John Fund

First Amendment scholars tell me that if the Supreme Court had upheld Judge Wickham's ruling, it would have had a chilling effect on talk and news shows across America. And what would have been next? A judge ordering a newspaper to determine a monetary value for an editorial endorsement? In Parker North, Colo., residents who are fighting an annexation move are being sued merely for putting up yard signs and passing out flyers without registering these "contributions" with state election officials.

Washington's largely liberal Supreme Court agreed that political free speech was jeopardized by the attempt to regulate media outlets under campaign finance laws. Writing in concurrence, Justice Jim Johnson noted, "Today we are confronted with an example of abusive prosecution by several local governments. . . . This litigation was actually for the purpose of restricting or silencing political opponents." The court took the unusual step of sending the case back to the trial court to determine the nature of any constitutional violations the prosecutors who brought the case committed and whether the Initiative 912 supporters have a right to collect attorneys' fee from the local governments who sued them.

Also last week, the U.S. Supreme Court heard arguments in a case involving a Wisconsin pro-life group that ran afoul of McCain-Feingold restrictions on ads run by advocacy groups within 60 days of an election. Court observers believe the oral arguments went well for those challenging the law, and there is cautious optimism the court will pare back its pro-regulatory view of political speech. Certainly, the Supreme Court justices would benefit from a close reading of the Washington state court's decision.

Those in the media who support campaign regulations such as McCain-Feingold, believing that their own free speech is safe, could stand to read the decision too. The zealous pursuit of Messrs. Carlson and Wilbur showed how overreaching government officials can use such laws to intimidate the media into silence. One can only imagine how the media cheerleaders of McCain-Feingold would have reacted if they had been ordered to estimate a value for their all-out efforts to promote the legislation and were then faced with restrictions on their own speech.


John Fund

John Fund writes the weekly "On the Trail" column, reprinted here with permission from the Wall Street Journal and OpinionJournal.com. He is author of "Stealing Elections: How Voter Fraud Threatens Our Democracy" (Encounter, 2004).

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