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Monday, April 01, 2002
Free speech for me, but not for thee
The New York Times was a key figure in two of the landmark free speech cases in United States history. In New York Times v. Sullivan, the Supreme Court ruled that the freedom to criticize public officials was so important that even mistakes in that criticism didn't justify defamation suits, unless those mistakes were made recklessly or deliberately. And in the Pentagon Papers case, the Court ruled that even claims of dangers to national security couldn't justify prior restraint by the courts -- that is, a judge preventing something from being published. (*)

(*) For all my fellow attorneys out there, I know I'm oversimplifying. The nuances are unimportant here.

Thus, the Times' extremist views on campaign finance censorship are particularly galling. It's not merely their position on the so-called "reform" policy that is so irksome, but their willingness to distort and misrepresent in order to justify the unjustifiable.
Opponents of the law, starting with the National Rifle Association, have rushed into court to argue that it violates the First Amendment. Those arguments should be rejected.
Actually, one would think one should "start with" the American Civil Liberties Union, which is generally identified as being an organization devoted to free speech -- but the Times finds it less satisfying to demonize the ACLU than the NRA, so the misrepresentations begin.
What is being regulated here is not speech but money, and it is being done in ways the Supreme Court has expressly endorsed in its past decisions.
No, what's being regulated here is speech, and the Supreme Court has expressly rejected the idea that such speech can be regulated. In fact, in past decisions, the Supreme Court has held that money is speech. What the Supreme Court has said is that campaign contributions -- that is, money actually given to a candidate -- can be limited. But McCainShaysFeingoldMeehan goes far beyond that, banning many television and radio advertisements by independent parties in the days before an election.
The court has long drawn a distinction between pure issue advocacy, which merits the highest level of First Amendment protection, and campaign ads, the financing of which Congress can regulate to protect the integrity of the electoral process.
Actually, the court has never drawn any such distinction. The Times is -- what's the word? Oh yeah -- lying. What the court has said is that the money spent on a campaign ad which is coordinated with a campaign can be treated as a contribution, and thus regulated. An independent campaign ad, on the other hand, is completely protected free speech, though it may have an impact on an organization's tax-exempt status. All of this is a red herring, though, since McainShaysFeingoldMeehan doesn't limit itself to "campaign ads."
In recent years, special interests have done an end run around contribution and spending rules by running ads in the days leading up to an election that purport to be about an issue but are actually campaign ads intended to help one candidate win. ("Call Congressman Smith," the paradigmatic phony issue ad goes, "and tell him to stop trying to destroy Social Security.")
One would think that if Congressman Smith were trying to destroy Social Security, that this is a very appropriate issue ad to run, particularly right before the election. But not to the Times -- except if you took out a full page ad in The New York Times saying the same thing, in which case they'd take your money happily. The Times, as usual, pretends that the law can, or does, make distinctions between "phony" issue ads and "real" issue ads. In fact, the law simply declares that any ad which mentions a candidate is what the Times would call a "phony" issue ad.
Under the new law, such television ads would fall under the campaign finance limits if they were run within 60 days of an election, or 30 days of a party primary. The law's critics argue that this restriction violates freedom of expression, but they are wrong. Anyone has a right to buy genuine issue ads at any time, and they also have the right, under McCain-Feingold, to spend their quota of campaign donations to finance ads that are intended to help one particular candidate or party. No one is prohibited from speaking.
That's true; they're only prevented from speaking on television or on the radio, and only prevented from speaking about a candidate. If they'd like to talk about the weather, they can do so all day. The Times doesn't think this violates freedom of expression. I would disagree. So would the ACLU.
The only thing the campaign finance reform law prohibits is spending in excess of federal campaign limits to pay for a campaign ad masquerading as something else. The Supreme Court has long recognized that distinction. The McCain-Feingold law simply builds on that reasonable principle and sets out an improved, and updated, definition for when advertising crosses the line.
With that "definition" being "any ad which mentions a candidate." Few would call that "reasonable," unless they stood to profit directly from the law, as the Times does.
Opponents of the reforms protest that in some cases legitimate issue advocacy could be deterred in the final days of an election just because the ads mention the name of a candidate. An example they cite is a recent advertisement that urged House Speaker Dennis Hastert, who is up for re-election, to take action on a bill. But it does not unduly burden free expression to require that an ad run in a candidate's district close to Election Day be financed with money that is not illegal under campaign finance law.
The Times here is pulling a bait-and-switch, the equivalent of arguing that it's no big deal to prevent black people from voting because, after all, black people shouldn't be allowed to vote anyway. Since the entire issue is whether the money can be declared "illegal," one can't justify such a declaration by saying that the money is illegal. (Incidentally, the unnamed "opponents" the Times mentions is the ACLU, which used that specific Dennis Hastert example in a press release.)
Besides, bona fide issue ads that mention a specific candidate but are unrelated to a campaign are exceedingly rare in the days leading up to an election, when ad rates are high and everyone's attention is directed at the campaign.
Those not trained as attorneys might squint and twist ones head looking at the Constitution for a "These are exceedingly rare" exception to the first amendment. But the New York Times knows better.

Well, I'd like to run a campaign ad here: call the New York Times, and demand that they stop lying about this law. (If this works, I expect that the TImes will call for the outlawing of Blogger next.)

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