The First And The Worst
This case is infuriating, but that's only because the underlying law is so awful.
The Supreme Court has to decide if a 90-minute documentary about Hillary Clinton can be banned before an election, the same way an ad can under campaign finance law. The New York Times describes it as a "quirky" case, but this is right down the middle, exposing what McCain-Feingold is all about:
Several of the court’s more conservative justices reacted with incredulity to a series of answers from a government lawyer about the scope of Congressional authority to limit political speech. The lawyer, Malcolm L. Stewart, said Congress has the power to ban political books, signs and Internet videos, if they are paid for by corporations and distributed not long before an election.
Why weren't all nine justices shocked? THE GOVERNMENT MAY NOW BAN BOOKS! Doesn't that sound at least a bit troubling?
Mr. Stewart added that there was no difference in principle between the 90-minute documentary about Mrs. Clinton, “Hillary: The Movie,” and a 30-second television advertisement.
I agree. This is why the government should not be allowed to regulate political commercials.
Justice David H. Souter quoted snippets of the film’s characterization of Mrs. Clinton, who was running for president and is now secretary of state.
“She is ruthless, cunning, dishonest, do anything for power, will speak dishonestly, reckless, a congenital liar, sorely lacking in qualifications, not qualified as commander in chief,” Justice Souter recited.
“I mean,” he concluded, “this sounds to me like campaign advocacy.”
Absolutely. Just like a Michael Moore film or an editorial in the corporation-backed New York Times.
Chief Justice John G. Roberts Jr. asked whether it would make a difference if a 500-page book had a single sentence in it that said “vote for X.” [....]
If corporate money were used to pay for the book [...], Mr. Stewart said, Congress would have the power to ban them before elections.
Because, as we all know, Uncle Sam is a great literary critic, and should be allowed to read every book to decide which ones can be published.
Justice Breyer tried to steer the conversation away from speech and toward money.
As well he should. Anything to avoid the clear consequence of the law. Just keep repeating it's all about regulating money (in ways that have the effect of banning speech).
“We are dealing with a constitutional provision, are we not, the one that I remember which said Congress shall make no law abridging the freedom of the press?” Justice Scalia asked. He was referring, of course, to the First Amendment.
I wish we could say "of course." Seems to me the First Amendment has been forgotten here.
posted by LAGuy @ 12:15 AM
4 Comments:
I thought the gov lawyer was deliberately overplaying his hand in the hopes that the implications of his words would force the justices to recognize the threat and strike it down. Oof course maybe he wants the gov's power to be abundantly clear. If so, he was being a little clunky.
McCain/Feingold has caused me the greatest pause in supporting McCain for years. I have always thought the law was horribly overreaching and unconstitutional, and it is infuriating how long it has taken it to get struck down (piece by oiece) by the S.Ct.
Luckily, the bill of attainder directed at AIG bonus receivers is losing some support, so may not become law. Otherwise, how many years before the S.Ct would get around to reminding Congress that it is not allowed to use legislation to score populist political points against specific individuals and classes of citizens.
This was not a strategem from the government lawyer. He had to say what he said because there is no way to make a distinction between a limited application of the law and wholesale denial of basic First Amendment rights. It's not a case of "overreaching" it's a case where the basic principle behind the law is no good and can't be fixed by making its grasp a bit smaller.
The second anon. is correct. The First Amendment is a really tough concept to be a "moderate" about, because anything far short of absolutism is necessarily intellectually inconsistent and ad hoc. It often (always?) comes down to "yeah, but this isn't about 'pure' speech," as though there is any such defensible distinction.
I once had a colleague pose the hypothetical "what if someone were rich enough to buy all the advertising on every tv station for 6 months prior to the election?" I said that I fully supported that hypothetical person's right to do so, and I would appreciate him making it so easy to decide to vote against him.
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