thedrifter
03-27-09, 10:27 AM
March 27, 2009, 4:00 a.m.
A Clear Danger to Free Speech
By the Editors
From its conception, the McCain-Feingold campaign-finance law was an assault on the First Amendment. Signing that unconstitutional bill into law, knowing it to be unconstitutional, was one of the worst moments of George W. Bush’s presidency. Yet this malignancy lurks in the legal code, widely accepted, even celebrated. Now Deputy Solicitor General Malcolm Stewart has gone before the Supreme Court arguing that McCain-Feingold gives the government the right to ban books and films. He’s right, it does. And for that reason, McCain-Feingold should be nullified.
At issue is a film called Hillary: The Movie, a documentary produced by the nonprofit group Citizens United, which did not wish to see Senator Clinton elected president. Because McCain-Feingold prohibits so much as mentioning a candidate’s name in pre-election communications paid for by certain disfavored groups — unions and “corporations” — the filmmakers were informed by a federal judge that showing their work would constitute a crime. The filmmakers sued, and the case is Citizens United v. Federal Election Commission. Mr. Stewart is defending the government’s ban on this film; the same rules that apply to a campaign commercial apply to a documentary film, his reasoning goes. Justice Alito alertly pressed Mr. Stewart on that issue: If commercials and films are covered, how about books? How about campaign biographies? Yes, Mr. Stewart answered, the U.S. government is prepared to ban books, under certain circumstances, and is legally empowered by McCain-Feingold to do so. Jaws dropped, black robes fluttered.
Under the law, it depends on who is paying for those communications, and here the government has two targets, one well defined and one less so. The first group whose speech is suppressed under McCain-Feingold is labor unions. We rarely find ourselves on the same side politically, but we would not see them stripped of their First Amendment rights. The second group is “corporations,” a word that has practically become a term of abuse — good guys are businessmen, employers, or entrepreneurs, bad guys are corporations — but is in fact a common form of legal organization employed by a myriad of enterprises, including nonprofit advocacy groups, of which Citizens United is one. Let that sink in: The First Amendment was intended to protect political speech, the right to advocate causes and criticize government officials, and McCain-Feingold holds that organizations incorporated for the express purpose of engaging in political speech are to be burdened with special restrictions. Put another way, a stripper pole-dancing in Vegas has more robust First Amendment protections under current practice than does a political-advocacy group organized as a nonprofit corporation.
There is a special exemption in McCain-Feingold for newspapers, which also are corporations engaged in political advocacy. (A plan in the Senate to “save newspapers” by having them reorganize as tax-exempt nonprofits is one step of the censor here: Participating newspapers would be forbidden from endorsing candidates.) Practically every media business and book publisher of any consequence is a corporation under the law. A Supreme Court decision in favor of McCain-Feingold threatens the free-speech rights of most of the organized enterprises engaged in political debate.
As Institute for Justice staff attorney Paul Sherman puts it, “What we saw was the Supreme Court grappling with the inevitable logic of these laws. If the Supreme Court decides this case correctly, media and nonprofits will be able to breathe a sigh of relief. If the Court sides with the government, nonprofits and media should be scared. . . . The ones who suffer are small grassroots groups. The big companies can hire lawyers and figure out ways to comply. Ordinary small groups of citizens end up silenced.”
McCain-Feingold was proffered to reduce the influence of money in elections, as though sidelining private citizens while the terms of political debate are set by members of the revolving-door government-media clique were a guarantee of integrity rather than its opposite. Citizens should have the right to make their views heard, to criticize the government, in print, on film, and on the airwaves — and to raise the funds necessary to do so. A documentary film criticizing a senator deserves at least as much constitutional protection as a work of pornography.
McCain-Feingold is a blight. The conservatives on the court are skeptical of it. McCain was wrong to champion it. President Bush was wrong to sign it; perhaps the justices he appointed will correct his error.
Ellie
A Clear Danger to Free Speech
By the Editors
From its conception, the McCain-Feingold campaign-finance law was an assault on the First Amendment. Signing that unconstitutional bill into law, knowing it to be unconstitutional, was one of the worst moments of George W. Bush’s presidency. Yet this malignancy lurks in the legal code, widely accepted, even celebrated. Now Deputy Solicitor General Malcolm Stewart has gone before the Supreme Court arguing that McCain-Feingold gives the government the right to ban books and films. He’s right, it does. And for that reason, McCain-Feingold should be nullified.
At issue is a film called Hillary: The Movie, a documentary produced by the nonprofit group Citizens United, which did not wish to see Senator Clinton elected president. Because McCain-Feingold prohibits so much as mentioning a candidate’s name in pre-election communications paid for by certain disfavored groups — unions and “corporations” — the filmmakers were informed by a federal judge that showing their work would constitute a crime. The filmmakers sued, and the case is Citizens United v. Federal Election Commission. Mr. Stewart is defending the government’s ban on this film; the same rules that apply to a campaign commercial apply to a documentary film, his reasoning goes. Justice Alito alertly pressed Mr. Stewart on that issue: If commercials and films are covered, how about books? How about campaign biographies? Yes, Mr. Stewart answered, the U.S. government is prepared to ban books, under certain circumstances, and is legally empowered by McCain-Feingold to do so. Jaws dropped, black robes fluttered.
Under the law, it depends on who is paying for those communications, and here the government has two targets, one well defined and one less so. The first group whose speech is suppressed under McCain-Feingold is labor unions. We rarely find ourselves on the same side politically, but we would not see them stripped of their First Amendment rights. The second group is “corporations,” a word that has practically become a term of abuse — good guys are businessmen, employers, or entrepreneurs, bad guys are corporations — but is in fact a common form of legal organization employed by a myriad of enterprises, including nonprofit advocacy groups, of which Citizens United is one. Let that sink in: The First Amendment was intended to protect political speech, the right to advocate causes and criticize government officials, and McCain-Feingold holds that organizations incorporated for the express purpose of engaging in political speech are to be burdened with special restrictions. Put another way, a stripper pole-dancing in Vegas has more robust First Amendment protections under current practice than does a political-advocacy group organized as a nonprofit corporation.
There is a special exemption in McCain-Feingold for newspapers, which also are corporations engaged in political advocacy. (A plan in the Senate to “save newspapers” by having them reorganize as tax-exempt nonprofits is one step of the censor here: Participating newspapers would be forbidden from endorsing candidates.) Practically every media business and book publisher of any consequence is a corporation under the law. A Supreme Court decision in favor of McCain-Feingold threatens the free-speech rights of most of the organized enterprises engaged in political debate.
As Institute for Justice staff attorney Paul Sherman puts it, “What we saw was the Supreme Court grappling with the inevitable logic of these laws. If the Supreme Court decides this case correctly, media and nonprofits will be able to breathe a sigh of relief. If the Court sides with the government, nonprofits and media should be scared. . . . The ones who suffer are small grassroots groups. The big companies can hire lawyers and figure out ways to comply. Ordinary small groups of citizens end up silenced.”
McCain-Feingold was proffered to reduce the influence of money in elections, as though sidelining private citizens while the terms of political debate are set by members of the revolving-door government-media clique were a guarantee of integrity rather than its opposite. Citizens should have the right to make their views heard, to criticize the government, in print, on film, and on the airwaves — and to raise the funds necessary to do so. A documentary film criticizing a senator deserves at least as much constitutional protection as a work of pornography.
McCain-Feingold is a blight. The conservatives on the court are skeptical of it. McCain was wrong to champion it. President Bush was wrong to sign it; perhaps the justices he appointed will correct his error.
Ellie