Unconstitutional Campaign Restrictions Undermine Democracy


With the opposition to Rhode Island’s status quo mounting a bit more of a challenge this year than the typical election year of recent past, more than the usual amount of attention has been paid to who is paying for what promotion and how those promotions are disclosed.  Among activists who might be characterized as outsiders, pointing out such things is an attempt to make the insiders live by the rules that they impose on the rest of us.

We shouldn’t lose sight of the fact, however, that these laws are an unconstitutional assault on our right to free speech and are a disincentive for people to participate, almost certainly intended to limit citizens involvement in the political process. Consider the following Board of Elections regulation from section 4 of the “Rules and Regulations on Reporting Requirements for Coordinated and Independent Expenditures.”  This imposition has come up because the Rhode Island Progressive Democrats complained about Gaspee Project mailers, to which Gaspee has responded, here.

With respect to printed communications covered by tills section, the disclaimer must also be of sufficient type size to be clearly readable by the recipient of the communication. If the communication is on printed material that measures no more than 24 inches by 36 inches, the disclaimer must be in 12-point type size. The disclaimer must be contained in a printed box set-apart from the other contents of the communication. The disclaimer must also be printed with a reasonable degree of color contrast between the background and the printed statement. The disclaimer satisfies the color contrast requirement if it is printed in black text on a wbite background or if the degree of color . contrast between the background and the text of the disclaimer is no less than the color contrast between the background and the largest text used in the communication.

Being a Tea Party type of guy, I keep copies of the Constitution handy, and here’s what it has to say about our freedom of speech:

Congress shall make no law … abridging the freedom of speech.

And to drive the point home, here’s similar language from the Rhode Island Constitution:

No law abridging the freedom of speech shall be enacted.

According to Merriam-Webster, “abridge” means “to reduce in scope” — that is, “to lessen the strength or effect of.”  How can it possibly not be an abridgment of our right to speech when the government is dictating font sizes and color shades?  Actually the government’s overreach is worse than that.  Accurately phrased, what the government is declaring is that citizens cannot communicate certain things in certain ways unless they follow specific rules about how it is presented and (worse) with additional communications about who gave the speaker money.

That is abridgment.  It isn’t even an arguable point.  The government might as well pass a regulation that communications critical of incumbent politicians can only be printed in black ink on black paper or spoken at decibel levels lower than a whisper.  Obviously such measures would be more extreme, but our constitutional rights forbid any abridgment, not abridgment up to a reasonable point.  And of course, those who support these laws have legalistic arguments for why such restrictions are permitted, but the very necessity of having such arguments only proves the abridgment.

The freedom of speech must be unabridged except in limited cases in which a publication or vocalization can be said to cease to be speech.  In the extreme, we might think of the superhero Banshee, who could make sounds with physical force.  The cliché about shouting “fire” in a crowded theater falls in the same category.  We might also see our way to categorizing some forms of slander or harassment similarly.  Be that as it may, nobody is arguing that political speech is not speech or that it is categorically defamatory.

What these regulations actually do is abridge the rights of those below a certain threshold of money and power.  Only those with sufficient resources to assess extensive legal requirements, fill out regular forms, and produce materials with space to spare for disclosures can engage in these sorts of powerful communications.

Whether the insiders in our legislatures and courts acknowledge it, this entire area of law is illegitimate, meaning an electoral process conducted under its mandates is illegitimate, as well.  To get along in life and to make what difference we can, we have to play along with the game to some extent, but we should never forget the disgusting tyranny that it represents.