Two events sparked renewed hope this week that Americans might again freely criticize their government. It would be ever so nice were the First Amendment to come back into full force.
In Washington, D.C., the Supreme Court heard oral arguments in Federal Election Commission v. Wisconsin Right to Life. From the questioning, and the addition of Justices Roberts and Alito to the High Court, it seems quite possible a protection for certain issue ads that mention a federal candidate's name and are broadcast during the 30-day primary or 60-day general election blackout period will be carved out.
If the ads don't tread too closely toward any suggestion that said candidate is unworthy to be re-elected. Or hint that in any way. And the people running the profit or non-profit corporation running the ads — what if they secretly hope such a terrible event could be the outcome of a better-informed electorate?
In the run-up to the 2004 elections, Wisconsin Right to Life, a non-profit corporation, sought to run ads that mentioned both Senators Russ Feingold and Herb Kohl. Feingold was up for re-election; Kohl was not. The ads warned that Senators were filibustering judicial nominations, but did not mention the fact that Feingold was a ringleader. The ads urged people to contact both Senators, but gave no phone number. Instead, the ad offered a website, which was very critical of Feingold's stance.
But the ads never ran. The FEC silenced them under McCain-Feingold, otherwise known as the Bipartisan Campaign Reform Act. Hence the lawsuit by Wisconsin Right to Life, asking to be able to lobby citizens on issues of importance through the dominant broadcast media. Without being banned around election times when voters pay the greatest attention to politics.
Presently, if major legislation were to come before Congress close to primary or general elections, groups would be prohibited from any broadcast that refers to a specific candidate. It's illegal to say his name, but call your congressman anyway and urge him to support free speech.
In the other breath of fresher air this past week, the supreme court of Washington state ruled unanimously that a radio station was not making a "contribution" when two talk show hosts spoke extensively in support of a referendum on a hike in the gas tax.
In a concurring opinion, Judge J. M. Johnson called the legal action "abusive prosecution by several local governments," adding that "The Municipalities involved expected millions of dollars from increased tax revenue if Initiative 912 failed to qualify for the ballot."
Talk show hosts Kirby Wilbur and John Carlson with radio station KVI spoke out consistently in 2005 against an increase in the tax on gasoline and in favor of a referendum to allow voters to decide the issue at the ballot box. They urged all manner of support, including contributions to the referendum campaign.
But several municipal governments filed suit demanding that the cost of the programming be reported as a campaign contribution. A lower court judge agreed and so ordered. Not only did KVI have to report their programming as a contribution, but because Washington state statute forbids any contribution over $5,000 in the final 21 days, the radio station was effectively silenced on the issue. Fearing any conversation could open the station up to litigation regarding the contribution cap, management instructed hosts Wilbur and Carlson not to talk about the gas tax.
Both of these legal cases are indeed good news, as far as they go. But our glee should be tempered by three facts:
1) Wisconsin Right to Life was successfully silenced by the federal government in 2004.
2) Kirby Wilbur, John Carlson and radio station KVI were successfully silenced by state and local governments in 2005.
3) The First Amendment has been turned on its head. The courts have placed the statutory desires of Congress to regulate speech (as well as similar desires of state and local governments) before the people's constitutional right to speak, petition their government, and to associate with others to do so. Sadly, even winning both of these cases will not change that terrible fact.
In fact, the Washington state decision was predicated entirely on the media exemption, written into state speech regulation to mirror the federal media exemption. In a footnote, the majority wrote:
The media exemption represents a policy choice to accord full protection to the first amendment rights of the press even at the expense of countervailing societal interests that may be served by campaign finance regulations. We note that nothing in our decision today forecloses the legislature, or the people via the initiative process, from limiting the statutory media exemption.
What are mere citizens who wish to speak out politically? Chopped liver? Why don't our courts and legislators accord "full protection" to us? Is it because big media has money and influence and the average citizen does not? Is that why our founders shed their blood . . . to protect the ability of the rich and powerful to speak?
Notice, too, that the court suggests the Washington legislature could indeed choose to end freedom of speech for the media, too. How can we stomach radio stations being scared to talk about a political issue for fear of legal retaliation?
It is absurd to talk about the First Amendment, on the one hand, and government regulatory agencies with jurisdiction to regulate any entity that uses mass media to talk about politics, on the other. If Congress "shall make no law," how can we have speech black-out periods around elections? How can a law be passed forbidding groups from mentioning a politician's name?
Oh, speaking of . . . there's one additional and very pleasant sign for a restoration of political speech rights: Senator John McCain continues to struggle in his presidential campaign. I for one will never consider voting for John McCain because of the McCain-Feingold Act's attack on speech. Apparently, I'm not alone.
But can I still say that?
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