Speech is free, unless courtsees otherwise

February 06, 2000|By George F. Will

WASHINGTON -- The day George W. Bush won Iowa's caucuses, the Supreme Court decided a case concerning campaign finance. One of Mr. Bush's father's worst and one of his best legacies were on display at the court that day.

In an opinion written by Justice David Souter, who was nominated by President Bush, the court affirmed its 24-year-old ruling that permits government to regulate the right of Americans to engage in political speech. In dissent, Justice Clarence Thomas, another nominee of President Bush, argued correctly that the ruling is a perverse anomaly in First Amendment jurisprudence.

At issue was a Missouri law restricting, as federal law does for federal candidates, the size of campaign contributions to state candidates (up to $1,075 for statewide races).

A lower court had ruled the restrictions, which the state justified as a means of reducing corruption, an unconstitutional abridgment of free political expression, absent evidence of corruption.

The case challenged the Supreme Court to revisit its 1976 holding that, although limits on candidates' expenditures are unconstitutional abridgments of free speech, limits on contributions are not. The court recently ruled 6-3 that Missouri's contribution limits are constitutional. Justice Souter, writing for the court, said that if the public's "perception of impropriety" is "unanswered," cynicism will result.

Curbing cynicism

Evidently the First Amendment means, to Justice Souter and five colleagues, that government shall make no law abridging freedom of speech -- unless government decides abridgment will limit cynicism. In a concurrence, Justice John Paul Stevens asserted that political contributions merely hire "speech by proxy," by "mercenaries" and "gladiators."

Justice Thomas, joined by Justice Antonin Scalia, replied that "the proposition that speech by proxy is not fully protected" ignores the fact that "a contribution, by amplifying the voice of the candidate, helps to ensure the dissemination of the messages that the contributor wishes to convey."

The court has held in prior rulings that the First Amendment protects students wearing armbands as protests, nude dancing, burning the flag, wearing a jacket inscribed "f--k the draft," and pornographic telephone services and Internet activities. Nevertheless, the court says government can limit political speech, expressed through voluntary campaign contributions.

This, even though the court in 1981 held that "placing limits on contributions which in turn limit expenditures plainly impairs freedom of expression."

When the court in 1988 struck down a state ban on payments to professionals who circulate petitions, it said the First Amendment protects people's right to give money to others to help get their message out because government cannot make a law that "limits the size of the audience they can reach." The author of that opinion? Stevens.

In the Missouri case, the court allowed contribution limits as a means of combating the perception of corruption. But the court, and campaign finance enthusiasts like John McCain, claim to perceive, and urge the public to perceive, corruption in normal relations between politicians and citizens.

Furthermore, limits on contributions to candidates merely serve to relegate contributors to less-effective modes of communication, such as issue ads by independent groups. But "reformers" like Mr. McCain want to break even those groups to the saddle of government regulation. Such government restriction of other people's voices is encouraged by many journalists because it will magnify the journalists' collective voice.

Contrasting views

When it was revealed recently that the White House drug office had worked with television networks to implant anti-drug messages in entertainment programs, the New York Times said this should disturb anyone who understands the need for all media "to remain free from government meddling." But the Times applauded the court's decision in the Missouri case, which allows government to determine the proper amount and efficacy of political advocacy in the media.

The court, said the Times approvingly, has reaffirmed government's right to decide who is having "undue influence" through the political advocacy, primarily in broadcast media. To the Times, the First Amendment protects freedom of the press absolutely, freedom of other people's speech much less so.

This presidential election may decide whether the Supreme Court acquires a composition that protects political speech from those who believe government can dictate the "due" influence of speakers. So whether America remains a politically open society may depend on whether the next president nominates justices who, concerning the First Amendment, think as Justices Thomas and Scalia do.

Those two justices are cited as exemplars by George W. Bush, who the day before the court ruled in the Missouri case, endorsed this Thomas assertion (from a 1996 case): "There is no constitutionally significant difference between campaign contributions and expenditures: Both forms of speech are central to the First Amendment." If the court ever follows the logic of its own First Amendment case law, it will agree.

George F. Will is a syndicated columnist.

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