In May the Court knocked down a Rhode Island law banning price advertising of alcoholic beverages. The law reflected what economists call rentseeking – an interest group using government to confer anadvantage on itself, in this instance by imposing a disadvantage on competitors. Small liquor stores wanted protection from the competition of larger stores with large advertising budgets. Rentseeking is not nice but neither is it unconstitutional. Inddeed, it is the principal industry of the city in which the Court sits. However, the Court has now made it more difficult for rentseekers to use restrictions on commercial speech. By saying that a state seeking to restrict such speech has the ““heavy burden’’ of demonstrating that the restriction ““directly’’ and ““to a material degree’’ serves an important government interest, the Court went further than ever before in extending to commercial speech a degree of protection not much inferior to that given political, literary and artistic speech.
In June a three-judge panel unanimously declared unconstitutional parts of the new law written to keep indecent material off the Internet. If this ruling stands, the global computer network will be a huge exception to the rule that speech distributed electronically, as on radio and television, enjoys less protection than other speech. Now, the idea that the First Amendment should protect the high-tech delivery of, say, sexual primitivism (or price advertising of alcoholic beverages) runs counter to the way some conservatives construe the Amendment. They say it is part of a document establishing self-government, and so its protection extends primarily, and perhaps only, to political speech. However, that doctrine has long since been buried beneath an avalanche of contrary rulings. And, perversely, many ““reformers’’ today want to intensify government regulation – rationing, actually – of political speech.
Last week the Senate could not agree on how to make matters worse with yet more restrictions on campaign giving and spending. Gridlock be praised. Campaign finance ““reforms’’ almost always constitute two kinds of rentseeking by politicians – attempts to create entitlements (such as public funding and cheap advertising rates) for themselves as a class, and to rig the spending and contributing rules in ways that disadvantage one party or the other. Happily, the day after the Senate failed to create new restrictions on political speech, the Court overturned an old one.
The challenged law, enacted in the wake of Watergate, has done more damage to constitutional values than Watergate did. The law empowered a bureaucracy of speech rationers, the Federal Election Commission, to administer regulations of how much the parties can spend in support of House candidates and, using a formula based on population, how much on Senate races. The Court overturned the law on the ground that parties exist to disseminate political ideas and the First Amendment leaves them free to do as much spending as they please. The Washington Post, perhaps alarmed by this rebirth of freedom, had a headline – PARTY SPENDING UNLEASHED – that conceded the point of the law’s critics: political speech, which should be the most protected speech, has instead been treated as something to be leashed, like a dangerous cur.
The Los Angeles Times report of the ruling began: ““Cutting a gaping hole in federal election laws, the Supreme Court on Wednesday gave the nation’s political parties a free-speech right to spend . . . .’’ ““Gave’’? The American idea is that government exists to protect, not to give, the most fundamental rights which, as Jefferson wrote 220 July Fourths ago, are ““unalienable’’ because they exist independent of, and prior to, government. What the Court did last week was restore – partially – First Amendment protection of the fundamental right of free political speech.
The Court chose not to rule on the part of the law that says the parties’ spending cannot be coordinated with candidates’ campaigns, but four justices (Rehnquist, Scalia, Kennedy and Thomas) are ready to remove that indefensible restriction on what they call the parties’ ““absolute right’’ to communicate their views. And Thomas, true to the Court’s earlier ruling that money is speech in politics, would correct the Court’s contradictory ruling that limits on spending are unconstitutional but limits on giving are not. He says political contributions, too, are acts of political expression, as well as exercises of the freedom of association.
Last Friday the Court added a few more filigrees to First Amendment law. One ruling struck down, as unnecessarily restrictive, parts of a law by which Congress sought to restrict the distribution by cable television of ““patently’’ offensive sexual material. In two other cases the Court sided with individuals who claimed that their speech rights had been abridged when their businesses were deprived of government contracts in retaliation for having improvidently opposed those who won elections. To the victors belong the spoils? Not any more. Justice Scalia wrote dryly in dissent that political patronage is as American as apple pie and until now no one has ever thought that it violated, of ““all things,’’ the First Amendment. Certainly the authors of that Amendment did not envision the Court quite so busy telling a free people what they are and are not free to do with their freedom.
So, as freedom of speech expands, the nation flourishes? Perhaps. ““The effect of liberty to individuals is,’’ Edmund Burke wrote, ““that they may do what they please; we ought to see what it will please them to do, before we risk congratulations.''
