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Tuesday, March 24, 2009

The Trial Balloon of the Century

In my last post, I argued that violations of rights usually follow a pattern in which the government sets a precedent in a "special" situation that appears limited or temporary. The state then uses this precedent to justify even greater violations. Over time, such precedents serve the wider purpose of abrogating the concept of rights as such and logically must lead to tyranny. This is most recently evidenced by the virtual disappearance of private property rights. In the same fashion, the government now appears to be taking aim at a right without which civilization is doomed - the right to think.

In a past post, I argued that if freedom of speech were to be abrogated in the United States, it would be the final straw for advocates of freedom and should lead to an all out revolution. This is because without the freedom to think, all other rights are meaningless. Quoting Ayn Rand:

Since knowledge, thinking, and rational action are properties of the individual, since the choice to exercise his rational faculty or not depends on the individual, man’s survival requires that those who think be free of the interference of those who don’t. Since men are neither omniscient nor infallible, they must be free to agree or disagree, to cooperate or to pursue their own independent course, each according to his own rational judgment. Freedom is the fundamental requirement of man’s mind.

The Ayn Rand Center for Individual Rights recently posted Taking Free Speech for Granted which mostly dealt with an Iranian case but also mentioned the threat posed by campaign finance laws. Related to campaign finance law, there is an incredibly important case in front of the Supreme Court that could determine the fate of free speech and therefore, civilization itself.

The case involves the campaign finance laws’ distinction regarding political “ads” versus political “speech”. Since the campaign finance laws give the federal government power to regulate political ads and contributions to campaigns, the case revolves around the question of when a movie or any other form of speech is actually an “ad” and when it is just “speech”.

Government lawyers argued that conservative group Citizens United's 90-minute documentary "Hillary: The Movie" is a political ad just like traditional one-minute or 30-second spots and therefore regulated by the McCain-Feingold law, the popular name for 2002 revisions to the nation's campaign finance laws.

How does one make this distinction? It is functionally impossible to do so. Any book, movie or speech of any kind about a political figure could be construed as an “advertisement” in the sense that it provides information or an opinion that could influence a voter. Fortunately, the justices asked the appropriate question:

But if the federal government can treat a movie like a political advertisement, then why not books, the justices asked.

And what was the government’s response?

It can, answered Stewart, "if the book contained the functional equivalent of express advocacy," the test used in regulating broadcast, cable or satellite communication released 60 days before a general election or 30 days before a presidential primary or convention.

That answer seemed to concern the justices. What about electronic books, like those used on Amazon's Kindle reader, justices asked. Yes, Stewart said.

What if Wal-Mart wanted to run ads touting an action figure of a political candidate, Chief Justice John Roberts asked, could that be regulated? "If it aired at the right time, it would," Stewart said.

Unfortunately, it appears that the defense is taking an unprincipled approach to this issue. Rather than showing that the entire premise of campaign finance laws represents a violation of the First Amendment, they appear to be making the pragmatic argument that this particular movie is not an instance of an “ad” or "express advocacy" as defined by the law.

Olson argued that campaign finance laws should not apply to the movie at all, calling it a "long discussion" that "informs and educates" interested people on Clinton's qualifications and record.

Naturally, this pragmatic approach will not “work” in the long run, because the movie is certainly anti-Hillary and to argue otherwise is virtually ridiculous. However, that should be beside the point. In principle, the freedom of speech means that anyone has a right to say anything they want about a political candidate at any time. Not surprisingly:

That argument did not seem to sway several of the court's liberal justices.

Several justices quoted from the script, which is filled with criticism of the former first lady. It includes Dick Morris, a former adviser to President Bill Clinton who is now a Clinton critic, saying the one-time candidate is "the closest thing we have in America to a European socialist."

"If that isn't an appeal to voters, I don't know what is," Justice Ruth Bader Ginsburg said.

What form of political speech is not, effectively, an “appeal” to voters? Under this standard, everything that is said by anyone could be construed as an "advertisement" and banned. Of course, the practical effect will be that whichever party is in power will interpret speech critical of their policies to be "advertisement's" subject to felony imprisonment (violations of campaign finance laws are felonies) and any favorable speech as protected political speech. Such a precedent would have a chilling effect on all political speech and would virtually overthrow the First Amendment.

Note, the seeming irony that it is a liberal administration offering this argument and it is the liberal justices who are in favor of such bans. Usually, censorship is associated with the Religious Right and it is the so-called liberals who are at the vanguard of the free speech movement. As I argued in my post Modern Intellectuals at the Gate regarding so-called hate speech codes being promulgated by the left and in a different context in my post Anti-Anti-Communists, such violations of rights are entirely consistent with and in fact necessitated by the Left's ideology.

As discussed previously, the case being heard regarding the campaign finance laws represents yet another “trial balloon” being floated by the government which would set a precedent for broader restrictions on speech in the future. The only hopeful statement I can wring from this article was the following:

Arguing that a movie and a campaign ad are the same could have adverse consequences for the McCain-Feingold law, Justice Anthony Kennedy said. "If we think that the application of this to a 90-minute film is unconstitutional, then the whole statute should fall," Kennedy said.

Let's hope a majority of the justices reach the same conclusion.


Ardsgaine said...

If it applies to movies and books, wouldn't it also apply to other media? Newspapers, magazines, blogs, YouTube? By what mental gymnastics are they separating all these things out?

The Rat Cap said...


They are not. This law would apply to all media. The government's lawyer said as much.

Ardsgaine said...

I seem to recall an informal meeting that took place several years ago between bloggers and legislators at which the bloggers were assured that the law would not apply to them. Do you have any recollection of that? How would that affect the government's case, if the meeting did take place?

Regardless, Kennedy has the right of it in this instance. The law is unconstitutional on any reading, but that fact is blindingly obvious when the government attempts to expand its application so broadly.

The Rat Cap said...


Thanks for letting me know about that issue.

First, I would not count on "assurances" from legislators. With every new government violation, we are assured that it is temporary or limited. This is why it is crucial to think in principle and oppose even the slightest infringement of our liberty.

Second, I did a few minutes of digging and here is a link I found from 2005 which discusses (if you can find anything recent, let me know - I could not find anything after about 2006 related to this)


In 2002, the FEC exempted the Internet by a 4-2 vote, but U.S. District Judge Colleen Kollar-Kotelly last fall overturned that decision. "The commission's exclusion of Internet communications from the coordinated communications regulation severely undermines" the campaign finance law's purposes, Kollar-Kotelly wrote.

Smith and the other two Republican commissioners wanted to appeal the Internet-related sections. But because they couldn't get the three Democrats to go along with them, what Smith describes as a "bizarre" regulatory process now is under way.

Ardsgaine said...

I thought that, for purposes of a SCOTUS decision, it would be relevant to the intent of the legislators in passing the law. I'm not an expert on these issues-- I wouldn't even call myself a well-informed amateur--but I had thought that legislative intent was one of the things that SCOTUS looks at in interpreting the law.

But I think the better outcome will be that they do interpret it as applying to all types of media. Applying it to one segment only allows the government to divide and conquer. That's the whole purpose of these trial balloons, to determine if the voters have enough sense to understand that a law threatens everyone's rights, rather than just the rights of some despised minority. Obviously, when McCain-Feingold passed, people thought it was going to apply just to political ads, but now it looks like all political speech will be affected. The muzzle that they fashioned for one group will fit the rest of us just as well.

The Rat Cap said...

I think the intent is relevant to them. You make another very good point. If the law is applied broadly then the effect will be obvious. Pragmatism is so rampant that, typically, the SCOTUS will interpret it in some concrete way like "it applies to tv ads but not to anything else" and people move on and say "well, it doesn't affect me" as if the precedent is irrelevant because right now this minute they in particular are not being oppressed by the law.