Political Speech, Freed

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“Right now in First Amendment jurisprudence,” Bradley A. Smith observed in the December 2005 reason, “there is more protection for simulated child pornography, flag burning, tobacco advertising, or burning a cross in an African-American residential neighborhood than there is for running an advertisement that merely mentions a congressman’s name within 60 days of an election.” Smith, a Capital University law professor who had recently resigned as chairman of the Federal Election Commission, argued that incumbent politicians were using campaign finance regulations such as those imposed by the Bipartisan Campaign Reform Act, a.k.a. McCain-Feingold, to rig the game against critics and challengers.

In January the U.S. Supreme Court helped level the playing field by overturning McCain-Feingold’s ban on “electioneering communications,” defined as TV or radio messages sponsored by corporations or labor unions that mention a candidate for federal office and that run within 30 days of a primary or 60 days of a general election. The Court said the ban violated the First Amendment rights of Citizens United, a conservative group, by blocking its plans to advertise and distribute an unflattering documentary about Hillary Clinton in 2008, when she was seeking the Democratic presidential nomination. The decision also overturned an older rule that prohibited corporations, including nonprofit interest groups such as Citizens United, from explicitly supporting a candidate’s election or defeat.

In rejecting those restrictions, the Court reversed a 1990 ruling that had upheld a state ban on corporate campaign spending, based on the government’s interest in preventing “the corrosive and distorting effects of immense aggregations of wealth.” Writing for the majority, Justice Anthony Kennedy noted that the same rationale would allow the government to gag wealthy individuals and media outlets owned by corporations. “We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers,” he wrote. “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”