Supreme Court Upholds the Right to Criticize Politicians


Depending on which account is correct, the Supreme Court has either struck down the Bipartisan Campaign Reform Act's restrictions on independent ads that mention federal candidates or ruled that the restrictions cannot be applied to three ads sponsored by Wisconsin Right to Life without violating the First Amendment. (The decision is not available online yet.) Either way, it's good news, since the attempt to squelch "sham" issue ads by prohibiting interest groups from running spots that refer to politicians close to elections had a clear impact on their ability to speak their minds on the issues that matter most to them at the times when people are paying the most attention.

discussed this case last fall. So did Nick Gillespie. Matt Welch, Jonathan Rauch, and Bradley Smith on BCRA, a.k.a. McCain-Feingold, herehere and here, respectively.

Update: A PDF of the decision is here. The main holding is that BCRA's ad restrictions are constitutional only insofar as they apply to "express advocacy" or its "functional equivalent." The Court concluded that Wisconsin Right to Life's ads, which urged people to contact their senators (including one who was up for re-election) about the confirmation of judicial nominees, did not constitute either. The majority said "a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." To put it another way, BCRA's pre-election blackout cannot be constitutionally applied to a spot that reasonably can be viewed as an issue ad, which means interest groups are once again free to engage in public policy debates on the air, no matter what time of year it is. 

NEXT: You Gotta Have Faith. No, Seriously, You Gotta.

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  1. I’m guessing we’ll hear about the bad news soon enough (the school speech one).

  2. Bipartisan Campaign Reform Act

    collusion, what?

    Heck, it’s not even collusion, by definition. They’re not even trying to conceal it anymore.

  3. Interesting breakdowns on the vote. Scalia, Thomas and Kennedy wanted to completely strike down McCain Feigold in its entirety. Roberts and Alito wanted to just strike down this piece of McCain Feingold. The liberal wing of Ginsburg, Stevens, Beyer, and Sueter of course never say a 1st Amendment political speech restriction they didn’t like and wanted to uphold the law. For all of the flack that Scalia and Thomas get, they at least beleive in political speech.

  4. It looks to me like all they’re saying is that the law shouldn’t be applied to these three ads. Anyone who attempts to broadcast or pay for future ads is still at risk of being held in violation of BCFR.

    I’m mystified as to why they bothered with it at all, since obviously the ads can’t be run now, and there’s no guarantee that other issue-ads will be protected.

  5. In other news, the Supreme Court upheld the right of federal employees to harass property owners with impunity until congress decides its baaaad.

  6. “I’m mystified as to why they bothered with it at all, since obviously the ads can’t be run now, and there’s no guarantee that other issue-ads will be protected.”

    I think Scalia and Thomas and Kennedy feel that way and that is why they wanted to scuttle the whole law. Why Alito and Roberts didn’t follow is beyond me.

  7. Lovely, we are now getting a first amendment exception for the drug war

    No “Bong Hits 4 Jesus”

    In a very divided ruling, the Supreme Court held today that a public school may punish a student for displaying an allegedly pro-drug banner (“Bong Hits 4 Jesus”). Chief Justice Roberts wrote the majority opinion.

  8. Once again,

    I look into my crystal ball and see Roberts, Alito, Kennedy, Thomas and Scalia.

  9. that last comment was directed at the BH4J post.

  10. Mmmmm, freedom parsing. It’s what’s for dinner!

    In the year 2031: You may express your views in this cone of silence, provided that no one else is in the cone with you. How did this come about? In 2015, the two major parties merged, finding no substantive difference in their love of big government and their hatred of liberties. The right made this happen in a landmark deal, where they traded an unfettered right to abortion for a ban on porn.

  11. John,

    I think Alito and especially Roberts are going to have two default postions.

    First, they will follow precedence as much as possible, no matter how bad the precedence is.

    Second, their default position will be to avoid constraing executive, government agency, or police power if at all possible.

    I suspect Thomas will remain the justice most friendly to libertarian philosophy.

  12. “I suspect Thomas will remain the justice most friendly to libertarian philosophy.”

    In this area, I think you are right. The idea that Thomas is some kind of authoritarian has been feed to people for so long, they really don’t bother to look at what he actually writes.

  13. I suspect that the test will come down to whether the ads plead that you “call your” politician or “vote against” your politician. I’ll bet that the next ad that gets tested that doesn’t say “call your [legislator]” loses this test.

  14. Okay, repeat after me, second amendment..libertarian militia, second amendment..libertarian militia, (repeat)
    is the one and only way to protect our rights.
    If you believe the federal government will protect our rights when it is the federal government violating your rights, then you are a moron.

  15. Terry, what did you have in mind with this militia? Start a separatist group in Idaho or something? Just curious if you could expand on those ideas a bit.

  16. JasonC,
    Sixty days before an election or thirty days before a primary, Reason runs ads against and for candidates on radio, TV, billboards, anywhere and everywhere.
    When the Feds come with the warrants, Reason calls out the militia.
    We surround Reason headquarters, which is now sandbagged up, with underground escape routes, gun turrents on the roof, the whole shebang.
    When the Feds announce to come out and leave the weapons and records behind and intact.
    We announce, “Fuck you” and “molon labe”.
    Jefferson, “The tree of liberty, from time to time, needs to be fertilized with the blood of tyrannts and partroits.”

  17. What if as a high-school student I wear a t-shirt that says [tiny letters] “Write your congressman to support [here come the big letters] bong hits 4 Jesus”?…

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