Time for a pop quiz. In your lifetime, who-liberals or conservatives-has brought the most cases before the Supreme Court pushing for a broader and more certain application of the First Amendment right to freedom of speech?
If you're anything like me, you've come to associate almost all such appeals with a permissive, liberal mindset. They're the ones who have said pornography's OK, that explicit sex in junior high literature courses is just fine, that flag burning's an appropriate expression of disagreement with foreign policy, that a crucifix immersed in a container of urine is permissible as a form of public art.
That's why a lot of folks were caught off guard when a conservative majority on the Supreme Court ruled in January that the freedom of speech clause means just what it says: Congress can't pass laws restricting such freedom, no matter how much they dress up such laws as promoting "fairness" and "justice."
The case grew out of the primaries leading up to the 2008 presidential election. A group had produced a documentary film titled Hillary: the Movie and wanted to show it regionally on cable TV. Election officials, though, said such airing would be in violation of the McCain-Feingold law that imposed strict limitations on political expenditures by corporations or groups like the one sponsoring the anti-Hillary Clinton movie. The law was clear, and everyone agreed the movie was in violation of the law. But was the law constitutional? Or did it violate the freedom of speech clause?
Supporters of the restriction argued, of course, that most of us uneducated voters are susceptible to the wiles of slick PR agents representing big and wealthy corporate interests. They see great danger in allowing Goldman Sachs, Enron, or "Amalgamated Food Adulteration Corp." to air 30second commercials that will end up putting in office exactly those politicians most desired by the corporate interests. "Aren't voters better off knowing what large corporations are up to," argued angry columnist Brian Dickerson, "and why they believe the election or defeat of certain candidates will promote their objectives?"
The ruling, according to an email I received from Mitch Stewart, one of President Obama's top political operatives, "overturned a 20-year precedent saying that corporations could not pay for campaign ads from their general treasuries. And it struck down a law saying corporations couldn't buy 'issue ads'-which only thinly veil support for or opposition to specific candidates-in the closing days of campaigns."
So are these fellows right that there will be abuse of various corporations' freedom to express their preferences during the frenzy of election campaigns? Of course, they're right. The abuse may even be rampant. That, we've got to admit, is both the wonderful weakness and the amazing strength of the freedoms our Constitution protects.
But let's be clear that such risks aren't all on one side. Our forefathers couldn't possibly have seen the monstrosity that our federal government has now become. But thankfully, they may have sensed that only a simple and emphatic "no" was sufficient to deal with all the fudging and all the compromising that would be proposed along the way to trim away our freedom.
You've heard it many times: Watch out when Uncle Sam drops by to say, "We're here to help you." Be skeptical even when the feds say, "We're here to help you understand the election better. We're here to stand up with you against the big guys."
After all, why trust them more than the big corporations? Why are the bankers' billions, and those of the insurance companies and the oil interests, more suspect than the trillions flung around by Congress? Does anyone really think Congress doesn't intend to shape public opinion?
Of course, congressmen think they can run an election better, and more even-handedly. They think they can do everything better and more even-handedly. Already, they're considering a "Fair Elections Now Act" to overturn the Supreme Court decision. But the Constitution couldn't be clearer when it comes to Congress' deciding what you can and can't say during an election. The Constitution says Congress shall make "no law" on that subject.
And even with the risks involved, you should be thankful that five stalwarts lined up to say: "What part of 'no law' don't you understand?"
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