The Interocitor

Freedom of (Approved) Speech

The Supreme Court today decided that political speech was essentially a commerical activity that could be regulated just like any other, or thereabouts. "Money is not speech" and therefore any speech that is funded by money can be regulated. Apparently, Congress' power to regulate federal elections trumps the First Amendment. Futher, the decision is not limited to the case at hand, but leaves the door wide open to further "fixes."

As John Eastman points out:

In recent years, Congress has passed major legislation restricting 1) pornography on the internet; 2) kiddie porn on the internet; and 3) issues advocacy 60 days before an election--core political speech. The Supreme Court upheld the constitutionality of one of these restrictions, held that one was unconstitutional, and strongly suggested the remaining restriction was also unconstitutional.

According to Sandra O'Connor, internet porn, including virtual kiddie porn, is protected by the 1st Amendment, but dissing your Congressman during an election is criminalized. Sometimes I wonder how long this "voting" thing will be tolerated.

Eugene Volokh excerpts some of Thomas' dissent, in which Thomas notes that nowhere in this decision is there any bar to Congress regulating the media as to political content:

The chilling endpoint of the Court's reasoning is not difficult to foresee: outright regulation of the press. None of the rationales offered by the defendants, and none of the reasoning employed by the Court, exempts the press. This is so because of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from [nonmedia] corporations.

In fact, the majority opinion all but advocates further restrictions on political activity to close loopholes:

We are under no illusion ... Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day.

Then there is Scalia, who states the case bluntly as ever:

This is a sad day for the freedom of speech. Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002), tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001), dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514 (2001), and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000), would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about. We are governed by Congress, and this legislation prohibits the criticism of Members of Congress by those entities most capable of giving such criticism loud voice: national political parties and orporations, both of the commercial and the not-for-profit sort. It forbids pre-election criticism of incumbents by corporations, even not-for-profit corporations, by use of their general funds; and forbids national-party use of "soft money" to fund "issue ads" that incumbents find so offensive.

The sad fact is that the Supreme Court has abandoned the First Amendment, and left regulation of political speech solely in the hands of Congress, which of course wants as little as possible interfering with their infinite re-elections.

The hands on the Revolution Clock move a little bit closer to midnight. The full decision is here.

UPDATE: See a list of other commentary at So Cal Law Blog

Posted by Kevin Murphy at December 10, 2003 02:38 PM | TrackBack