If you really want to trample on free speech in America, you must start by enlisting the right sort of people — academics, liberal politicians, editorialists and “good government” groups like Common Cause — on your side. Then you’ll be free to write a law that defies the First Amendment, and the courts will solemnly assure the public that what you did is fine.
The McCain-Feingold act of 2002 is one such law, but there are plenty of others.
If, on the other hand, you fail to attract the right sort of support for your crusade to undermine the Constitution, it may not matter how popular it is with the general public. The courts will do their job and smack you down.
Which brings us to Amendment 54 — an assault on the First Amendment that Colorado voters unfortunately approved last fall. Thankfully, the amendment attracted hardly a speck of support among the state’s elites and so had two strikes against it in the legal challenge that followed.
Predictably, a Denver district judge has now put the amendment on hold while leaving little doubt as to how she will eventually rule. “In my mind, it’s just not a close case,” Judge Catherine A. Lemon declared. “When First Amendment freedoms are involved, the state has got to come forward with evidence of a sufficiently important (threat).”
When Lemon finally issues a written opinion nullifying most of Amendment 54, she’ll no doubt explain why, in America, you can’t prohibit individuals with certain kinds of government contracts from making campaign contributions across the state. You can’t ban campaign contributions from the relatives of those same individuals. You can’t bar people who once held government contracts from making political donations for two years after the contracts have expired.
You can’t trample on free speech, in other words, under the paper-thin pretext of keeping politics untainted by corruption.
Except when the courts say you can, of course.
After all, as outrageous as Amendment 54 may be, is it really any worse than some of the other restrictions on speech that Americans already endure? If political speech were fully protected, it would be taken for granted that any group could release an unflattering 90-minute film about a presidential candidate near an election. And yet last year the Federal Election Commission blocked the cable video-on-demand release of “Hillary: The Movie” because it was paid for with corporate contributions and so violated, by the FEC’s lights, the McCain-Feingold law.
In defending the FEC’s ruling before the Supreme Court earlier this year, the deputy solicitor general for the Obama administration, Malcolm Stewart, actually argued that even a book could be banned by the federal government before an election if it “contained the functional equivalent of express advocacy.”
Surely book banning — and film banning, for that matter — is a deadlier thrust at the heart of the First Amendment than even the most extreme passages of Amendment 54.
To be sure, the Supreme Court may well rule against the FEC in the “Hillary: The Movie” case once it hears arguments again in September. What’s amazing is how federal law — law upheld by the high court — invites such legal conflicts because of the expansive powers it grants to government censors.
Two years ago the court did manage to rebuff the FEC for barring advertisements by a pro-life group that asked viewers to contact two U.S. senators over possible filibusters of judicial nominees. Shockingly, however, that case was decided by a 5-4 vote, meaning four high-court justices considered such a speech ban to be perfectly legal because of McCain-Feingold’s broad limitations on political advertising.
Whether Coloradans appreciate it or not, we are fortunate that our courts are likely to throw out an amendment such as 54 that so clearly restricts thousands from participating in an important part of the political process. But we won’t be able to breathe — or speak — freely until the courts and lawmakers have second thoughts about other obnoxious limits on speech as well.
E-mail Vincent Carroll at vcarroll@denverpost.com.
