Tuesday, June 30, 2009

The Supreme Court Seems Poised
Mike Rappaport

to restore freedom of speech in the core area of political speech.  One of the worst things that George Bush II did was to sign the McCain Feingold Campaign Finance Law, for no fathomable reason.  (Oh yeah, I guess silencing political speech really is compassionate conservatism.)  Under that law, corporations and labor unions are not allowed to purchase TV or Radio political ads in the two months before an election.  It is hard to get more core political speech than that.  But there is an exception.  If you are a media corporation, you can talk away to your heart's content.  Surprisingly, the media loves the law.    

Two years ago, with the replacement of Justice O'Connor with Justice Alito, the Supreme Court narrowed the law's effect, but did not hold the law unconstitutional.  Now, the Court has asked for supplemental briefing on whether to overrule the two key judicial decisions that allowed the Law to be held constitutional.  As the New York Times wrote:

“The court is poised to reverse longstanding precedents concerning the rights of corporations to participate in politics,” said Nathaniel Persily, a law professor at Columbia. “The only reason to ask for reargument on this is if they’re going to overturn Austin and McConnell.”

Well, from Professor Persily's mouth to God's ears, but I do think the chances are good for an overruling.

Part of the reason for the overruling appears to be the facts of the case.  The federal government attempted to restrict a movie critical of Hillary Clinton during the primaries last year.  Somehow restricting a movie seems worse than restricting a commercial.  And, making matters worse, the federal government argued before the Court that "Congress had the power to ban political books, signs and Internet videos as long as they were paid for by corporations and distributed not long before an election."   Wow.  


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Mike Rappaport


Back in the day when Judge Bork got "borked" with respect to his Supreme Court nomination, the official-for-public-consumption slam on him was that he believed that only political speech (very broadly construed) gets full protection under the First Amendment.

Later we come to find that even purely political speech does not get full protection under the First Amendment - although it often seems that pornography does.

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