Freedom of speech

Whenever a constitutional matter comes before the public, people are fond of citing the relevant amendment, as if the words alone will resolve the conflict so many legal minds have failed to understand. This is a favorite tactic of George Will, especially when it comes to McCain-Feingold campaign finance reform. He will say, very slowly, that “Congress-shall-make-no-law. . . It’s as a plain as day, only a communist moron could not see that.” Today’s version of that argument comes from Robert Samuelson. True to the tradition, he writes:

>”Congress shall make no law. . . 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.”

>The Fourth of July is an apt moment to reflect on one of the great underreported stories of our time: the rise of speech regulation. Glance at the First Amendment, but do not think it still applies. Large bodies of political speech are now governed by laws, agency regulations, court decisions and lawyerly interpretations. Speech has become unfree.

>This does not mean that we don’t have vigorous debate or that most points of view aren’t represented. But in and around elections, what can be said, by whom and under what circumstances, is now a tangled web of legal qualifications — all justified as campaign finance “reform.”

>As proof, consider the Supreme Court’s recent decision in Federal Election Commission v. Wisconsin Right to Life Inc. Don’t try to understand it; you won’t. That’s the point. What’s permissible or impermissible speech is now murky. Plain political speech has mushroomed into many subcategories — “issue speech,” “electioneering communications,” “express advocacy” and “nonexpress advocacy,” among others. Different legal standards apply.

He goes on to point out (correctly, we imagine) some of the myriad practical difficulties of regulating “political” speech according to the parameters of McCain-Feingold. Indeed, McCain-Feingold may be a dumb law.

But it’s not dumb because of some obvious contradiction with the first amendment or because it confuses what was not confused before. A quick glance at constitutional history will reveal many cases in which the notion of “speech” has been expanded (or contracted) either in virtue of its content, its location, or more fundamentally, the person or entity doing the speaking. Simple, seemingly absolute rules such as the amendments to the Constitution, invite all sorts of challenges and raise all sorts of legitimate questions about what, where, when, why, and who.

Obscenity anyone? Is that speech? How come it can be regulated?

So, while the McCain-Feingold law may–I say may–have been sloppily written. It’s not wrong simply because it abridges political speech. Whatever is left of the integrity of our political process deserves more mature consideration than this.

2 thoughts on “Freedom of speech”

  1. The nifty little move that Will and others who attack campaign finance make is that they take “freedom of speech” and make it only about speaking, not about the freedom to be heard. The question here is a variant of the proverbial tree falling in the forest. What Will defends here is the right for heavily moneyed interests to not only dominate the discourse, but to make sure that all political conversations of any real effect are held in a place that is inaccessible to the vast majority of the electorate. I have the absolute right to say whatever I want in the forest where no one is listening, but I do NOT have the right to be heard, to make my speech actually politically meaningful.

  2. That’s right SteveG. That’s just one of the many senses of freedom being ignored in the campaign finance debate. One of them, perhaps the most important one, concerns how rights granted to individuals extend to corporations. As you suggest, corporations get considered by the likes of Will to be individuals, but I hardly think the founding fathers had contemplated the participation of multi-national corporations in our electoral process. Their ability to speak and especially control speech through media ownership or domination in advertising substantially alters the basic question of freedom of speech.

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