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Shut up, they explained
Question of the Day
According to the Declaration of Independence of July 4, 1776, the purpose of government is to safeguard our inalienable rights to life, liberty and the pursuit of happiness. The Constitution the Founders later drafted therefore sought to secure those blessings “to ourselves and our posterity.”
Neither document talks about securing officeholders from the hazards of political opposition.
In fact, the Founders expected government officers would eventually seek to violate freedom of speech and other critical liberties. So they added an explicit Bill of Rights in hopes of preventing such incursions. Freedom of assembly, religion, and speech are protected in the First Amendment of that Bill of Rights.
The first major attempt to end-run the First Amendment came with the Alien and Sedition Acts of 1798. Though the alleged goal of the Acts was to protect the state from seditious activity, in practice they were deployed to muzzle partisan opponents.
More recent assaults on freedom of speech are often bipartisan, and pretend to be indifferent to the content of what you say. Instead, the assailants contend that your speech is not protected if it is paid for in the “wrong” way; or if your noncampaign organization mentions a politician in a TV ad “too close” to an election; or even if your speech “would” cost more than campaign finance regulations allow if you had been charged for it.
This last sounds incredible even by today’s dilapidated political standards, but it is the logical fruit of the new-and-improved campaign finance regime foisted on us in 2002. As political commentator George Will argues, McCain-Feingold-style precedents have opened the floodgates to ever more flagrant gagging of speech which the politicians find troublesome. Seattle radio talk show hosts John Carlson and Kirby Wilbur of Station KVI discovered this when they opposed a gas tax increase in Washington state.
Oh, nobody claimed it was illegal to preach against tax increases. But local governments in line to benefit from the new revenue persuaded a judge that the talk jockeys’ speech was an “in-kind” contribution to the repeal campaign, and hence subject to the state’s campaign finance regulations.
Mr. Will notes that the so-called reformers “always argue they want to regulate ‘only’ money, which, they say, leaves speech unaffected. But here they argue that political speech is money, and hence must be regulated. By demanding that the speech of two talk-radio hosts be monetized and strictly limited, reformers reveal the next stage in their stealthy repeal of the First Amendment.”
Campaign finance regulation is hardly the only source of assaults on our freedom of speech and the political engagement it makes possible. These are threatened on myriad other fronts as well, from a push to re-impose a fairness doctrine on media (especially irksomely contrarian talk radio), to “progressive” bans on “insensitive” speech in government workplaces, to demands that watchdog groups publicize the names of their donors.
For example, members of Congress tell groups like Public Citizen and Common Cause that if they want better disclosures about what politicians do with our tax dollars, such groups must in exchange unveil the names of their donors — as if making politically engaged private citizens more susceptible to government intimidation is a “fair” price of really knowing what our government is up to. “You can’t have it both ways,” proclaims Rep. Zack Space, Ohio Democrat. But the Constitution does not protect a citizen against government oppression only if the citizen agrees to makes it easier for the government to oppress him.
There may be light at the end of the tunnel. Just in time for the nation’s 231st birthday, the Supreme Court has decided in Federal Election Commission v. Wisconsin Right to Life Inc. that issue ads of the sort challenged on McCain-Feingold grounds may air after all during a campaign, and regardless of political motive, so long as they do not actually focus on a candidate. That partial concession to the weight of our constitutional heritage may one day lead to shredding the whole shoddy skein of politically motivated attacks on our First Amendment rights.
As Chief Justice John G. Roberts Jr. generously allowed in the June 25 ruling, “The First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” In any case, the logic of actually attending to the words of the Constitution can take us in only one direction.
The First Amendment does not protect freedom only of cheap speech, or of nonelectoral speech, or of speech that does not annoy officeholders. It protects freedom of speech as such.
William Wilson is president of Americans for Limited Government, a nonpartisan, nationwide network committed to advancing free market reforms, private property rights and core American liberties.
By Mark Davis
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