Excepting Freedom of Speech


Providence Journal political reporter Katherine Gregg asked a question, yesterday, that kicked off an extended discussion in my Twitter stream:

Question: shouldn’t every grp conducting paid attacks ag. lawmakers for their votes disclose source $? Discuss.

The question is in relation to the Gaspee Project, which is allied with the RI Center for Freedom & Prosperity, for which I work, but my response would have been the same regardless: “My Constitution still says ‘no law … abridging the freedom of speech.'”

The interesting point at which I decided that the Twitter discussion couldn’t be continued in that medium came from Mr. Quindazzi:

So you’re all good with people shouting “fire” in a theater, or calling for the violent overthrow of USG?

First, of course, we have to insist on the disclaimer that one of America’s most significant problems is the judiciary’s determination that restrictions that the U.S. Constitution imposes on the U.S. Congress ought to be extended to government at every level.  But for that shift, we could move the issue down the government ladder and make exceptions like the one concerning “fire” a matter of more-local debate and state-level experimentation.

Whatever the case, we’d still have to have the debate at the state level, and one finds such logic as Mr. Quindazzi’s frequently on the Left.  The argument is that freedom of speech obviously must have exceptions, so the Left is therefore justified in declaring something (e.g., politics) too important not to justify more exemptions.  That is, the two choices for the American electorate must be (1) absolute freedom (dispensing, presumably, with fraud and libel/slander laws, too) or (2) an amorphous standard limited only by the aesthetic preferences of the Left.

There are, however, clear distinctions between the “fire” trope and campaign finance laws.  Shouting “fire” in a crowd has an immediate physical effect on the people in the room, who may very well feel as if they lack the time to evaluate the claim and panic, causing physical harm to others.  In the case of political fliers, no analog exists.  Even if they wanted to, the people receiving them could not run out and impeach the targeted politician.  For them to have some effect, the claims themselves must be evaluated through some process.

Two concepts may clarify my thinking, here.

First is the idea of prior restraint.  The law could obviously leave people free to shout “fire” — Indeed, would we really want people to feel unable to issue warnings in a manner consistent with the urgency? — while not liberating them from adverse consequences for malicious intent.  Just so, political activists can be left free to promote messages far and wide without removing consequences for fraud and libel/slander.  There is simply no justification for forbidding the free articulation of the truth.

Second is the distinction between evaluating claims and evaluating motivations, the latter being a justification in Mr. Quindazzi’s mind, and others’, for requiring registration of political activists and the exposure of financial donors to public attack.  The claims in political literature can be evaluated without regard to those who uttered them or promoted them.  To say that politician X voted for new tolls is either true or not, and voters can decide for themselves whether the vote ought to have consequences.

Those voters do not have an implicit right to know how other people feel about an issue or about a politician, whether those other people fund a mailer or not.

This gets right to the heart of the campaign finance issue.  Government’s requiring the disclosure of donors is tantamount to the government’s requiring people to register their opinions.  As much as activists and politicians both might like the ease with which that enables them to create enemies lists, their preferences do not constitute a counterbalancing right to the right of others to work to ensure that the public knows facts about them.

P.S. — With regard to Mr. Quindazzi’s question about calling for the violent overthrow of the United States government, I’d suggest that, yes, that is protected speech.  In fact, I’m getting ever closer to endorsing the suggestion, myself.

  • Mike678

    Nicely done.

  • Rhett Hardwick

    Why not keep the information on a confidential basis. Perhaps only available, for each individual, by subpoena.

    • OceanStateCurrent

      You mean like the taxpayer info the IRS leaked to progressive groups?

      • Rhett Hardwick

        I think it has been proven that we can’t outlaw crime. I can imagine the information being valuable in corruption cases. For instance, I thought it quite telling that tow operators donated $100,000 to Cianci. At the same time, I do not see the value of public dissemination of the information. The taxpayers seemed to little note the CIanci information, and the newspapers did nothing with it. “Police tows” are still as overpriced as they ever were.

  • Russ

    Should foreign governments be able to spend freely in U.S. elections, or are you of the opinion that it’s OK for freedom of speech to have restrictions so long as it’s someone else’s money, er, “speech” that’s restricted?

    • Mike678

      Ah, the red herring. How about we stick to the point, Russ? Who I donate money to as an American is no business of yours or progressive hate groups–and vice versa.

      • Russ

        Not at all a red herring. 1st Amendment protections are not limited to U.S. citizens, so if Justin truly thinks this is a violation of that right than so is this law.

        Here’s Justin’s false dilemma:
        “That is, the two choices for the American electorate must be (1) absolute freedom (dispensing, presumably, with fraud and libel/slander laws, too) or (2) an amorphous standard limited only by the aesthetic preferences of the Left.”

        So it’s AOK over here to have a foreign dictatorship secretly fund organizations or candidates who pledge to support their interests? I suspect most here don’t think that’s such a great idea. Here’s Mother Jones:

        “But for the secretive nonprofit groups pumping hundreds of millions of dollars into the 2012 elections, the rules are different. These outfits, organized under the 501(c) section of the US tax code, can take money from foreign citizens, foreign labor unions, and foreign corporations, and they don’t have to tell voters about it because they don’t publicly disclose their donors…

        Anyone, American or not, can give any amount—$1 or $10 million—to politically active nonprofits like the Sierra Club or Americans for Prosperity, the national free-market organization cofounded by billionaire industrialist David Koch [RLC – uh oh!]. Federal law prohibits a penny of that foreign money from being spent on politics. But it’s not hard to dodge that ban, says Marcus Owens, a tax law attorney who ran the IRS division that oversees tax-exempt groups.”