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Words Matter under Wisconsin Right to Life

The Supreme Court narrowly took some speech and the right to petition the government off “double secret probation” in Wisconsin Right to Life v. Federal Election Commission.  The 5 – 4 decision of 96 pages, including one dissenting and two concurring opinions, shows that the First Amendment is still, unfortunately, in a sad state.   

By far the most interesting observation made by Chief Justice Roberts in his majority opinion was a knock against the Supreme Court itself he wrote, seemingly to emphasize his point, towards the end of his opinion.  “As is often the case in this Court’s First Amendment opinions, we have gotten this far in this analysis without quoting the Amendment itself: ‘Congress shall make no law . . .  abridging the freedom of speech.’  The Framers’ actual words put these cases in proper perspective.”

The Roberts majority opinion is criticized by Justice Scalia’s concurring opinion for not establishing an actual criterion.  It is criticized by Justice Souter’s dissenting opinion for not allowing the government to peer into the souls of speakers, and failing to meet the First Amendment standards established by The Washington Post.  Its importance, however, may be that it lodges First Amendment analysis back inthe First Amendment itself.

WRTL is a nonprofit that wanted to air television ads urging Wisconsin citizens to contact their two U.S. senators to oppose judicial filibusters.  One senator was up for reelection that year.  That sounds clearly in the First Amendment strike zone.

The McCain-Feingold campaign finance law, though, required a blackout of certain broadcast ads mentioning the names of federal candidates, called “electioneering communications,” within 30 days of a primary election and 60 days of a general election.  That is outright censorship of political speech, but in the McConnell v. FEC court challenge to McCain-Feingold, the Supreme Court ruled that such mandatory blackouts were constitutional on their “face,” meaning the court declared such censorship constitutional as a matter of law.

The WRTL case applied this “constitutional” censorship law to a set of facts.  While the Roberts’ majority opinion treads through complex, court-created “standards of review” to declare this law unconstitutional as applied, one must see that the law once declared constitutional lost precisely because Roberts brought the words of the First Amendment itself to bear on this decision.

Without grounding in the actual text of the First Amendment itself, use of judicial standards of review has evolved to become of little consequence since, more and more, the burden of proof seems to be falling on speakers rather than on the government.  That has eroded the very essence of the First Amendment.

At fault in this erosion of the First Amendment is not just the Congress, which the Framers anticipated would want to silence critics, but the courts for abdicating their basic obligation to ground their decisions in the text of the Amendment.  The courts have enabled layers of unelected government officials to control the flow of information to citizens through censorship and suppression of private speech.  That helps bureaucrats aggrandize their own power in all areas, but helps protect incumbent politicians in elections.

Former FEC commissioner Brad Smith makes a compelling case about how the FEC’s bureaucratic enforcement has lost sight of targeting actual “corruptive” influences on politics, such as politicians demanding or accepting bribes (“The Speech Police,” Wall Street Journal, June 27, 2007 (subscription required)).

If McCain-Feingold was the Dean Wormer putting issue advocacy on double secret probation, the Federal Election Commission is the Neidermeyer relishing sinisterly in the task of making life miserable for others.

The key element of WRTL was whether it was appropriate for others such as the FEC to discern the “intent” of speakers.  If speakers meant to influence an outcome of an election, as determined by the FEC, that is subject to regulation under campaign finance laws, thus within the jurisdiction of the FEC to regulate and punish for failure to comply with the law.

The Court concluded, thankfully, that whether a speaker violated federal election law must be measured more objectively.  Only if an ad is susceptible to no reasonable interpretation other than as advocating a vote for or against a specific candidate, Roberts concluded, may the speech be considered “electioneering” subject to FEC regulation.

The FEC and a cluster of ideologically liberal organizations believe that they should second-guess speakers.   They want to determine which political thoughts may be expressed freely, which ones must be registered with the government, and which ones may be censored outright.  After all, what was good for Stalin and Mao should be good for America, right?

The WRTL decision, while helpful in trying to ground First Amendment jurisprudence back in the Amendment itself, shows that the First Amendment is a long way from being off life support just yet.  Big Government and its allies will still try to silence critics for political or financial gain.  Their attempts will contort logic, and will address First Amendment concerns only as a last resort, and always with reference to interpretations inconsistent with the plain language of that Amendment.  Just watch.

In calling to reinstitute the artfully but incorrectly named Fairness Doctrine, Senate Majority Whip Dick Durbin was recently quoted by The Hill saying, “I have this old-fashioned attitude that when Americans hear both sides of the story, they’re in a better position to make a decision.”  When he says “both” sides of the story, I presume he means the Democratic Party as one side, and “everyone else” is lumped in as the other side.

There are, obviously, many sides to any given issue, so Durbin’s logic is already faulty.  The Fairness Doctrine cannot be reconciled against the First Amendment.

There are people in America who think they know what’s best for us, and would be glad to shut up those who disagree.  That is why they try to evade the plain text of the First Amendment.

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Mr. Fitzgibbons is President of Corporate and Legal Affairs at American Target Advertising, Inc. in Manassas, VA. and a First Amendment lawyer specializing in grassroots law.

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