACK: … I want to take you back to the First Amendment discussions. And this is an issue in an area that I've just not understood where the court's been going, and I hope you're going to be willing to answer some of this analysis or give me, at least, your thought on how the court got to where they did on these issues.

First Amendment, everybody knows: Congress shall make no law abridging the freedom of speech.

Well-known, well-regarded, highly—broadly interpreted by the courts to the point that you would get court opinions—and I just want to quote these. This is actually in a Supreme Court opinion, that the court would in the past four years when this opinion was issued, in—I think it was 2003—the last four years, the court had sternly disapproved—sternly disapproved—restrictions upon certain forms of speech such as virtual child pornography. The court said, can't do that, limit that speech. Tobacco advertising: the court said, can't limit that speech. Dissemination of illegally intercepted communications: you can't limit that speech. Sexually explicit cable programming: can't limit that speech…

All right, so the court has been, it seems to me, very pronounced in this area—free speech, can't limit it—basically to the Congress. Can't limit it.

And to the point, you know, where it goes to the issue of virtual child pornography—and that was the case of Ashcroft v. Free Speech Coalition. And I want to describe this in a little bit of detail, because I want to back it up and ask another question associated with it.

Ashcroft v. Free Speech Coalition, the court struck down a congressional statute regulating pornography, in this case Child Pornography Prevention Act of 1996, expanded the federal prohibition on pornography to include virtual child pornography—realistic images which were made without the use of actual children.

But the Congress based its opinion on the basis that pedophiles will use this material to recruit, over the Internet, individuals to draw in children into sexual activity.

And so we found out about that, investigated it, did a number of hearings and said, We've got to stop this stuff.

The court says you can't do it. It's limitation on free speech.

Then, not long ago—as a matter of fact, the opinion was issued in 2003—we had a big debate on campaign finance reform, in front of the Congress. One of the members of our committee, Senator Feingold, was one of the lead sponsors of the McCain-Feingold piece of legislation.

And it came in front of the courts—McConnell v. Federal Election Commission. And the court largely upheld the McCain-Feingold law, one section of which did this: prohibited corporations, labor unions and other organizations from political advertisement that mentioned a specific candidate or office holder within 60 days of a general election.

You may be—you're probably very familiar with this. It was a big national debate.

Under the court decision, this congressional action prohibiting speech—and not just any speech, and not just pornography. This is political speech close to the time when people are making decisions on elections.

The court decided that this congressional action prohibiting political speech was upheld under a First Amendment ostensibly designed to protect this, I would contend, form of political participation and speech.

And I looked at that. I voted on the McCain-Feingold law. I did not think there was any way the court would hold that this is constitutional, because you're limiting political free speech, and right when people are making their decision.

And one of the lead reasons or lead abilities we have in this country is to be able to criticize the government, and certainly at a point in time when it matters the most—right ahead of elections.

How do you square such a broad interpretation of the First Amendment in these cases and such a limitation on political free speech? Can you explain that to me?

ROBERTS: Well, Senator, I'm not sure that I can put the two together side by side and talk about it, other than to say that I think the court tends to address each case on its own terms.

And in the case of the bipartisan Campaign Reform Act, I do know that we're dealing there with an extraordinarily extensive record in that case. The judicial opinions addressing the issue before the three-judge district court I know went on for several hundred pages, just dealing with the records and the issues involved—the record that had been developed, including before Congress.

And my reading of the court's opinion in the bipartisan Campaign Reform Act case is that that was a case where the court decision was driven in large part by the record that had been compiled by Congress. I think the determination there was based—just reading the opinion; it's no great insight—that the extensive record carried a lot of weight with the justices.

Now, with respect to the other areas, again, I think the court would tend to look at those, sort of put the one case aside and then move on to the next case. And they're dealing there with developments in that area. And again, I…

BROWNBACK: Doesn't this strike you as odd, these two side by side under the same First Amendment?

ROBERTS: Only in the sense, Senator, that obviously they come out different ways.

And your point that the political speech is generally regarded as at the core of what the First Amendment was designed to protect and some of the other speech is not, I certainly appreciate that concern.

But whether, again, whether the particular cases were correctly decided or not is not something I feel it's appropriate for me to say.

BROWNBACK: I looked at those, and I just—this didn't make much sense. If you're going to read it expansively on the First Amendment, which I agree with, that should be consistently done.

Julian Sanchez made the same point here. Matt Welch celebrated senatorial insanity here. Brownback was for McCain Feingold before he was against it.

Clarification: Brownback did vote Nay on McCain-Feingold, as the above links (though maybe not the phrasing) will make clear.