Civil Liberties

Does Free Association Limit Free Speech?

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SpeechNow.org is a "nonpartisan independent speech group that supports free speech and associational rights." It is not a corporation (not even the nonprofit sort). It does not take money from corporations or from labor unions. It does not give any money to politicians. It is not affiliated with any party or candidate, and it does not coordinate its activities with any political campaigns. But it does want to publicly criticize politicians who attack freedom of speech and publicly praise politicians who support freedom of speech, pooling the resources of its members to purchase TV and radio ads for that purpose. Is SpeechNow.org therefore a "political committee," legally required to register as such and to decline donations that exceed statutory limits? Or is it a group of Americans exercising their First Amendment rights? Separately, they would be free to spend as much as they wanted on independent advocacy, condemning and lauding public officials at will. Should the fact that they choose to join together, exercising their freedom of association, trigger speech limits that otherwise would be clearly unconstitutional?

Those are the questions that SpeechNow.org, through lawyers from the Institute for Justice and the Center for Competitive Politics, has posed to the Federal Election Commission. Bob Bauer, a campaign law expert and prominent critic of the current system, calls it "one of the more important and consequential requests put before the FEC in a long time." He notes that "SpeechNow.org returns to the middle of the debate over campaign finance the right of association, which has been left by the side of the road, to wither, for years."

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  1. Separately, they would be free to spend as much as they wanted on independent advocacy, condemning and lauding public officials at will. Should the fact that they choose to join together, exercising their freedom of association, trigger speech limits that otherwise would be clearly unconstitutional?

    Sort of like requiring permits for parades or protests in a public park, when each individual would have been allowed to carry a sign and sing “The Times They Are A-Changing” on their own, but when the join together in an organized fashion, they become subject to greater regulation.

  2. But joe, that permit is required because they are in a public space. If you want to have a parade on your 4,000 acre ranch, you don’t need a permit (I don’t think so, at least). So I don’t think that analogy works.

  3. It’s true that you can have a parade on your own property without a permit, but if you’d like to smoke a cigarette while parading, well, that’s another story.

  4. Episiarch,

    The individuals would be in a public space, too, and not require a permit. So, once again, it IS the “exercise of their right to free association,” and being in public, that triggers the regulatory requirement.

    And let’s keep in mind, by incorporating in some manner to take advantage of the public-policy benefits that accrue to incorporated bodies.

  5. ooh. that kind of free association.

    For a second, I got all Gestalt and began yelling at the chair.

    AGF would know what I mean…

  6. The solution is obvious. Repeal ALL campaighn finance laes and abolish the FEC. If the bakers guild wants to get together and support graham flour by calling out or praising politicians on their graham flour stances, let ’em. And any other organization that is not a nonprofit.

  7. Maybe I’m obtuse today, joe, but I totally don’t understand your last comment. Could you clarify?

  8. joe,

    The licensing of parades etc is necessary because physical space is a zero sum resource. Two people cannot co-occupy the same space no matter how mutually aroused they are. On public property, the state must arbitrate who gets to use any particular space at anyone time.

    Communication is non-zero sum. In the internet age, a functionally infinite number of people can issue communications about the same subject without interfering with the communications of others. In this case, no one needs the state to intervene to allocate the resource.

  9. joe,

    And let’s keep in mind, by incorporating in some manner to take advantage of the public-policy benefits that accrue to incorporated bodies.

    But in this particular example there is no legal incorporation. That is point of contention. If the state enforces the incorporation and provides privileges thereby to the incorporated then it might have a right to regulate the conduct of the corporation.

    In this case, the state provides no benefit, incurs no cost and therefor has no say in what the informal corporation does.

  10. Agreed with J sub D. And abolish the FCC too, while you’re at it. If folks want to pool resources to buy airtime or netspace to espouse their views, let ’em. Don’t like it? Change the channel.

  11. Communication is non-zero sum. In the internet age, a functionally infinite number of people can issue communications about the same subject without interfering with the communications of others.

    Not if you look at both ends of the process. People’s att’n is limited, so the att’n you pay to one is att’n you can’t pay to someone else’s communic’n.

  12. Nicely done VM.

  13. Robert,

    People’s att’n is limited, so the att’n you pay to one is att’n you can’t pay to someone else’s communic’n.

    Yes, but what I pay attention to does not materially effect what you pay attention to. My attention isn’t a resource that someone else gets to divvy up.

    More to the point, there is an natural right to speak. There is not a natural right to have an involuntary audience.

  14. but when the join together in an organized fashion, they become subject to greater regulation.

    joe, you have got to be fucking kidding me. Ever heard of free assembly and association? Yeah, it’s in that there Constitution. Check on the roll next to your toilet.
    What makes it necessary to “regulate” a group of individuals just because they join together? Voluntarily? On their own time and with their own resources?
    When my family gets together and talks politics, are we subject to “greater regulation”?
    This is the most naked example of the tyranny of so-called “campaign finance reform,” and you’re going to defend it.
    Big fucking surprise.

  15. From the speechnow.org Web site:

    Free speech is so important, it’s the First Amendment to our Constitution. Speech Now.org believes current laws and Court decisions recognize a free speech zone, an area where citizens can assemble for an ideological purpose and have the freedom to speak to their fellow citizens about candidates.

    We will use this free speech zone to give new life to the First Amendment by working to liberate speech for other groups.

    Politicians have hijacked our First Amendment rights to suppress political speech. And for what? Their personal benefit, to insulate themselves from criticism.

    What part of that do you have a problem with, joe?

  16. Episiarch,

    Ignore the last half-sentence of my comment. The part about the public space is the gist of it.

  17. Shannon,

    Let’s stick with the issue of the role associating plays in free speech, and not get into whether regulating campaign finance makes sense.

    Jamie Kelly,

    Take it up with the city of your choice, because permits for parades and protests are the law of the land throughtout the country.

    Oh, wait, you didn’t realize that the comment you quoted was about parade permits? You didn’t realize that I was describing the current state of the law, and not making a statement about the ideal form of governance? You completely misread what I wrote, in order to get a nice rush of adrenaline from a deluded sense of moral and intellectual superioty? Gee what a fucking surpirse.

    Maybe you should either learn to read, learn to think, or stop being such an hysteric. You are less useful on these threads than the people who deliberately troll.

  18. The McCain/Feingold Campain Reform Act Incumbent Protection Act needs to be repealed. Some things are beyond repair, you just throw them on the trashheap. John McCain still feels guilty about the Keating five thing, and Russell Feingold is just to the right of Stalin.

  19. Shannon,

    On the question of group vs. individual behavior, “1000 people in the street singing songs and a-carrying signs” take up exactly the same space whether they are acting in a coordinated fashion or not.

    So your point doesn’t really get at the question.

  20. That is point of contention. If the state enforces the incorporation and provides privileges thereby to the incorporated then it might have a right to regulate the conduct of the corporation.

    Everybody must incorporate. From the Harley Club to the Girl Sprouts to the Little League. Isn’t that how it works in modern America? Not that I agree, but I was under the impression that you can’t be a group without being a corporation.

  21. Howl howl wail gnash gnash growl yelp!

    Goddamn fucking cocksucker what the fuck is wrong with you?

    Can’t you fucking read?!?

    How DARE you not agree with me about politics?

    fuck fuck fuck fuck fuckkity fuck fuck.

  22. Sort of like requiring permits for parades or protests in a public park, when each individual would have been allowed to carry a sign and sing “The Times They Are A-Changing” on their own, but when the join together in an organized fashion, they become subject to greater regulation.

    joe, maybe you can be a little more clear.

    What is your point? That speech by link-minded groups of people should be regulated in the same way that parades are regulated?

    It seemed like you were drawing a parallel there. But surely you agree that the reason that parades and such require permits are for the reasons that Shannon Love offered above:

    The licensing of parades etc is necessary because physical space is a zero sum resource. Two people cannot co-occupy the same space no matter how mutually aroused they are. On public property, the state must arbitrate who gets to use any particular space at anyone time.

    That rationale doesn’t really apply to say internet speech or other formed of broadcast speech via a medium like TV or radio or whatever.

  23. Not if you look at both ends of the process. People’s att’n is limited, so the att’n you pay to one is att’n you can’t pay to someone else’s communic’n.

    Shut Up!

    Go away!

    I’m Batin’.

    Shut Up!

  24. Take it up with the city of your choice, because permits for parades and protests are the law of the land throughtout the country.

    yeah, but we’re not talking about a parade or protest, which are “permitted” in order to keep public order — JOE.
    We’re talking about a collection of individuals — JOE — that simply want to criticize or praise public officials they deem to either squelch or defend free speech — JOE.
    This is not a fucking parade — JOE.
    Got it — JOE?

  25. Yes, Jamie, in the quote I made, and which you copied and used as a launching point for your little tirade, we WERE talking about parade permmits.

    Here, let me quote it for you, Einstein:

    Sort of like requiring permits for parades or protests in a public park, when each individual would have been allowed to carry a sign and sing “The Times They Are A-Changing” on their own, but when the join together in an organized fashion, they become subject to greater regulation.

    You see that part right before the bit you quoted, JAMIE? How about you wash down a enough valium to stop the demon voices for a moment, and see if you can figure out what the subject of that paragraph is?

  26. joe, if I take a day off work (without pay) to campaign for Ron Paul, is that an in-kind contribution subject to regulations? Six Months? surely that’s worth more than $2300, even at minimum wage. Or am I just exercising my first amendment rights. Better yet, how about I support him on the radio show I host? Is that an in-kind contribution? Or just me exercising my first amendment rights?

  27. Chicago Tom,

    I’m not actually talking about whether campaign donations should be regulated. (Let’s keep that in mind here. This isn’t about regulating speech. It’s about regulating commerce.)

    My comment was about the subject Bailey raised – the justification for regulating the actions of groups more stringently than individuals.

  28. J sub D,

    I’m the wrong guy to try that ploy on, since I don’t subscribe the looney-libertarian theory that one does with one’s person is best understood in terms of its financial value.

    It is you exercising your first amendment rights, because you are actually a person with those rights, and you are actually engaging in speech.

  29. So what’s your point about parade permits anyway — JOE?
    Only an intellectually bankrupt person (douchebag, asshead) like you could confuse a parade with constitutionally guaranteed political activism.

    Joe’s universe:
    “Hi, I have a political opinion.”
    “Me too! Want to join together to advocate our position?”
    “Sure!”
    REGULATE THOSE FUCKERS!


  30. I’m not actually talking about whether campaign donations should be regulated.

    I thought this thread was about regulating the speech of a group of associated individuals who donate to speechnow.org.

    Donating to speechnow.org is not a campaign donation. It is an advocacy group, kind of like the ACLU or the NRA.

    My comment was about the subject Bailey raised – the justification for regulating the actions of groups more stringently than individuals.

    By my reading, Baily seemed to be raising the question about regulating the speech of groups more stringently than individuals. Groups that in this case aren’t at all affiliated with Campaigns.

    Why should a group like that have any restrictions on it’s speech?

  31. Sort of like requiring permits for parades or protests in a public park, when each individual would have been allowed to carry a sign and sing “The Times They Are A-Changing” on their own, but when the join together in an organized fashion, they become subject to greater regulation.

    Except that the issuance of permits is required to be content-neutral. The distinction between electorally orientated speech and non-electorally orientated speech that campaign finance regulations make could not be applied to permits under current court precidents. Haberdashers for Huckabee would have to be given the same terms of access as the Non-partisan Numerologists when applying for permits.

    Try again joe.

  32. I can’t tell yet if joe is advocating restrictions on groups, or merely presenting what he feels is governmental justification for such restrictions.

    joe, is it the former or the latter?

  33. joe, is it the former or the latter?

    Episiarch, look deep into YOUR SELF. You know the answer.
    Sorry about the lame “Silence of the Lambs” reference.

  34. Chicago Tom,

    Ah, that must be where you got confused.

    No, this thread is about regulating how Speech Now handles donations.

    Matt XIV,

    Except that the issuance of permits is required to be content-neutral. And also, parade permits are provided at the muncipal level, while the FEC is a federal agency. That’s where the phrase “sort of like” comes in. In common English, that phrase is used to denote that two circumstances have some similarities, but are not precisely identical.

    Glad I could clear that up for you.

  35. I’m the wrong guy to try that ploy on, since I don’t subscribe the looney-libertarian theory that one does with one’s person is best understood in terms of its financial value.

    It is you exercising your first amendment rights, because you are actually a person with those rights, and you are actually engaging in speech.

    Cool, so if I print up say 5,000,000 pamphlets promoting the Ron Paul campaign for president, am i actually engaging in my first amendment rights regarding freedom of the press?

  36. Episiarch,

    The latter. My comment was about the state of the law.

    But hey, at least you asked, so you’re way ahead of the game.

  37. J sub D,

    The labor of printing up those items would be a first-amendment speech act. The handing out of the donations would be a speech act.

    The purchase of paper, ink, and materials would not be a speech act, but a commercial transaction. If you hired somebody to print them up or hand them out for you, that would be a commercial transaction, not a speech act. If someone sent you a check to hire somebody, or even to defray your own costs, or to pay for your labor, that would be a commercial transaction.

    Is this distinction becoming any clearer to you?

  38. No, this thread is about regulating how Speech Now handles donations.

    I think this thread is actually about whether or not anyone should be regulating how speechnow handles donations.

    Why should there be any regulating of speechnow’s donations ? What is the distintion between me putting up a site (or buying ads), or me and group of like minded people doing the same thing?

  39. joe, it’s just this pesky little law that was passed a long time ago –

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [My emphasis]

    What part of this do you, McCain, Feingold, SCOTUS, et al find that is so fucking open to interpretation? It boggles the rational mind.

  40. Close the bold.

  41. joe, like most liberals, is under the delusion that free speech cannot involve commerce, and vice-versa, that putting your money where your mouth is triggers some sort of necessary regulatory mechanism, and that buying an audience somehow corrupts the First Amendment.

  42. The purchase of paper, ink, and materials would not be a speech act, but a commercial transaction.

    You’re right joe. Wait, I have a revolutionary thought, that might be considered an actof “the press”. Shame the 1st amendment doesn’t cover that as well.

    Oh, upon further review, it does.

    Dig deeper, joe. There’s gold down there somewhere.

  43. joe:
    Money is speech.
    Know it. Learn it. Live it.

  44. If I can’t use a politician’s name in an ad X number of days prior to an election, why am I allowed to use a ballplayers name in an ad right up to, even during, the World Series? Are politicians more important, or more sensitive, than Barry Bonds and Derek Jeter?

    Just askin’.

  45. J sub D:
    Politicians are our masters, and they deserve our unflagging respect and devotion.
    Criticizing them so close to an election is not only mean and insensitive, it’s goddamn unpatriotic.

  46. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    What part of this do you, McCain, Feingold, SCOTUS, et al find that is so fucking open to interpretation? It boggles the rational mind.

    I’m surprised you don’t know this…

    “The people” are actually the state militias. And they are supposed to be “well regulated”.

    Q.E.D.

  47. J sub D,

    Perhaps someone who doesn’t yet realize that the words “money” and “donations” and “purchases” don’t appear in the First Amendment should avoid lecturing those of us who are literate about its meaning.

    I guess your answer is, “No, I still can’t figure out the difference between money and speech.”

  48. joe, like most liberals, is under the delusion that free speech cannot involve commerce, and vice-versa, that putting your money where your mouth is triggers some sort of necessary regulatory mechanism, and that buying an audience somehow corrupts the First Amendment.

    Nope, that’s not the distinction, either. A play that charges for admission is still a speech act.

    That’s because it actually carries and conveys a message. Sending someone a check does not.

  49. [quote]The purchase of paper, ink, and materials would not be a speech act, but a commercial transaction.[/quote]

    if only it were that cut and dried.

  50. joe:
    Try printing up a flyer advocating the position you just put forth without money.
    Try posting on Hit & Run without spending any time or resources.
    So money isn’t speech, huh? I guess the only way the First Amendment applies in your little world is when you scream something as loud as you can from your living room when you have nothing better to do.

  51. Wait, I have a revolutionary thought, that might be considered an actof “the press”.

    Sigh. Must be patient with the little children. They don’t know any better.

    Dearie, priting the handbills up on the press is a speech act. Purchasing ink is not.

    Ergo, regulations on purchasing ink (or collecting money to purchase ink) do not violate the First Amendment UNLESS they prevent you from exercising your speech or press rights.

  52. I could buy a few hundred trailers and park them so that they spell out “Vote Bush” – that doesn’t make the safety regulations on truck trailers a violation of the First Amendment.

    If there were no income taxes, I could afford to buy even more semi-trailers. AND YET, the income tax doesn’t violate the First Amendment, either.

  53. guess the only way the First Amendment applies in your little world is when you scream something as loud as you can from your living room when you have nothing better to do.

    Oh heavens no! You had to buy food to have energy to scream that, and buying food is an act of commerce!

  54. Purchasing ink is not.

    So what if the government forbids you to use that ink, joe? What if the government, say, refuses to allow you to use your purchased airtime to say what you want?
    Money = ownership = private property = exlusivity of use.
    Ergo, purchasing ink is most definitely an act of free speech.
    Try again.

  55. Does the joe who posts on campaign regulation threads have a beard while the one who comments on immigration and trade threads not have a beard?

  56. So what if the government forbids you to use that ink, joe? What if the government, say, refuses to allow you to use your purchased airtime to say what you want?

    THAT would be a intrusion into free speech.

    Money = ownership = private property = exlusivity of use.
    Ergo, purchasing ink is most definitely an act of free speech.

    LoL. It’s like watching a toddler trying to dress up like Daddy!

    That’s some terrific logic there, Jamie.

  57. THAT would be a intrusion into free speech.

    Good. Dumbfuck monkeys can be taught.
    Now, McCain-Feingold.
    Go.

  58. I think that the question here has been overlooked/deflected.

    Here we go:

    If I as one person, un-incorporated, have free speech rights, does a group of my friends, also un-incorporated, have free speech rights?

  59. Please keep in mind that the group “… is not a corporation (not even the nonprofit sort). It does not take money from corporations or from labor unions. It does not give any money to politicians. It is not affiliated with any party or candidate, and it does not coordinate its activities with any political campaigns. But it does want to publicly criticize politicians who attack freedom of speech and publicly praise politicians who support freedom of speech, pooling the resources of its members to purchase TV and radio ads for that purpose.”

  60. See, let me make this easy:

    Forbids you to use the ink – violation of free speech.

    Forbids you to buy the ink – violation of free speech.

    Limits the size of checks people mail to you – not a violation of free speech.

    Two of these things prevent you from printing up handbills. One does not. Is figuring out which one really that much of a mystery?

  61. Why would Freedom of Speech be denied to this group?

  62. Does the joe who posts on campaign regulation threads have a beard while the one who comments on immigration and trade threads not have a beard?

    No, it’s the same one. Except he’s in his mother’s leather hose, doing the penis tuck.

  63. If I own a printing press, and someone wants to pay me to print handbills, why should that be regulated? What of freedom of the press?

  64. Two of these things prevent you from printing up handbills. One does not. Is figuring out which one really that much of a mystery?

    The third limits the number of handbills. Therefore, it violates your free speech rights.
    Is that so hard to figure out, penis-tucker?

  65. Well, whatever the merits of these First Amendment arguments, what has been the actual effectiveness of CFR? Has it reached any of the stated goals which it started out with in the 1970s?

  66. Furthermore, what sort of negative unintended consequences has it fostered?

  67. joe,

    Ergo, regulations on purchasing ink (or collecting money to purchase ink) do not violate the First Amendment UNLESS they prevent you from exercising your speech or press rights.

    You still haven’t explained why the state has any compelling justification for interfering in the collective actions of private citizens which do not materially interfere with the rights anyone else and who do not seek any protection from the state.

    If five friends pool their funds to buy ink, paper etc. who cares? If five million do so, who cares? Why can’t they just be left alone? Why drag the state and its inherent violent nature into the matter at all?

    You would do well to remember that corporations and other forms of voluntary cooperative organization existed long before governments noticed them and got involved in the process. You haven’t provided a compelling reason why state can interfere in such a relationship without being ask to do so by the people involved in the first place.

  68. Jamie, if we could be civil with one another, this would be a lot more interesting for people other than you and joe.

  69. what has been the actual effectiveness of CFR?

    If the idea was to shut off debate, shield politicians from criticism, and trample on the First Amendment, oh I’d say it’s been quite effective.

  70. Sigh. Must be patient with the little children. They don’t know any better.

    Dearie, priting the handbills up on the press is a speech act. Purchasing ink is not.

    So, the NY Times shouldn’t be able to endorse candidates without complying with FEC regulations? An association, buying ink, paper, even paying peoople to distribute it should feel the whole weight of the FEC’s authority, right? I mean, you’ve thought this through so completely.

    How/why is the newspaper different?

    Found any gold down there yet? Or just pyrite?

    joe, I had hoped knew that you and I agreeing on things wouldn’t last. 😉

  71. Jamie, if we could be civil with one another, this would be a lot more interesting for people other than you and joe.

    But Dangerman, joe is such a smarmy little pile of fuc — oh, never mind. He’s good people.
    You’re good people, joe.

  72. Shannon Love,

    Corporations have always had some sort of government involvement or they have been government like entities themselves.

  73. Cara:
    Corporations were CREATED by the U.S. government. You’re aware of that, correct?

  74. Jamie: I understand that you are frustrated. But that’s what you get for arguing on the Internet. If you start out by thinking that all people can be brought to your viewpoint, you will be disappointed every time. Solipsism is dangerous.

  75. joe,

    But the content neutrality distinction is generally applicable to determining the constitutionality of regulations on speech and immediately relevant to the matter at hand. Generally, a law that limits speech needs to applicable regardless of the content of the speech in question. Treating aggregations for the purpose of political speech differently than aggregations for the purpose of non-political speech definitely violates content neutrality.

    Right now the state of the issue in the courts with regards to electoral speech is that the protections are being gutted by a “compelling state interest” exception drawn around the line between issue advocacy and the advocacy of the election or defeat of particular candidates based on an overstreached argument about “functional equivalency” between advocating for the election or defeat of a candidate or slate of candidates independent of the campaign itself and contributing to the campaign itself. So unless you think contributing to SpeechNow.Org should be considered to be functionally equivalent to contributing to a campaign or party, it shouldn’t fall under the purview of campaign finance regulations.

  76. Dangerman, I think Joe pretty much hijacked the thread. He is a very effective troll sometimes. I bet 95% of the responses are people arguing with Joe’s straw men arguments.

  77. Yeah, Jamie, I am SO much better at arguing with joe than you are. NEENER NEENER

  78. Jeez, Bob. I guess why that’s why my first post was “I think that the question here has been overlooked/deflected.”

    I can’t even hate trolls anymore, because it is obvious how they get their kicks, and how they will operate. What pisses me off is people who KNOW that he is a troll, and treat him like he is being rational. If he puts up a straw man, IGNORE IT and continue to debate legitimate issues.

  79. If there isn’t anyone who wants to either discuss the topic, or make us pee ourselves with their wit, then we are all better off making new LOLCATZ.

  80. Episiarch,
    don’t I know it. You’re my homie.

  81. If he puts up a straw man, IGNORE IT and continue to debate legitimate issues.

    You know the law: Two straw men enter. One straw man leaves.

  82. Jeez, Bob. I guess why that’s why my first post was “I think that the question here has been overlooked/deflected.”

    I was just agreeing with you is all.

  83. Two people cannot co-occupy the same space no matter how mutually aroused they are.

    This isn’t a pr0n thread, Shannon.

  84. Two people cannot co-occupy the same space no matter how mutually aroused they are.

    Except that one little place.

  85. “…that doesn’t make the safety regulations on truck trailers a violation of the First Amendment.”

    “Limits the size of checks people mail to you – not a violation of free speech.”

    joe, presumably the regulations that would prevent you from using trucks in that way have some purpose to justify them beyond limiting speech, i.e. creating a hazard or a nuisance. The purpose beyond limiting speech of limiting the size of checks to a group like SpeechNow is…what?

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