To be fair, the film does amount to partisan advocacy. It's a scorching indictment of the former Democratic presidential front-runner, produced by an unapologetically conservative outfit. It's as one-sided as a MoveOn.org-produced documentary about George W. Bush would be. But, some might wonder, should partisan advocacy ever be illegal in a democracy?
Several justices asked the deputy solicitor general, Malcolm Stewart, if there would be any constitutional reason why the ban on documentaries and ads couldn't be extended to books carrying similar messages. Stewart, speaking for a president who once taught constitutional law, said Congress can ban books "if the book contained the functional equivalent of express advocacy" for a candidate and was supported, even slightly, with corporate money. Such advocacy, Stewart conceded, could amount to negatively mentioning a politician just once in a 500-page book put out by a mainstream publisher.
Virtually every newspaper in America is owned by a corporation; does that mean they can't endorse candidates anymore? To even ask such a question as if it were reasonable shows how close to the heart of our democracy the poison has reached.
When the myth that the Patriot Act targeted libraries -- it didn't -- was all the rage, liberals manned the parapets. When some citizens -- not government officials -- destroyed Dixie Chicks CDs, the collective response from liberals was to channel Martin Niemoller: "first they came for the Dixie Chicks ..." New York Times columnist Paul Krugman compared it to Kristallnacht. When then-White House Press Secretary Ari Fleischer made the off-the-cuff suggestion -- in response to some unfunny idiocy from Bill Maher (and a bigoted comment from a Republican congressman) -- that Americans needed to "watch what they say," Rich (again) concluded that Fleischer's comment was as significant for our domestic freedom as 9/11 itself.
But when the Obama administration approves the constitutionality of banning politically relevant books before the Supreme Court, where's the outrage? Yes, there are some sober, responsible editorials. But the soapboxes stand unmanned by the self-appointed paragons of freedom.
But perhaps they're right to be silent. It's not as if anyone is trying to ban Hustler.