Friday, January 11, 2008

Free Speech and Hillary Clinton

I'm pretty sure I would have paid good money to watch this case before the DC Circuit. If nothing else it shows the arbitrariness of our campaign finance laws. The laws, as the DC Circuit seems set to rule, essentially amount to prohibitions on advertisements that say something that others might view as bad about a candidate. Since political speech is supposed to be the most protected form of speech, prohibiting people from speaking ill of a candidate in the most widely-disseminated forum without complying with various government regulations is patently offensive to free speech.

The rules generally restrict this kind of speech by independent groups close to an election, although a narrow exception was returned last year with the allowance of issue ads. Still, outright advocacy for or against a politician within the weeks leading up to an election (including a primary) are still banned. This leads to the inexorable question of what qualifies as an issue ad and what qualifies as a political ad.

Anyone who knows anything about issue ads knows that the line between issue ads and political ads is entirely arbitrary and subjective. But it is still a legal distinction, which is what led to this priceless exchange in the current DC Circuit case:

"What's the issue?" asked Judge A. Raymond Randolph, a federal appeals judge sitting on a mixed panel to review the case.
"That Hillary Clinton is a European Socialist," Bopp replied. "That is an issue."
"Which has nothing to do with her campaign?" U.S District Judge Royce C. Lamberth interjected.
"Not specifically, no," Bopp replied.
"Once you say, 'Hillary Clinton is a European Socialist,' aren't you saying vote against her?"
Bopp disagreed because the movie did not use the word "vote."
"Oh, that's ridic...," Lamberth said, trailing off and ending the line of questioning.

As I said, the line is a bit arbitrary. Where does election advocacy begin and information dissemination end? As nasty and wrong as the Swift Boat campaign was, it had every right in the world to exist. Restrictions on independent political advertising don't just set an arbitrary line; they actively prevent or restrict the dissemination of candidate information by all but the candidates themselves. True, that information is sometimes fictional or disseminated for less than scrupulous means. But I'd rather have third parties disseminating information in addition to the candidates than just have the candidates controlling the dissemination themselves.