I moderated a panel on Friday afternoon titled “Campaigning for Free Speech,” featuring (seated, right to left) CEI President Kent Lassman, Americans for Prosperity General Counsel Victor Bernson, and Goldwater Institute Vice President Timothy Sandefur. The following are my introductory remarks.
Good afternoon ladies and gentlemen, and thank you for joining us for Day 3 of FreedomFest 2017 here at the fabulous Paris resort, hotel, and casino. We’re got a great discussion for you of free speech and political advocacy with an all-star panel of legal and public policy experts.
Legal attacks on free speech and association rights have been increasing in recent years at an alarming rate. We’ve seen the high-profile harassment of conservative and Tea Party groups at the IRS under officials like Lois Lerner, and politically motivated prosecutorial actions like the so-called John Doe investigations in Wisconsin, which targeted Gov. Scott Walker and the advocacy groups which campaigned against his recall. We’ve seen state attorneys general across the country and acting in concert targeting nonprofit organizations with demands for documents and donor lists in a way that is inconsistent with the principles of equal treatment under the law and due process, and in many cases, transparently motivated by partisan and ideological bias. And those are just the cases we managed to find out about.
We’re not talking about fake news, the rhetorical excesses of lefty activists, or the regrettable actions of private actors who cater to political correctness, identity politics, radical environmentalism, or other regrettable tendencies (as annoying as those things are). We’re looking how our elected and appointed government officials at the federal and states levels, have been trampling of our rights. Only government actors can violate the First Amendment, and it is the police power of the state, not the speech of our political opponents, that needs strict statutory and constitutional limits.
Today we’re going to share some stories about successfully litigating free speech cases in court (and in the news media) so our fellow freedom fighters here will be better armed if they’re subject to such attacks in the future.
We call this panel “Campaigning for Free Speech” because, of course, it has do with being able to participate in political campaigns and elections, but also in the original, military sense of the word ‘campaign.’ The struggle over whether Americans are able to meaningfully express their beliefs and policy preferences and to influence the political process is itself a battle. It’s a long, hard-fought battle with many fronts, and one in which even major victories are, alas, often only temporary.
On one side of this battle are the people who believe in more boards, commissions, databases, and disclosure forms, in more rules, lawsuits, and IRS control. That side is made up of people who think the government should be able to put you in prison for spending money on telling your fellow Americans what you think our government should look like. On the other side are people who actually believe what the First Amendment says about Congress making no laws abridging the freedom of speech.
We know that free speech is important and good. Robust discussion of what our country should be like and which laws it should have is a very good thing, and a government which restrains itself from getting in the way of that is even better. We can find plenty of quotations from famous people – everyone from Thomas Jefferson and Frederick Douglass to Salman Rushdie and Larry Flynt – telling us why that is so. Yet political organizations today are beset, as Jefferson might say, by swarms of government officials sent forth to harass us and eat out our substance when it comes to political speech.
Why? While there may be a few dispassionate academic theorists out there who are really and truly only motivated by a desire to keep politics clean, overwhelmingly restrictions on political speech are pushed by highly motivated partisans who have calculated that the rules they support will have a disparate, negative impact on the ability of their opponents to achieve those opponents’ policy goals. If I own a coal mine and you own a solar panel factory, you just might be in favor of banning political contributions from the fossil fuel industry. And if you are an editor at the New York Times, you just might want reporting on, say, Hillary Clinton’s campaign to be confined to legitimate media outlets and not nonprofit organizations like, say, Citizens United. It’s a perfectly understandable motivation, but that doesn’t make it right. And it doesn’t mean we should accept it.