Free speech - sometimes

Posted: Mar 01, 2006 12:05 AM

This week the Supreme Court heard arguments in yet another campaign finance case. At issue is a Vermont law that caps not only how much people can give to a candidate, but how much a candidate can spend. The smart money is on a long, messy, complicated ruling that clarifies less than it confuses. Why? Because that's how we like it.

Free speech is a lot like free trade. It sounds simple in theory, but in practice it gets awfully messy. For example, the North American Free Trade Agreement, which is supposed to establish "free trade" between the countries of North America, is - with all of its accompanying documents - about the size of a good encyclopedia. The thing is, if it were a real free trade treaty, it would take somewhere between a page and a sentence. It would say "there shall be free trade between the U.S., Canada and Mexico." Instead, it's a Byzantine series of lawyerly exceptions, caveats, codicils and loopholes. And yet, we call it a free trade document.

Similarly, most of us believe in free speech, but if you took the pages laying out the rules determining what constitutes free speech - in court documents, government regulations and the like - it would probably stretch from here to the moon and back a couple times.

This regulatory morass is no accident. It reflects both popular confusion and popular convictions about free speech. Nobody says they favor censorship, yet most Americans believe that the FCC should keep porn off broadcast television, for example. Copyright and trademark law often serves as a very useful form of censorship. It bars people from ripping off the intellectual property of others. But, technically speaking, plagiarized speech is still speech.

And of course, there is the hothouse world of "public health," which requires corporations to say things they don't want to say. Much of this is unobjectionable. There's nothing wrong with truth in advertising and the like. One can get stuck in the weeds of principle, but as a pragmatic matter, forcing companies to tell you what's in the Twinkies they're selling strikes me as a legitimate public good. But it doesn't end there. In the '90s, the Clinton administration subsidized Hollywood to put anti-drug messages in shows such as "ER." Liberal elites were horrified by this, but they had no problem with the feds forcing tobacco companies to spend hundreds of millions of dollars trying to convince people not to buy their products. And surely the freedom not to speak is as sacrosanct as the freedom to speak.

The biggest source of confusion stems from the left's success in turning personal and "lifestyle" rebellion into political rebellion. We now have in this country a widespread conviction, upheld by law, that smut is protected speech. Strippers have a constitutional right, many believe, to "express" themselves. Indeed, so ingrained is this conviction that every few years or so we have a big culture-war fight over state-sponsored "art" - crucifixes in urine, bullwhip enemas, Virgin Marys in dung, etc. - and the defenders say that the revocation of a subsidy is indistinguishable from "censorship."

And this is what makes the debates about campaign finance "reform" so infuriating. The Founding Fathers would have seen absolutely nothing wrong with authorities censoring pornography. But they would be horrified by regulation of political speech. That is the whole point of the First Amendment - to protect political speech. Normally, when we debate civil liberty, we say that the extreme examples need to be allowed so that our core freedoms remain intact. From the pro-choice defense of partial-birth abortion to the NRA's advocacy for the right to own assault weapons, the argument is normally that we have to guard the fringe so that our most cherished liberties remain free.

But campaign finance "reform" turns this on its head. Anonymous political speech - today called "stealth ads" - is often censored precisely when it would have an effect: during a campaign. The Federalist Papers, you might recall, were written anonymously.

The Vermont law not only restricts what people can give to a campaign, which is bad enough, but it limits what a candidate can spend on his own campaign. A gubernatorial candidate can speak in his own defense until he spends $300,000, and then the state can tell him to shut up. This makes newspapers and television stations the real powerbrokers in the state, not the citizens.

I'm no free speech purist. But, since no one else is either, maybe we could borrow from the public-health sector. Let's treat politicians like Twinkies. They have to disclose their ingredients - i.e., where their money is from - but beyond that, let the buyer beware.

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