With Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia exhibiting considerable distaste for a key provision of federal campaign finance law, Congress' latest attempt to reduce the flow of corporate and union money into federal politics appeared to be in trouble in the Supreme Court on Wednesday. While that attempt had an energetic defense from Justices Stephen G. Breyer and David H. Souter, it seemed apparent at the end of an hour of argument that the "blackout" period for "electioneering" ads on radio and TV -- if it survived at all -- would have far less effect in restraining such ads.Excellent questions, friends, excellent questions. The answer to both assertions is that the line drawn by the first amendment is really quite simple: unless the political speech is fightin' words or otherwise illegal, it is to be permitted unless the government can show a compelling interest to muzzle what is otherwise protected speech. I can think of no circumstance that makes the blanket "blackout" rule of McCain-Feingold pass that test. But what do I know? I'm just a lawyer/blogger.
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Scalia was clearly taking the lead against the "blackout." He commented to Solicitor General Paul D. Clement, who was defending that restriction: "This is the First Amendment. We don't make people guess whether their speech is going to be allowed by Big Brother or not. If you are going to cut off the speech, there ought to be a clear line...And you're not giving us one." Roberts, confronting attorney Seth P. Waxman, representing lawmakers who helped create the "blackout," soon echoed Scalia by asking rhetorically: "Do we usually place the burden when we're applying strict scritiny under the First Amendment on the challenger to prove that they're allowed to speak, as opposed to the government...to carry the burden that they can censor the speech?"
Wednesday, April 25, 2007
About frickin' time
McCain-Feingold, the campaign finance legislation that also acts as a pre-existing restraint on political speech, may finally get whacked by the Supremes. Good riddance, I say.