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June 25, 2007


Let's be fair about one thing - political speech is a lot more central to the purpose of the First Amendment than student speech. If we're not going to be absolutists, then it makes sense that we would look more warily at government restrictions on political speech which occurs in the context of an election.

As Scott suggests at TAPPED, today's decision on taxpayer standing seems to be the appropriate target for knee-jerk criticism. Anyone can write an arbitrary decision, but the doctrine of standing is where the clever judicial activist does his dirty work.

Steve is right. The Court's liberals have gotten into this strange, bizarro, mirror world in which a minor's speech urging drug use (and, for that matter, nude dancing and child pornography) is given more free speech protection than adult citizens who attempt to participate in democratic deliberation.

The political speech and donation cases are always a challenge. There is no realistic way to protect free speech and control spending. It is difficult, but not impossible, to create ways to give challengers a more even playing field.

Still, despite my complete disagreement with WRTL, I don't have a horrible reaction to the result as long as there aren't a bunch of astro-turf organizations creating themselves to bypass the law. There will be.

What might we be able to do? First, and most importantly, only American citizens can donate money to any polical campaign. All such donations must be made public electronically within 24 hours of receipt/processing. Second, issue advertising must be a routine part of the operation of the organization and any donations made for these ads must also be made public in the same way that political donations are made public. More generally, any organization that airs issue ads or lobbies, must provide a public record of the donations they received and all money used for issue ads must come from individuals. Neither policitians nor lobbying groups should be allowed to accept any anonymous or corporate money for political advertising.

Speaking of issue advertising: I'm sure that CNN appreciates that the airlines and the general aviation crowd are advertising against each other concerning traffic control tax pricing, but my conclusion after spending far too many hours in DTW the past few days is that both groups need to get their taxes raised, just because they are so annoying.

From my perspective, the Constitutional protection on free speech is about political speech at its core. Questions of obscenity and the like are difficult mainly because we find it so difficult to draw the line at where political speech ends and commercial or other speech begins. We've pretty much given up on drawing that line. I'm (mostly) ok with that.

But that is why campaign restrictions really annoy me. Political speech is the most important thing being protected. If campaign speech can be restricted, why would anyone believe that obscene speech could be protected or that a minor's right to speech in a school setting could be protected? If the 1st amendment doesn't even protect at the core of the speech right, why would you think it would protect anywhere else? It gets the whole concept of free speech turned on its head.

For what it's worth, the high school student in the Bong Hits 4 Jesus case was not a minor; he was 18 when he engaged in his activity on a public street.

In my heart of hearts, I have never seen why campaign contributions ought to count as speech. I do see, of course, that it's important not just to be allowed to speak in a forest somewhere where no one can hear you, but to make your voice heard. What I don't see is why the combination of allowing you to, well, speak and write and produce your own You-Tube videos or campaign ads without coordination with the campaign, and allowing you to give several thousand dollars to the campaign, does not accomplish the worthy goal of allowing you not just to speak, but to be heard.

"In my heart of hearts, I have never seen why campaign contributions ought to count as speech."

I would say that it is about the intersection of two of the most important political liberties--free association and speech.

My practical take on it is that you absolutely can't ban the ACLU or NRA or Sierra Club from making pseudo-uncoordinated ads and still have anything remotely like free speech. You also can't touch money to help do that. So that leaves some sort of coordination line to police, and it just isn't worth trying to do it. If you police it closely at all you will be chilling legitimate uncoordinated speech.

And in any case writing and producing your own campaign ads is one of the things McCain-Feingold try to ban before the elections

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