In honor of Draw Muhammad Day, I present this picture of Muhammad… or an impostor. At this point, I’m just not sure.
I strongly encourage you to post your own drawing of Muhammad. Please, stand up for freedom of speech!
In honor of Draw Muhammad Day, I present this picture of Muhammad… or an impostor. At this point, I’m just not sure.
I strongly encourage you to post your own drawing of Muhammad. Please, stand up for freedom of speech!
On Tuesday, Ayaan Hirsi Ali, the author of the stellar book Infidel, published an excellent op-ed in the Wall Street Journal on the informal fatwa against South Park creators Trey Parker and Matt Stone. Here’s why the supposed warning message posted by 20-year-old Muslim covert “Abu Talhah Al-Amrikee” was a fatwa:
There is a basic principle in Islamic scripture—unknown to most not-so-observant Muslims and most non-Muslims—called “commanding right and forbidding wrong.” It obligates Muslim males to police behavior seen to be wrong and personally deal out the appropriate punishment as stated in scripture. In its mildest form, devout people give friendly advice to abstain from wrongdoing. Less mild is the practice whereby Afghan men feel empowered to beat women who are not veiled.
By publicizing the supposed sins of Messrs. Stone and Parker, Mr. Amrikee undoubtedly believes he is fulfilling his duty to command right and forbid wrong. His message is not just an opinion. It will appeal to like-minded individuals who, even though they are a minority, are a large and random enough group to carry out the divine punishment. The best illustration of this was demonstrated by the Somali man who broke into Mr. Westergaard’s home in January carrying an axe and a knife.
So what can we do? Ms. Ali has some good suggestions for what we might do to stand up for freedom of speech:
One way of reducing the cost is to organize a solidarity campaign. The entertainment business, especially Hollywood, is one of the wealthiest and most powerful industries in the world. Following the example of Jon Stewart, who used the first segment of his April 22 show to defend “South Park,” producers, actors, writers, musicians and other entertainers could lead such an effort.
Another idea is to do stories of Muhammad where his image is shown as much as possible. These stories do not have to be negative or insulting, they just need to spread the risk. The aim is to confront hypersensitive Muslims with more targets than they can possibly contend with.
Another important advantage of such a campaign is to accustom Muslims to the kind of treatment that the followers of other religions have long been used to. After the “South Park” episode in question there was no threatening response from Buddhists, Christians and Jews—to say nothing of Tom Cruise and Barbra Streisand fans—all of whom had far more reason to be offended than Muslims.
Along these lines, Ari Armstrong has launched an Everybody Draw Mohammed campaign. I’ll be posting my contribution sometime next week — and I hope that you will do the same.
The lead article of the Spring 2010 issue of The Objective Standard is by Steve Simpson of the Institute for Justice. His article is entitled, “Citizens United and the Battle for Free Speech in America“.
The editor, Craig Biddle, has graciously made the full article available for free to non-subscribers.
As Simpson notes:
This is the battle at the heart of campaign finance laws. On one side is the view, held (albeit imperfectly) by most challengers of such laws, that the First Amendment protects an individual right to freedom of speech. On the other is the view, held by advocates of campaign finance laws, that the First Amendment protects speech only insofar as it serves, or at least does not thwart, equality of influence over the political process. In the middle is the Supreme Court, which has wavered between these poles, but, unfortunately, has all too often sided with the egalitarians.
The Supreme Court’s decision in Citizens United, the latest skirmish in this battle, was a substantial victory for the individual rights interpretation of the First Amendment. To understand the significance of this ruling, we must begin by surveying the most relevant history of campaign finance laws. Then we will turn to the Citizens United decision itself, the controversy it ignited, and what the Court’s ruling means for freedom of speech and the future.
Read the full text of “Citizens United and the Battle for Free Speech in America“.
I really enjoyed this article because Simpson nicely laid out the opposing premises of both sides of the campaign finance debate and showed how they have played out in a series of laws and court decisions. If we have any chance of moving our country in the right direction by peaceful means, it will be by exercising our right to free speech. Hence anyone interested in the future of America should read this excellent article.
(As a matter of shameless self-promotion, the Spring 2010 issue also contains a book review by Ari Armstrong and a health care article by myself. A shorter version of my TOS article also appeared in PajamasMedia with Craig Biddle’s permission under the title, “ObamaCare vs. the Hippocratic Oath“.)
Steve Simpson of the Institute for Justice was kind enough to post his thoughts on the significance of the recent Supreme Court decision on campaign speech in the comments on my post Freedom of Speech, Somewhat Restored. I thought them worth reproducing in a blog post of their own. Here’s what he wrote:
Thanks for posting our release, Diana. I thought folks my be interested in a few additional thoughts on why this decision is so significant. No Supreme Court decision is perfect, and this one is far from it from a strict philosophical standpoint. But judging from where we were, it is a very significant step forward. The importance of this decision goes beyond its basic holding, which is that the government cannot prevent corporations from spending money on their own independent speech during elections. Corporations now have the same rights to spend unlimited sums on independent advocacy as individuals do. A corporation is simply a voluntary association of individuals. It has the same “rights” that the individuals do; no more, and no less. The Supreme Court recognized that basic point, which is very important.
But the Court’s reasoning was also very good in many respects. Those who have heard Eric Daniels’s excellent lecture on the First Amendment know that the Supreme Court has treated the freedom of speech primarily as a means to the end of promoting “democracy” rather than as an inviolable individual right. The history of campaign finance law has been a march toward the logical conclusion of this premise, which is complete government control over political speech. This is the reason that campaign finance jurisprudence is so important–because the consequences of the court’s approach are so apparent in this area (and because elections are the path to political power, which is the reason the left cares so much about campaign finance law). (Incidentally, recall what Ayn Rand said about free speech in Censorship: Local & Express–that leftists are willing to leave speech relatively free because they want to control the material realm, while the right is the opposite. In my view, that dynamic is reversed in campaign finance law, both because it involves the regulation of money and because the left recognizes campaigns and elections as the path to political power. But I digress).
The Court unfortunately did not reject this approach, but it did emphasize much more than it ever has before that the First Amendment protects the rights of individuals to speak, to organize, and to think for themselves. The battle on this front is by no means over, but we now have some very good ammunition to use in the future.
The Court’s approach was also surprisingly principled and objective. For instance, it recognized that the means of exercising one’s freedom of speech (e.g., money, the corporate form) must be protected if the right to free speech is to be protected; it understood that requiring a corporation to speak through a separate legal entity that is separately funded is a denial of the corporation’s right to speak as is conditioning the right on compliance with complex regulations (A is A); it rejected as irrelevant the fact that many of the Founders apparently disliked or didn’t trust corporations and the fact that the “media” that existed in the founding era consisted of small newspapers and pamplets, rather than gigantic corporations. As Chief Justice Roberts put it in his concurrence, “the First Amendment protects more than the individual on a soapbox and the lonely pamphleteer.” (Remember Rockwell’s “Four Freedoms” painting, with freedom of expression represented by a humble looking man standing in a town meeting with his hat in his hand? That is the left’s view of free speech. Speak as much as you want, as long as it won’t affect anything).
In sum, Citizen’s United is not just a very good campaign finance decision, it is a very good First Amendment decision (in my view, one of the best ever). It gives us a great deal to use on many fronts, and we will use it all to good effect.
Steve Simpson also wrote an op-ed on the case for Pajamas Media: Protecting the Marketplace of Ideas. It’s a good overview and analysis of the case.
Also, Julian Sanchez wrote a biting analysis of the practical implications of the common leftist view that corporations shouldn’t have the right to free speech because they’re legal fictions rather than real persons. He imagines what would happen if we accepted that view fully:
Having dispensed with the repellent doctrine of corporate personhood, we can happily declare that journalists enjoy full freedom of the press … as long as they don’t plan on using the resources of the New York Times Company or Random House or Comcast, which as mere legal fictions can be barred from using their property to circulate unpatriotic ideas. You’re free to practice your religion without interference — but if it’s an unpopular one, well, let’s hope you don’t expect to send your kids to a religious school or build a church or something, because those tend to involve incorporating. A woman’s right to choose is sacrosanct, but since clinics and hospitals are mere corporations with no such protection, she’d better hope she knows a doctor who makes house calls. Fill in your own scenarios, it’s easy.
That’s a wonderful reductio ad absurdum for precisely the reason identified by Steve Simpson said in his Pajamas Media op-ed:
Corporations are groups of individuals and have the same rights to speak as the individuals who make them up, no more, no less. The fact that state laws affect corporate status cannot be a basis for regulating them, any more than it could be a basis for deciding that married couples, partnerships, or membership organizations are not allowed to speak. Nor can it matter that any group’s views may not “correlate” with the views of the public. The First Amendment exists to protect dissent. No one ever wishes to limit speech with which they agree.
After so many years of political disaster, I’m enjoying these few rays of political sunshine.
Wow, this Supreme Court decision sounds like very good news for free speech. Direct campaign contributions are still limited, but the decision “removes limits on independent expenditures that are not coordinated with candidates’ campaigns.” Wowowowow. That’s huge.
It’s a sad sign of the times, however, that the decision was 5-4.
I look forward to hearing what the good folks at the Institute for Justice — and Eric Daniels — have to say about the decision.
Update: Here’s the e-mail about the case that I just got from IJ:
U.S. Supreme Court Rules in Favor of Free Speech In Citizens United Case
Today’s Ruling Lets Corporations Speak, But Other Battlefronts Remain
Today, the U.S. Supreme Court announced a landmark victory for free speech, making clear in Citizens United v. Federal Election Commission that under the First Amendment the government cannot stifle dissent by restricting the right of corporations to spend money on independent political speech.
Justice Kennedy, writing for the Court, emphasized that the government’s ban on corporate speech was censorship, pure and simple: “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful.” He added, “The First Amendment confirms the freedom to think for ourselves.”
“This is the most significant First Amendment decision from the Supreme Court in more than a decade,” said Steve Simpson, an Institute for Justice senior attorney who authored the Institute’s amicus brief in Citizens United. “The Court has finally struck down blatant censorship that masquerades as campaign finance reform. Slowly but surely, the Court is prying Americans’ free speech rights away from the hands of government bureaucrats. The words of the First Amendment–’Congress shall make no law . . . abridging the freedom of speech’–demand nothing less.”
The Court overturned a case that had severely limited corporate political speech: Austin v. Michigan Chamber of Commerce, which said that governments could ban corporations from independently speaking out about political candidates. It also overturned parts of McConnell v. FEC, which upheld a ban on “electioneering communications”–corporate- or union-funded broadcast ads that merely mention a candidate shortly before an election.
The Court did so because it recognized, as the Institute for Justice explained in its brief in the case, that speech bans like these inevitably embolden politicians and self-styled “reformers” to call for even more censorship, such as banning corporate-funded films about candidates, like the nonprofit Citizens United’s Hillary: The Movie, or even corporate-funded books if they attack or support a candidate.
In today’s opinion, the Court ruled that everyone, including corporations, has the right to speak out about issues and candidates. The government may not restrict the marketplace of ideas: “The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.” In other words, the First Amendment rejects government paternalism, instead “entrusting the people to judge what is true and what is false.”
“Politicians hate criticism and so they sought to heavily regulate–if not ban–the most effective political speech against them,” said Chip Mellor, IJ’s president and general counsel. “Governments have aimed the campaign finance laws at corporations precisely because they can speak effectively. By overturning Austin and McConnell, the Court has taken a critical first step to restoring robust constitutional protections for free speech.”
In today’s decision, although the Court upheld the disclosure provisions that applied to Citizens United, it cited the amicus brief of the Institute for Justice in noting that the “threats, harassments, or reprisals” that disclosure of donors’ identities can generate are a “cause of concern.” Thus, the Court left open the possibility that other groups engaged in debate on controversial issues could successfully challenge the disclosure provisions.
So-Called “Fair Elections Now Act”
Anticipating today’s ruling, those advocating campaign finance restrictions have already begun promoting new regulations to “deal with” the freeing of more Americans to speak about politics. One proposal, the “Fair Elections Now Act” in Congress, would publicly fund the campaigns of those who run for federal office, while imposing a host of complicated regulations on candidates and their supporters. (For a 72-second video on FENA, visit: www.ij.org/FENAvideo.)
“Today, the Court made clear that under the First Amendment, free speech is not a problem to be solved with government bans and red-tape; it is a fundamental right enjoyed by all Americans,” said Simpson. “This is a message that congressional proponents of the so-called Fair Elections Now Act–yet another proposal by politicians to stifle speech that threatens their re-election–need to hear.”
Moreover, as IJ Senior Attorney Bert Gall noted, there is nothing to fear from corporate political speech: “Companies do not speak with one voice; instead, they represent a wide variety of viewpoints from across the ideological spectrum. So while Wal-Mart may speak out in favor of politicians who support health care reform, other retailers such as Whole Foods may do the opposite. And if Chrysler runs ads on behalf of candidates who won it favorable bankruptcy treatment, institutional investors whose bonds were rendered worthless can now criticize those same politicians. The result is a free-wheeling and uninhibited debate, which is just what the First Amendment is meant to provide.”
The Next Big Free Speech Cases
Two other cases will give the courts the opportunity to take additional steps toward freeing speech from burdensome and unnecessary campaign finance laws. SpeechNow.org v. FEC, which will be argued in front of the entire D.C. Circuit Court of Appeals on January 27, 2010, involves a challenge to a federal law that forces people to sacrifice the First Amendment right to associate in order to exercise the First Amendment right to speak. SpeechNow.org is a group of citizens who wants to band together, pool resources and run ads favoring some candidates and opposing others. But while each person on his own could spend as much as he wants, the law says no one can contribute more than $5,000 to the joint effort. Along with the Center for Competitive Politics, IJ represents SpeechNow.org.
In Sampson v. Buescher, a group of neighbors who were sued for speaking out against the annexation of their neighborhood into a nearby town have challenged Colorado’s burdensome campaign finance regulations of ballot issue advocacy. Under Colorado law, groups that spend as little as $200 speaking for or against a ballot issue must register with the state and disclose the identities, addresses and often employers of anyone who contributes more than $20 to their cause. IJ represents the neighbors in the case, which is currently before the 10th Circuit Court of Appeals.
The Institute for Justice defends First Amendment rights and challenges campaign finance laws nationwide. In May 2009, the Institute secured a federal court ruling striking down Florida’s electioneering communications law, and IJ previously won a ruling in the Washington Supreme Court that stopped an attempt to regulate media commentary as “in-kind” political contributions. IJ is currently challenging laws in Colorado that suppress speech about ballot issues by grassroots groups and nonprofit organizations, as well as Arizona’s “Clean Elections” law for funding political campaigns with taxpayer dollars. For more information, visit www.ij.org/FirstAmendment.
I haven’t written a letter to the editor in ages, as my brain has simply been too thoroughly occupied with other work. However, I’m deeply worried about the erosion of free speech in America, so I dashed off this letter to the Denver Post a few days ago. Much to my delight, it was published today:
Re: “A double standard for online speech,” Oct. 14 Vincent Carroll column.
Vincent Carroll is right to warn us about the Federal Trade Commission’s new regulations on bloggers who review or endorse products. For too long, Americans have ignored the First Amendment in the name of “fairness” by supporting an ever-growing labyrinth of regulations on political campaign speech.
Now the government seeks to bind and gag online speech based on the same egalitarian principles.
The effect will be a frosty chill on all speech. Soon, only those able to afford a gaggle of lawyers will dare speak on any issue more substantive than tomorrow’s weather.
In the words of Ayn Rand’s hero Francisco D’Anconia, “Brother, you asked for it!”
Diana Hsieh, Sedalia
Adam Ostrow of Mashable reports on dangerous new regulations on speech:
Bloggers now have up to 11,000 reasons to disclose when they are being paid to review products.
The [Federal Trade Commission] has updated its Guides Concerning the Use of Endorsements and Testimonials in Advertising for the first time since 1980, and among the changes, a requirement that “bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.” Fines for violating the new rule will run up to $11,000 per post.
Here’s the critical portion of the announcement from the FTC:
The revised Guides also add new examples to illustrate the long standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers — connections that consumers would not expect — must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service. Likewise, if a company refers in an advertisement to the findings of a research organization that conducted research sponsored by the company, the advertisement must disclose the connection between the advertiser and the research organization. And a paid endorsement — like any other advertisement — is deceptive if it makes false or misleading claims.
Observe that the FTC openly declares that its decisions will not be based on any objective principles, knowable in advance. Rather, “decisions will be reached on a case-by-case basis.” Moreover, Ostrow rightly observes that the regulations would not merely concern simple exchanges of money for good opinions but might also concern any kind of benefit:
Beyond straight up pay-per-post systems like Izea, it the new rules would seemingly apply to any situation where something of value changes hands between advertiser and blogger. For example, General Mills and Ford Fiesta bloggers would have to disclose the relationship they have with the advertiser.
But then, to my amazement horror, Ostrow endorses these regulations!
Certainly, it seems like this is an update that’s time has come. While most well-run social media programs already include appropriate disclosure, there’s still no shortage of unscrupulous marketers using deceptive practices to sell products. Now, with the threat of serious fines, those who look to push the boundaries of ethical blogging will be doing so at their own risk.
Ugh. Here’s my view, posted on Mashable and elsewhere:
In the name of “openness” and “disclosure,” free speech is being slowly destroyed in America. If the government were burning books, people would be up in arms. However, the statists — left and right — are crafty. Instead of outright bans, they prefer regulations.
We’ve already seen this happen with the massive regulations on political speech. In many states, including my own Colorado, ordinary people cannot speak out about candidates or ballot measures due to very confusing disclosure laws enforced by heavy fines.
Now the federal government plans to threaten bloggers with massive fines based on the whims of bureaucrats — who will soon, I guarantee you, write pages and pages of uber-dense and convoluted rules about what counts as “a review” or “payment” and the required form of the disclosure. Soon, almost any speech about a product will be regulated. Oh, how the large producers of crappy products will love that! They’ll soon be lobbying the government for further restrictions and regulations.
The inevitable result will be that many honest bloggers will stop discussing products entirely — or they’ll stop blogging. Seriously, how many bloggers make enough money to cover the potential fines? How many bloggers will have the time and the fortitude to read through all the regulations, to know whether they’re complying or not with them? Many other people will not start a blog; it would be too much trouble — and too risky.
Gee, do you think that will benefit consumers? Do you think the result will be better information about products on blogs? Of course not!
Do not be surprised by that. In fact, the aim of the government is not to protect us from those few dastardly reviewers who accept money on the side in exchange for positive reviews. The aim of the government is to control what we think and what we do by regulating the marketplace of ideas to its death. They’re doing an excellent job of that — and most Americans are blind to the danger.
Folks, this ruling is very, very dangerous. Make a stink, if you care for your freedom.
Could These Books Be Banned?
As Supreme Court Considers Ban on “Hillary: The Movie,” Institute for Justice Asks if First Amendment Protects “Top Ten” Political Books
Arlington, Va.–What do Bill Clinton, Peggy Noonan, John Kerry, Michael Moore, Maureen Dowd and Swift Boat Veterans for Truth founder John O’Neil have in common?
All wrote books that could have been banned, just like “Hillary: The Movie,” the film at the heart of the campaign finance case Citizens United v. Federal Election Commission. The U.S. Supreme Court will hear new arguments in the case Wednesday, Sept. 9, in an unusual session ordered after justices appeared troubled by the government’s suggestion during the first oral argument that it could ban corporate-funded books. Indeed, Democracy 21 President Fred Wertheimer, a leading advocate of campaign finance regulations, admitted this week to The New York Times, “A campaign document in the form of a book can be banned.”
Today, the Institute for Justice released a “top ten” list of political advocacy books from the last four presidential election cycles and asked: If the First Amendment doesn’t protect “Hillary: The Movie,” would it protect books like these?
To find out its list of ten books, go read the press release. It’s a great press release, I think. It does not merely state its view. It intrigues readers by presenting striking concrete effects of a bad court decision, then invites them to think seriously about the principles of free speech:
“Speech is speech, no matter who is speaking, who funds it or in what form it comes,” continued Simpson. “The same ideas do not become dangerous because they are funded by corporations or because they appear in an ad or film instead of a book or newspaper. The Supreme Court must return to first principles and protect all speech, regardless of the speaker, and overturning Austin and McConnell is a critical first step.”
“Political ads, books and films, like ‘Hillary: The Movie’ or Michael Moore’s ‘Fahrenheit 9/11,’ contribute to a robust and healthy debate, and they all deserve the fullest protection of the First Amendment,” said IJ Senior Attorney Bert Gall. “What’s at stake in Citizens United is whether the First Amendment protects this speech from censorship if Congress decides that it prefers silence over debate. The Supreme Court should reject censorship and open the floodgates to all speakers–and then let citizens and voters decide for themselves.”
While I do think that a proper philosophical defense of freedom of speech needs to dig deeper, that’s obviously sufficient for a press release.
So… keep up the good work, IJ!
I meant to post this op-ed some weeks ago, but it got lost in the shuffle. Better late than never!
“Campaign finance laws stifle speech” by Steve Simpson
Published on June 27th in The Colorado Springs Gazette
The Colorado Supreme Court recently turned down an opportunity to vindicate the First Amendment right to speak about politics without government getting in the way. That is bad news for Coloradans, but the case, a challenge to the campaign finance laws brought by the Independence Institute, places Colorado on the forefront of a growing battle over speech about campaigns.
Colorado, like the other 23 states that allow citizen initiatives, requires groups that wish to speak out for or against ballot issues to register with the state and to report contributions and expenditures – that is, to report detailed personal information about supporters and chronicle the group’s political activities.
The nonprofit Independence Institute learned about these laws the hard way when it criticized Referenda C and D in 2005 and was promptly sued by a member of the campaign supporting the referenda who claimed the group had violated the campaign finance laws.
After spending thousands in legal fees defending itself, the institute brought its own suit challenging the laws under the First Amendment, but lost in both the trial court and the court of appeals. With the Colorado Supreme Court’s refusal to hear the case, the last option for the institute is an appeal to the U.S. Supreme Court.
The question in this case cuts to the heart of political freedom in this nation: Can states require citizens who wish to band together to speak out about political issues to register with the government and disclose the identities of those who support them?
Supporters of these laws claim that groups might influence the outcome of an election, and that is certainly true – indeed, that is usually the reason to speak out during an election.
But allowing individuals to influence the course of their government is one of the main reasons we have a First Amendment. Americans have relied on the right to organize and to speak – often anonymously – from the founding generation, though the debates over ratification of the Constitution on up to today.
If the “free” in free speech means anything at all, it means that individuals who organize and speak have the right to determine their message and what information they disclose about themselves. Listeners can always demand more information or disregard what they hear entirely. But requiring individuals to disclose their contributions for or against ballot issues is no different from requiring them to disclose their votes.
The Independence Institute’s case is not an anomaly. The same thing happened to a group of neighbors in Parker North, Colo., when they opposed the annexation of their neighborhood in 2006. They placed “No Annexation” signs on their lawns and were promptly sued by the proponents of annexation for failing to comply with campaign finance laws. A federal court found that “[b]y permitting this intimidation, Colorado’s campaign finance laws had the effect of stifling political speech in violation of the First Amendment,” but still refused to strike down the laws. That case is currently on appeal.
In California, during the debate over last year’s marriage amendment, both sides used information obtained from campaign finance laws to harass and intimidate their opponents. A case challenging the laws is currently pending in federal court.
Federal courts in Wisconsin and Florida have recently struck down similar laws under the First Amendment. As the court in Florida wrote, “While it is true that the legislature has the power to regulate elections, it does not have the power to regulate purely political discussions about elections.”
Despite the clear language of the First Amendment, the reality in America today is that to speak out about politics, you need more than an opinion – you also need a lawyer. Fortunately, courts are beginning to take notice of this sad fact, and we may soon see the day when free speech is once again a right, not a privilege.
Simpson is a senior attorney at the Institute for Justice, which represents the Independence Institute and the Parker North neighbors.
Wow, this news from the Institute for Justice is surprisingly hopeful:
FOR IMMEDIATE RELEASE:
First Amendment Blockbuster at the Supreme Court:
Court Orders New Arguments in Citizens United, Majority Appears Poised
To Strike Down Electioneering Communications and Corporate Speech Bans
First-Ever Study of Impact on Nonprofits Demonstrates Need
To Rein in Out-of-Control Speech Regulations
Arlington, Va.–The U.S. Supreme Court today ordered a new round of oral arguments in Citizens United v. FEC, the “Hillary: The Movie” case. The Court wants parties to address whether Austin v. Michigan, a case that bans certain political speech by corporations, including nonprofit corporations such as Citizens United, should be overturned. The Court also wants to consider whether part of McConnell v. FEC, upholding the so-called “electioneering communications” ban in McCain-Feingold, should likewise be overturned and the ban struck down entirely.
“The Court has set up a blockbuster case about Americans’ First Amendment rights to join together and speak freely about politics,” said Steve Simpson, a senior attorney with the Institute for Justice, which filed a friend-of-the-court brief in Citizens United v. FEC. “A majority of the High Court appears to recognize the grave threat to free speech posed by both the electioneering communications ban in McCain-Feingold and the ban on corporate political speech. This case could mark a significant advance for First Amendment rights and will have major implications for state laws nationwide.”
Indeed, a study released today shows the critical need to rein in speech regulations that have flourished since the Court upheld the electioneering communications ban in McConnell. At least 15 states have electioneering communications laws, and in many cases those laws regulate even more speech by more groups than the federal ban. Indeed, just last month, in response to a lawsuit filed by the Institute for Justice, a federal judge struck down Florida’s law. He noted that “no court has ever upheld such a sweeping regulation of political speech.”
The study is the first ever to examine the impact of speech regulations on the kind of nonprofit corporations at issue in Austin. The study shows that these laws impose on nonprofit groups a heavy regulatory burden for their speech and most lack the resources to comply. “Locking Up Political Speech: How Electioneering Communications Laws Burden Free Speech and Civic Engagement” by political scientist Dr. Michael Munger of Duke University is available at http://www.ij.org/citizensunited.
“Since McCain-Feingold, campaign finance regulation has exploded, leaving practically no room for free speech about politics,” said Bill Maurer, an attorney with the Institute for Justice and lead counsel for the Institute on its Citizens United brief. “With each new regulation, more citizens are shut out of the political process. That is why it is essential for the Court to revisit and indeed overturn Austin and McConnell.”
The Citizens United case came about because the Federal Election Commission banned the airing of “Hillary: The Movie,” produced by the nonprofit Citizens United, on cable TV and required the group to “name names” of the film’s backers by disclosing to the government detailed personal information about donors if the group ran TV ads for the film. At oral argument, justices appeared concerned that if the government could ban corporate-funded films about candidates, it could also ban books. Revisiting Austin and McConnell allows the Court to fully consider whether speech regulation has gone too far.
“The Court will now squarely confront the inevitable consequences of regulating political speech: If the government can ban ads, it can ban movies and books as well,” said Simpson. “But we don’t ban books in America. Once you start regulating political speech, there is no place to stop. This is exactly why the First Amendment forbids government from controlling and limiting speech in the first place.”
Simpson continued, “It takes money to speak effectively, so the right to free speech must include the right to spend money and raise money to make that speech heard.”
“Reconsidering Austin and McConnell is a critical start to fixing what is wrong with campaign finance regulation, but it should not be the end,” said Simpson. “The root of the problem stretches back 30 years to Buckley: the belief that some speech deserves government regulation simply because it advocates for one candidate over another. In America, we have the right to try to convince fellow citizens how to vote. It’s called ‘political speech,’ and it’s exactly what the First Amendment was designed to protect. We cannot fully protect First Amendment rights until the Court does away with the distinction between ‘good’ speech and ‘bad’ speech altogether.”
All my hopes are with Steve Simpson and the other good folks at the Institute for Justice! I am so grateful for their hard work hard to protect our rights — and for this ray of sunshine in the bleak landscape of American politics today.