Taking On and Defeating the Speech Censors  -- Part Two of Two

We’ve devoted Tuesday’s TN&V to an immensely important victory in the Supreme Court on behalf of free speech. While the Court’s decision in Federal Election Commission v. Wisconsin Right to Life Inc. is a milestone of sorts, it is hardly, as George Will warned in a column in today’s Washington Post, a final triumph. Will prudently reminded his readers that it would be “premature to say goodbye -- and good riddance -- to a law empowering government to regulate the quantity, content and timing of speech about government.” Why?

For one thing, the decision was 5-4. For another, those who wrote the law and who use the FEC as an attack dog against groups such as Wisconsin Right to Life (WRTL) are driven by a mentality that combines the loftiest sounding rhetoric with the basest determination to keep politicians from actually having to hear from their constituents.

All Wisconsin RTL tried to do in 2004 was encourage citizens to contact their two senators--Feingold and Kohl--to tell them to oppose the filibuster of President Bush’s judicial nominees. But part of the infamous 2002 McCain-Feingold law forbids what the law expansively calls “electioneering communication”-- a radio or TV ad that "refers to" a candidate for federal office--within 30 days of a primary or 60 days of a general election. (McCain-Feingold did not forbid using a can with a string attached to it, but that was only because they forgot.)

Will makes an immensely important point: this “blackout period silences speech when it matters most.”

In addition, there was nothing in the three ads WRTL wanted to run during the blackout period that (to a fair-minded person) could be remotely construed as “express advocacy”—telling people to vote for or against a candidate (in this case Sen. Feingold who was up for re-election.) The ads were about issues

In his majority opinion Chief Justice John Roberts calmly made this distinction in a thoughtful and convincing manner. He also dealt at length with something that was at core at the speech police’s argument and which is extremely dangerous.

Will summarized this brilliantly. “McCain and his acolytes argue that issue ads such as WRTL's will be discovered to be electioneering communications if speech regulators delve deeply enough into the actual intent of those running the ads or if the regulators calculate the ads' likely effect.'

The obvious response is, oh my gosh. If the plain words that I use mean nothing—if they can be tossed into the recycling bin and replaced with what someone else thinks I mean--none of us is safe.

I’ve also written about Federal Election Commission v. Wisconsin Right to Life Inc  in the July issue of NRL News. On the off-chance you are not a subscriber, please call Regina at 202-62608828 and we’ll get you signed up right away.

Will’s wonderful column can be read  at www.washingtonpost.com/wp-dyn/content/article/2007/06/27/AR2007062701823.html

If you have any comments or questions, please write Dave Andrusko at daveandrusko@hotmail.com.

Part One