Radio Talk: Cheap or Valuable?

The Washington state Supreme Court heard arguments yesterday in a case that will decide whether talk radio hosts John Carlson and Kirby Wilbur, who yakked on the air in support of a ballot initiative (for a gas tax rollback) that they helped launch, needed to report the value of said yakking on KVI radio to the state's Public Disclosure Commission under state campaign finance reporing law.

An Institute for Justice summation of why citizens should be able to talk about political issues, even on the radio, without having to report it to the government, with links to other amicus briefs.

My favorite of my own writings on how campaign finance law can ruin the lives of those who choose to participate in politics.

The authors of the U.S. Constitution on this issue.

Comments

[Paul]

I knew the game was lost when "Progressives" deemed political speech to be subject to restrictions.

Oh, these guys are conservatives, so their speech: bad.

[Dave W.]

Here is one of the amici briefs supporting the talk radio hosts:

Third, [this amici] believes that public financing of political campaigns is the one truly effectiv and constitutionally acceptable
method for campaign finance reform. Instead of a futile and legally suspect attempt to limit some people?s speech, public financing would
enhance the ability of all people to present their views to the electorate. Instead of lowering the ceiling, public financing raises the floor. This model honors the goal of constitutional free speech guarantees, which is to
pursue ?more speech, not enforced silence.? Whitney v. California California, 274
, U.S. 357, 377, 47 S. Ct. 641, 71 L. Ed. 1095 (1927) (Brandeis, J., concurring).

Hard to argue with that!

[MP]

Public financing involves public taxation and governmental oversight of the distribution of funds to "eligible parties". "[this amici]" can suck on it.

[R C Dean]

"Public financing" (read: "involuntary financing") of campaigns does zero to address the alleged problems of private/voluntary financing unless said private/voluntary financing is outlawed.

The amici brief is not only completely off point, it is also utterly wrong.

[Paul]

Instead of a futile and legally suspect attempt to limit some people?s speech, public financing would
enhance the ability of all people to present their views to the electorate.

When the government is put in a place to decide whose campaigns are 'important' enough to fund, freedom is gone. Stick a fork in it, it's done. We don't want industries nationalized for obvious reasons, why would we ever accept our political campaigns to be nationalized? The horror.

[Clean Hands]

Oh, yeah, public financing of political campaigns works so well.

Okay, it does work exceptionally well at spending lots of taxpayer money supporting people with a truly disgusting habit of wanting to run other folks' lives...

[Dave W.]

Well maybe this amici (also in support of the hosts) is more to your liking:

"In this case the court below applied the FCPA to the pure speech of individuals communicated through the press facilities of a radio station. Such speech was deemed a ?contribution? in part because the medium of communication ? a radio broadcast ? had a supposed market value by which the resulting speech could be ?monetized? and hence treated as a financial or other measurable contribution rather than as simple speech per se. Such monetizing of pure speech because of its means of communication violates the Press Clause of the First Amendment by imposing restrictive justifications for the regulation of money, not applicable to ordinary individual speech, onto speech made through the press simply because of the different characteristics ? broad, effective reach and the potential for market pricing ? inherent to such channels."

I am not sure the Supreme Court of Washington will go for this. Instead of seeing this as "the pure speech of individuals communicated through the press facilities of a radio station" he might instead see it as "the pure speech of individuals amplified through the press facilities of a radio station." If the amplifier were a megaphone instead of a radio station, I think we all agree that the First Amendment issue goes away. the risk for CATO is that the Court may see the press facilities of the radio station as akin to a megaphone. Certainly nobody is suggesting that the hosts have to declare an inkind contribution when they utter the exact same pure speech standing on a street corner.

[Larry A]

Instead of a futile and legally suspect attempt to limit some people's speech, public financing would enhance the ability of all people to present their views to the electorate.

The only way this is true is if the government distributes the tax funds equally to "all people." Then ELF and KKK politicians get the same number of dollars as Republicans and Democrats. That would be one interesting political ad season.

Otherwise the government must decide which limited set of parties share the funds, and in what porportion. In practice the Dems and Reps split the pot and Greens and Libertarians get little or nothing. Which simply reinforces the present government rules limiting ballot access.

Realistically the only way the vast majority of people have to participate in the preelection debate is by contributing cash to candidates they favor, thus funding that candidate's publicity program.

It would seem that the only candidates inconvenienced by this process are the ones that can't find supporters.

[mitch]

This is the kind of thing that makes me go bonkers. Someone here (I think it was thoreau) went bonkers over Bush putting the National Guard on the border, and others have gone bonkers over phone taps and other anti-terror war or Iraq war measures, but this is the thing that gets me. It is possible that it will be illegal for someone to say on the radio that he supports or opposes some legislation, or the election of a representative. It is almost unbelievable to me that such laws could be voted for in the national legislature, signed by the president, and given the thumbs up by the Supreme Court. Every branch of government has let us down. It's like this really isn't the United States or something. Very, very sad, and very dispiriting.

[Dave W.]

The only way this is true is if the government distributes the tax funds equally to "all people." Then ELF and KKK politicians get the same number of dollars as Republicans and Democrats. That would be one interesting political ad season.

I don't think is how England does it.

[Phileleutherus Lipsiensis]

Public financing is a good way to reinforce the strenght those who are already in power.

[Paul]

had a supposed market value by which the resulting speech could be ?monetized? and hence treated as a financial or other measurable contribution rather than as simple speech per se. Such monetizing of pure speech because of its means of communication violates the Press Clause of the First Amendment

I find this interesting. I mean, don't get me wrong, I agree with the above statement exactly. But the supporters of campaign finance reform have (arguably and sadly) already smacked this argument down by the continued (and illogical) distancing of money from speech. Everytime a debate of campaign finance comes up, a supporter of the legislation will posit a convoluted argument about how money != speech by saying something like, "It's the money, stupid".

So, I guess money = speech when you don't like the speech, and money != speech when you don't like where the money came from? Is that how I'm to understand the argument for campaign finance laws?

[Paul]

Maybe it would be more accurate to say:

speech = money when you don't like the speech (shut down the speech), and money != speech when you don't like the contributor (shut down the contributor).

[R C Dean]

Certainly nobody is suggesting that the hosts have to declare an inkind contribution when they utter the exact same pure speech standing on a street corner.

If the only protected speech is speech that has not been distributed through the expenditure of any resources at all, then I would say we have pretty much arrived at the point where freedom of speech is gone.

[Creech]

Larry A is a bit optimistic, thinking the Libertarians and Greens would even get a little.
When the Presidential campaign was first instituted, the taxpayer could write in on the 1040 the name of the party to which he wanted his $1 to go. Me and not a few others wrote "Libertarian" but the IRS never sent dime
one to the LP. A year or two later, they ended the charade of letting the taxpayer pick which Party supposedly got the money.

[Dave W.]

If the only protected speech is speech that has not been distributed through the expenditure of any resources at all, then I would say we have pretty much arrived at the point where freedom of speech is gone.

True that. Maybe First Amendment judges will blaze a middle path. Maybe they will set up sort of a sliding scale where the degree of resources expended on the channel (actually or constructively) is positively correlated with the amount of permissible restriction.

That way you could say whatever you wanted on a street corner, but were subject to increasing restriction as the channel becomes costlier, and presumably a more dominant part of the speech/channel balance. That would give the courts (and legislature) a way to legally separate the big bloggers from the little bloggers so that we all aren't in the same boat on this stuf.

We need that Benkler dude to get us fully sorted. My knowledge in communications theory is limited.

[Dave W.]

Think of it this way: can u imagine how much more chance the Libertarian candidate would have in an election with no big media, not tv, not am, not hi traffic sites, not newspapers, nada. People getting their opinions only by talking to each other by street corners, and maybe, if we are generous, by email and telephone. What a wonderful world that would be! What a glorious time to be free.

[Dave W.]

Diebold machines to make big decisions
Programmed by fellows with compassion and vision
Well be clean when their speech is free
Well be semantically "free" yes and eternally fucked

[Dave W.]

Lost the appostrophe in the cut and paste. *darn*

[Phileleutherus Lipsiensis]

Let's note that the comments in question were about a ballot measure, not about a candidate.

[Phileleutherus Lipsiensis]

The beauty of the things that Dave W., etc. advocate is that they are readily amenable to protest via civil disobedience.

[Paul]

Maybe First Amendment judges will blaze a middle path.

There's nothing I love more than judges taking the 'middle ground' on our basic constitutional rights.

[Phileleutherus Lipsiensis]

With the current Supreme Court we have, much of the CF"R" laws are sure to be struck down. Maybe something good will come out of the Bush administration (besides tax cuts and a few other things) after all.

[Paul]

With the current Supreme Court we have, much of the CF"R" laws are sure to be struck down. Maybe something good will come out of the Bush administration (besides tax cuts and a few other things) after all.

I'm not confident, especially when Bush signed campaign finance reform, when it could have been his one and only veto.

[joshua corning]

hey reason,

be sure to post here which judges vote in favor of restricting political speech...in washington we vote for judges and i would like to vote against those particular ones.

[crimethink]

PL,

How can the Bush admin get credit for getting rid of CFR, when he signed the bill that put it in place?

[Phileleutherus Lipsiensis]

crimethink,

Admittedly it would be indirect credit.

[Robert]

"Public financing" (read: "involuntary financing") of campaigns does zero to address the alleged problems of private/voluntary financing unless said private/voluntary financing is outlawed.

Or, as I've written here before, unless the publicly financed/provided advertising is so massive that privately/voluntarily provided advertising becomes a spit in the ocean. And about the only practical way to do that fairly is to commandeer broadcasting stations and cable channels for large blocks of prime time for considerable periods prior to elections for anyone who wants to run for office, as well as to provide free mail delivery and printing. Many jurisdictions (such as New York City) already print & mail an election brochure to all voters with statements & photos provided by the candidates, treating all candidates equally.

[Dave W.]

I don't think any of this would be such a big problem if the media were as decentralized and deconsolidated* as when the First Amendment was written.

A radical forced deconsolidation of the media (sorry, Matt W.) would be the best way to handle the problem. Would bring us right back into the scope of the original intent (one of my favorite Consitutional touchstones).

If I were the judge I would have looked at whether this was a Clear Channel station and fashioned by First Amendment analysis around that fact (if true).

[Dave W.]

FOOTNOTE FROM PREVIOUS
Franklin's printing franchise notwithstanding.