Jewish World Review Oct. 18, 1999 /8 Mar-Cheshvan, 5760
Is Free Speech
Only for the Media?
THE MEDIA ARE MISSING a scandal because the media are the scandal. They
are complicit with the portion of the political class attempting to impose on
the public, in the name of campaign finance reform, speech restrictions of
the sort from which the media are immune. But the rationale for this
immunity, as explained by the Supreme Court in the First Amendment case
most cherished by the media, refutes the argument for the campaign
reforms most of the media favor.
The Senate is debating the McCain-Feingold bill to ban "soft money"
contributions to political parties. Such money can be used only for certain
purposes, such as issue ads, voter registration and turnout drives, and
cannot be spent in support of particular candidacies for federal offices.
One possible effect of outlawing soft money might be what the reformers
desire: reducing corruption or the appearance of it. One certain effect is a
diminution of political communication, exhortation, argument--in a word,
In the 1976 Buckley vs. Valeo ruling, the Supreme Court struck down
limits on what candidates could spend, arguing on First Amendment
grounds that money is indispensable to political communication, so limiting
spending limits speech. That ruling was a direct descendant of a 1964
ruling, New York Times vs. Sullivan, which began when the Times
published a political advertisement that supported civil rights groups in the
The ad communicated information, expressed opinions, cited grievances
and alleged abuses. An elected city commissioner in Montgomery, Ala.,
filed a libel action against the Times' publisher and some clergymen whose
names appeared in the ad. An Alabama court awarded the commissioner
$500,000, and the case went to the U.S. Supreme Court, where Justice
William Brennan, writing for a unanimous court, reversed the Alabama
He said the judgment violated the "profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and
wide-open, and that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials." Indeed,
"neither factual error nor defamatory content" nor a combination of those
"suffices to remove the constitutional shield" from political speech such as
Today many in the media, comfortable behind that shield, urge Congress to
impose speech-regulating measures that must mean less "uninhibited,
robust and wide-open" debate. The media's influence increases as the
political speech of everyone else is brought under an increasingly complex
regime of regulation. Also, the media's enthusiasm for speech-regulating
reforms is applied liberalism, the impulse to have the state put a leash on
everything, in the name of equality.
But defenders of unfettered speech should not support raising the $1,000
limit legislated in 1974 and allowed to stand by the court in 1976. Because
the real value of $1,000 has declined as the costs of campaigning have
risen, the limit forces candidates to spend disproportionate amounts of their
time raising money in dribs and drabs.
But to acquiesce in raising the $1,000 limit would be to endorse the
insupportable--the principle that limits on giving, unlike those on spending,
are compatible with the Constitution. Here, worse is better: the more such
limits on contributions make life difficult for the political class, the more
likely that class is to throw up its hands and, as a last resort, do the right
thing--deregulate political speech.
The time is not ripe for the audacious concept that Congress shall make no
law abridging freedom of speech. Meanwhile, the prize for perverse
audacity goes to Arizona's reformers, who persuaded voters to approve,
by a slender majority, a campaign financing system, the awfulness of which
only begins with partial public funding and a 20 percent reduction in
existing state limits on private contributions. To discourage independent
groups from participating in politics, extra public funds are given to
candidates when independent groups campaign against them.
The pot of money for Arizona candidates is filled in part by a $100 annual
fee on certain lobbyists--those who represent for-profit entities or trade
associations. This is constitutionally dubious because it conditions the
exercise of the First Amendment right to petition for redress of grievances.
In addition, there is a 10 percent surcharge on all civil and criminal
judgments. So when on June 9 Steve May got a $27 parking ticket in
Tempe, he sent the city a check for $24.30, subtracting the coerced
political contribution. May thereby practiced what Jefferson preached: "To
compel a man to furnish contributions of money for the propagation of
opinions which he disbelieves, is sinful and
Comment on JWR contributor George Will's column by clicking here.
10/14/99: A Beguiling Amateur
10/11/99: Money in Politics: Where's the Problem?
10/08/99: Soft Thinking On Soft Money
©1999, Washington Post Writer's Group