Supreme Court’s Gag Rule on Us


In covering the Supreme Court’s historic cutting down of the First Amendment right of individual Americans who belong to independent organizations to get their views expressed, the press has greatly underestimated the effect of the court’s banning these groups’ television and radio ads close to federal primaries and general elections.

The rule now is that these ads on social and political issues cannot be on the air within 30 days of a primary or 60 days before a general election. The law will be violated, says the Supreme Court, even if “advertisements do not urge the viewer [or listener] to vote for or against a candidate in so many words [but] they are no less clearly intended to influence the election.”

What do “in so many words” and “clearly intended” mean? This is the kind of scrambled reasoning, leading to opaque language, that has become customary on this clueless high court, where the deciding vote in cases with formidable consequences is often cast by Justice Sandra Day O’Connor.

But along with the vagueness of this silencing prior restraint of speech that twists the First Amendment out of shape, there is the further abuse of the First Amendment right to associate for political purposes, which the AFL-CIO emphasized in its brief to the Supreme Court in McConnell v. Federal Election Commission, the case in which the court, 5 to 4, upheld the constitutionality of the McCain-Feingold campaign finance legislation.

Let me know if you’ve seen what follows anywhere in the media—or in the majority decision of the Supreme Court, in this case. Independent organizations—not tied to political parties—wanting to place broadcast ads criticizing George W. Bush will have these obstacles, as detailed by the AFL-CIO:

“Beginning 30 days before the first primary or caucus . . . December 14, 2003 . . . Section 203 [of McCain-Feingold] will criminalize broadcast references to the President in a series of geographic blackouts that will continuously ripple through the Nation, blocking every broadcast outlet, wherever located, whose signal can reach 50,000 persons in an upcoming primary or caucus state until June 8, 2004.

“This blackout will become national in scope on July 31, 30 days before the August 30-September 2 Republican National Convention . . . and it will then continue without interruption throughout the remaining 60 days until the November 2 election. Thus, from July 31, 2004 until the election, it will be a crime for a union, corporation, or incorporated non-profit organization to pay to broadcast any ‘reference’ to the President by ‘name,’ ‘photograph,’ ‘drawing’ or other ‘unambiguous’ means anywhere in the United States.”

In view of the definition of “reference” to the president—including speech that just has “the effect” of seeking the candidate’s election or defeat—the AFL-CIO claims that section 203 is unconstitutionally overbroad because it includes too much speech that the First Amendment protects.

The majority of the Supreme Court has failed to recognize, says the AFL-CIO, that “the First Amendment does not permit a prohibition of all candidate-referential speech merely because some of that speech could be viewed, and might even be intended, to have an electoral impact.”

The AFL-CIO then quotes a Supreme Court decision directed against George W. Bush’s attorney general, John Ashcroft, a master of reducing free speech: “The argument . . . that protected speech may be banned as a means to ban unprotected speech . . . turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected speech merely because it resembles the latter. The Constitution requires the reverse” (Ashcroft v. Free Speech Coalition, 2003).

Here, for further examples of how this law—celebrated by The New York Times—forbids broadcast messages concerning any candidate close to primaries or general elections, the AFL-CIO lists prohibited ads that: “Call upon a Member of Congress to support or oppose imminent legislation, or ask viewers or listeners to urge the member to do so; inform the public, or express an opinion, about a Member of Congress’s votes, legislative proposals or performance otherwise; respond directly to a Member [of Congress] who has criticized the [independent] organization or taken issue with its activities or policies; or encourage candidates to commit that, if elected, they will support or oppose particular legislation or policies.”

I have been unable to understand why Senator Russell Feingold, an exceptionally principled legislator—the Wisconsin Democrat was the only senator to vote against Ashcroft’s USA Patriot Act—allowed these prior restraints on free speech during crucial election periods to be part of a bill, and then a law, bearing his name. The result—as Edward Wronka wrote in a letter to The New York Times: “The powerful have only gotten more powerful.”

It should also be noted that the key “Wellstone Amendment” was specifically included in the Bipartisan Campaign Reform Act (McCain-Feingold) to severely restrict issue ads, such as those by the AFL-CIO, and the National Right to Life Committee. In the Senate, Wellstone spoke of “sham issue ads” and “poisonous ads,” adding that “I have an amendment that tries to make sure . . . this big [soft] money doesn’t get” through. There sure were some poisonous ads in the last presidential campaign and in other campaigns. But by jamming all issue ads into his amendment, Wellstone—a paladin of the First Amendment throughout his career—grievously wounded it in this law, setting a precedent for future attacks on free speech.

I got to know Wellstone during the last two years of his life and greatly respected his independence and plain decency. He worked hard, for one of many examples, to try to get his colleagues to rescue what he called “the disappeared”—the many Americans thrown off the welfare rolls by Bill Clinton’s coldhearted “welfare reform” law.

So how, like Feingold, could Wellstone have been a vital part of this silencing of organizations he supported (along with those he opposed) for those months when all voices count during elections? Neither Feingold nor Wellstone were motivated by cynicism. They thought they were doing good by fighting corruption in politics. Watch and see how that aim also misfired in the growing loopholes in this disgraceful law and Supreme Court decision.