Free speech for me, but not for thee
The Supreme Court ponders whether speech curbs are constitutional
“HILLARY: THE MOVIE” is unwatchable. From the first frame, it presents a dreary caricature of Hillary Clinton as a power-crazed harpy with no redeeming qualities. She is cynical, manipulative, dishonest and ruthless—and so on for 90 excruciating minutes. Wasn’t there at least a dog she once omitted to kick, or a child whose lollipop she didn’t steal?
That said, “Hillary: the Movie” is no duller or more biased than much of what passes for journalism these days. And it is clearly political speech, which the constitution’s first amendment unambiguously protects. “Congress shall make no law… abridging the freedom of speech,” it says. Not “thoughtful, balanced speech”; just “speech”. Yet the creators of the movie were forced to drop plans to distribute it via cable television for fear of stiff fines and long jail terms.
The reason is that Congress has in fact passed a number of laws that abridge the freedom of certain groups to say certain things, in certain ways and at certain times about—wait for it—politicians. Among these laws is the Bipartisan Campaign Reform Act of 2002, better known as McCain-Feingold after its senatorial sponsors. Among other things, this law bars corporations or unions from financing the broadcast of electioneering messages about candidates within 30 days before a primary or 60 days before a general election.
The Hillary movie was made by a conservative group called Citizens United, which wanted to release it during the Democratic primaries last year. The group calls its creation a documentary, which would be exempt from McCain-Feingold’s strictures. The Federal Election Commission (FEC) ruled it was the equivalent of an attack ad, and could therefore not be paid for with money from for-profit corporations. Citizens United is a not-for-profit group supported mostly by individual donations, but it has also received donations from private firms. It sued the FEC on free-speech grounds, and the case came before the Supreme Court earlier this year. Instead of deciding it on narrow grounds, the court took the unusual step of asking for it to be re-argued, to examine the constitutionality of a large part of America’s campaign-finance system. It heard arguments on September 9th.
The case for campaign-finance curbs goes something like this. Corporations have a lot of money, which could give them a lot of influence. So they should be barred not only from giving large amounts to candidates but also from paying to disseminate views that might affect an election. If they wish to raise money to express political views around election time, they must form a “political action committee” (PAC), jump through regulatory hoops and raise only limited amounts of money from each donor. The counter-argument is that this system (which is much more complicated than described) does not work. It has not kept money out of politics: the amount spent on presidential elections has grown relentlessly. And the complexity of campaign-finance law makes it hard even for well-meaning candidates to be sure they are not breaking it. John McCain, who ought to know better, was accused of an arcane but serious violation last year.
Big companies can hire lawyers to help their PACs find their way through the maze, but the little guys get lost. And some states have tried to use campaign-finance laws to stifle debate. In Washington state, prosecutors claimed that a friendly discussion of an anti-tax campaign on a radio show was a political donation that the campaigners should have declared. In Colorado, a group of homeowners protesting a plan to incorporate their neighbourhood into a nearby town were sued for displaying yard signs without registering as a PAC. Free-speech advocates won these cases, but they needed lawyers to do so.
Another effect of campaign-finance laws is to protect incumbents. That, suggested Justice Antonin Scalia on September 9th, may well have been their purpose. Incumbents have no trouble getting on the evening news. Their challengers are often unknown, and making it harder for them to raise money increases the odds they will stay that way. Outsiders can sometimes break in, as Barack Obama spectacularly showed. But the big donations that jump-started the insurgency of Eugene McCarthy, the anti-war candidate who prompted Lyndon Johnson not to seek re-election in 1968, would be illegal today.
Newspapers and television stations are exempt from the strictures of McCain-Feingold, so they can spend vast sums supporting or hounding political candidates without fear of reprisal. Some media firms, such as the New York Times, see no problem with denying other corporations the same right. But five of the nine Supreme Court justices seem to find it troubling. If a politician promises to ban tobacco, asked Chief Justice John Roberts this week, is it fair to ban tobacco firms from responding?
And now to books
Free-speech enthusiasts fear that unless the first amendment is jealously guarded, it will be abused. And they have reasons to do so. Earlier this year the federal government claimed the power to ban books that support or oppose a named candidate, if those books are financed by a corporation, as most books are, and published too close to an election. That could include anything from Michael Moore’s rantings to John Kerry’s ponderous autobiography. This week, the solicitor-general appeared to retreat from this outrageous claim, saying that the FEC almost certainly would not ban books. But what about pamphlets? And why should something so fundamental depend on a bureaucrat’s whim? With bloggers and YouTube continually blurring the line between advocacy and journalism, it is growing ever harder to regulate corporate speech coherently. The Court may well tell politicians to stop trying.