Saturday, September 25, 2004

Eugene Volokh worryingly cites the following from a Johnathan Rouch column on free speech:

In June, the FEC ruled that the Bill of Rights Educational Foundation, an Arizona nonprofit corporation headed by a conservative activist named David Hardy, could not advertise Hardy's pro-gun documentary ("The Rights of the People") on television and radio during the pre-election season. The FEC noted that the film featured federal candidates and thus qualified as "electioneering communication." Hardy, according to news accounts (I could not reach him by phone or e-mail), yanked the film until after the election.
There are, apparently, quite a few instances of the FEC preventing people from marketing overtly political documentaries on TV and radio stations in this election cycle due to the passage of McCain-Feingold the year before.

What I don't understand is why any of this is worrysome. Forget about the legal definition of free speech for a second. Just think of the concept - free speech. What does it mean? My gut response is that it means the right to say whatever you want to anybody you want. Does that include the right to broadcast messages over public airwaves?

Its not obvious that it does. The UK, for example, restricts use of public airwaves far more stringently than the US does - sometimes preventing the media from reporting key parts of national stories; its campaign finance laws and restrictions on political advertising are many times more stringent. Are people in England any less free?

It seems like, due to the phrasing of the first amendment and other accidents of history, many things became legal under the rubric of free speech that are a stretch of the free speech concept itself - things like the ability of millionare candidates to dramatically outspend their opponents by self-financing their campaigns, as well as the rest of the provisions of Buckley v. Valeo.


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