Somehow, in the last 40 years the entire concept of free speech has been completely inverted. The closer a person or group gets to doing precisely what the First Amendment was intended to protect, the more likely it is that the government will regulate or ban it. Conversely, the further out we get, the more likely it is that "Free Speech" will be an indispensable iron law of liberty, unbreakable without bringing the edifice of liberty down in rubble.
For example, when I first arrived in Washington more than a decade ago, everyone was going ballistic over whether it constituted "censorship" for the National Endowment for the Arts to revoke or deny a subsidy.
In 1989 the NEA denied grants to "artists" such as Karen Finley. Finley's most well-known work at the time involved smearing her naked body with chocolate while doing pornographic things with other foodstuffs and shouting such insightful comments as "God is Death."
I know what you're saying. Man, that's deep.
But in Washington, serious people took it very seriously. The notion that denying her and others like her (Robert Mapplethorpe, for example) a check from the government equaled "censorship" was being shouted in Congress and in all the newspapers. Finley got another grant a few years later by the way.
Since then, these controversies pop up on an almost annual basis. The most recent major brouhaha was when the Brooklyn Museum of Art exhibited a depiction of the Virgin Mary smeared with elephant droppings. When then-Mayor Giuliani suggested he didn't want the city to the pay for such stuff, The New York Times thundered over and over again about "censorship" and how such a move ran "headlong into the First Amendment's guarantees of free expression."
Maybe The New York Times is right. I don't really see it, but that's not the point. The point is that in most other arguments about civil liberties, people make slippery slope arguments about silly and minor things in order to defend serious and major things. Abortion rights groups ludicrously complain that girls can't be told about adoption because it might constitute a first step towards a total ban on abortion. The National Rifle Association opposes waiting periods for guns, because they, too, fear it will lead to a total gun ban.
Whatever you may think of those arguments, at least they frame the debate the right way. We protect things on the outskirts of constitutional protections in order to ensure that our most cherished liberties remain untouched within those borders.
The arguments about campaign finance reform do exactly the opposite. Right now in Washington "reformers" are creating huge hurdles, and for some groups outright bans, on political speech aimed at candidates during election season (imagine how newspapers would scream if Congress said all stories about candidates must be "nice" 30 days before an election). As former presidential candidate and governor of Tennessee Lamar Alexander noted a few years ago, if our current laws existed before the American Revolution, Thomas Paine would have had to file "Common Sense" with the Federal Election Commission.
The "reformers" want to ban what they call "stealth ads" in which semianonymous groups can criticize politicians and the government, clearly forgetting that the Federalist Papers - the user's manual to the U.S. Constitution - were written anonymously by Alexander Hamilton, James Madison and John Jay under the "stealth" pseudonym "Publius."
Meanwhile, "free expression" - which is not mentioned in the Constitution - in the form of flag-burning and self-mutilation is given much more reverence than old-fashioned "free speech." I can burn a flag tomorrow. I'd need permission from the federal government to take out an ad saying candidate X is in favor of flag-burning.
Look: the Founders didn't consider a federal subsidy for artists to dunk a crucifix in urine or smear the Virgin Mary with Dumbo scat the sort of free speech that is essential for a free society. They did, however, consider the vigorous criticism of candidates to be free speech. But, if I suggest any regulations on what kind of "art" is acceptable for public museums, I'm a fascist. However, if I say that we don't need to add more regulations to an already wildly overregulated political system, I'm an enemy of democracy.
It's as if the civil liberties zealots have been so busy defending the distant outposts of freedom, they didn't notice the enemy forces deep within our perimeter. Worse, they're so far out there, they can't even recognize the sound of battle and come to our aid.