Chick-fil-A and City Officials: A Whole Lotta Clucking Goin’ On

Ah, political correctness. It never disappoints.  Take, for instance, the latest eruption of civic broadmindedness brought on when the president of the restaurant chain Chick-fil-A professed his personal embrace, based on his religious views, of traditional marriage.

Outraged by the effrontery, the mayor of Boston and a Chicago alderman (Messrs. Menino and Moreno, respectively) immediately announced that they would ban the opening of the chain’s restaurants in their jurisdictions.

Never mind that Chick-fil-A had never practiced discrimination among its employees or customers, whatever their sexual orientation; it was enough for the mayor and the alderman that the head of the company expressed himself on this subject in a way that might give offense to those who disagree with him.

Alderman Moreno is especially instructive.  Having earlier said he decided to pull the plug on the restaurant after learning about the company president’s “bigoted and homophobic comments” in a Baptist publication, Moreno has now pivoted, under pressure, to saying that he’s opposed to the opening of a restaurant in his ward because of “traffic concerns.”

There’s been an unfortunate unevenness in recent years in the way that the media generally have opined on free speech and First Amendment issues. In the case of the Supreme Court’s decision in  Citizens United, for example, one has to look far and wide to find approving newspaper editorials, despite the fact that it was as pure a First Amendment case as has ever come before the Court.

Much of the media have also shown a kind of benign neglect when it comes to the myriad examples of campus “speech codes.”

This time, though, the nation’s editorialists got it right! From such journals as the Los Angeles Times, the Chicago Tribune, and the Boston Globe has come a virtual symphony of criticism of the words and actions of Menino and Moreno, and all of it based on the First Amendment.  As the Times put it: “Public officials have a responsibility to carry out their ministerial tasks fairly and evenhandedly – and to uphold the principle of free speech – whether or not they like a business executive’s social or political stances.”

Makes one proud to be the head of a group like The Media Institute.


The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

FCC Denies Stay of Its Political File Rules

In a decision that landed a country mile from being a surprise, the FCC yesterday denied a stay requested by the NAB of its new political file rules, under which broadcasters are required to post online their spot-by-spot ad rates for candidates for federal office.

As readers of this blog will recall, a dozen broadcast station groups recently suggested an alternative approach in which the required information about political and issue ads would be posted online, but aggregated in a way that would not reveal the stations’ ad rates.  (The alternative proposal would also have provided information about political and issue ads in state and local races, something that the FCC’s new rule does not require.)

The stations were concerned that, because the political ad rates are based on the rate they charge their best commercial advertisers, the effect of posting their political ad rates online would be to encourage other commercial advertisers to demand the same low rates for their products and services.  (Broadcasters also chafed at the fact that cable and satellite companies would not have to provide this information.)

Yesterday’s denial of the NAB’s requested stay mentioned the alternative proposal only in passing, but in language that speaks volumes.  “Requiring the public to view aggregated data online and separately review complete political rate data in the paper file,” they said, “would not provide the efficiencies presented by online disclosure.”

What is missing here is what part of the “public,” other than broadcasters’ competitors and advertisers, would want to view the spot-by-spot ad rates.  The simple fact is that the proposed aggregated data would actually be more helpful to journalists and interested citizens than the disaggregated data that the FCC rule now requires.

But the best in the language of the FCC’s decision was yet to come.  In a sentence that is sure to have broadcasters rolling in the aisles with laughter, the FCC writes that “as an additional basis for rejecting the alternative proposal, the Commission finds that it would be significantly more burdensome on broadcasters because it would require both the maintenance of paper files with detailed spot-by-spot information and the creation and uploading of new aggregated files.”

In other words, the FCC denied the broadcasters own proposal because the Commission was concerned that it would be too burdensome on them – surely the first time in recent memory that the FCC has been moved to act out of concern for broadcasters’ welfare.


The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.


Reconsidering the FCC’s Political File Rule

The FCC’s recently minted rule requiring certain broadcast stations to post their political ad files online rather than, as is currently the case, in their local public inspection files, is not the kind of issue that is likely to stir the nation’s passions.Regardless of how challenges to the rule pan out, very few people are going to run off and join the circus if things don’t go a certain way.

Still, it’s a more interesting issue than, on its face, it would appear to be – and there’s evidence that defenders of the rule, along with reporters, are not paying attention to some of the finer points being made in opposition to it.

As of today there are three separate challenges to the rule – one at the FCC, one at the Office of Management and Budget, and one in the U.S. Court of Appeals for the D.C. Circuit.  The petition for reconsideration at the FCC, signed by 12 TV station groups, is the most nuanced of the complaints.

As with the others, the FCC petitioners are mostly concerned about having to reveal online their spot-by-spot ad rates, but with this difference: The petitioners propose to aggregate such data in a way that would not reveal their ad rates but would actually make it easier for everyone, journalists included, to understand who is contributing to whom, and in what amounts, and in addition to include online the same kind of information for state and local candidates, something the FCC rule does not require.

Why the broadcasters are opposed to having to reveal online their political ad rates, when they already provide this information in their local public files, takes a little explaining.

Currently, broadcasters are required by law to offer political advertising to candidates for federal office at the “lowest unit rate,” which is the rate they charge their best commercial advertisers.  But these data are not that user friendly, and in any event requires that someone physically go to a TV station for the purpose.  (For anyone so disposed, the cumbersomeness in this only grows, as the date of an election draws near, because TV stations update their political files more frequently at that time.)

Campaign representatives sometimes do check these files to ensure that their candidates are not being charged more than their opponents, but commercial advertisers do not, and that fact touches on one of the main worries among the broadcasters: They fear that if they have to reveal online their spot-by-spot ad rates, some of their commercial advertisers (knowing that the political rates are based on what the stations charge their best commercial customers) will demand these rates for themselves.

It’s also bothersome to broadcasters that their media competitors, both in broadcasting and cable, would have access to this information, and it’s further been suggested that, as written, the FCC rule may encourage trial lawyers to file frivolous lawsuits against TV stations on behalf of losing candidates.

So in the case of the FCC petitioners, the question isn’t why broadcasters don’t want to provide their political files online (they are willing to do that), but why defenders of the FCC rule insist on requiring the online display of stations’ ad rates?

After all, one of the main goals of the campaign finance laws is to provide, in a timely way, information about candidate and issue expenditures.  It’s not the goal of these laws to compel TV stations to divulge their competitive secrets about ad rates and the like.

When asked about the unwillingness of the FCC to approve this simple modification to its rule – the Commission had this suggestion before it prior to its vote in late April – a communications lawyer prominently involved in the matter said that, in the wake of the Citizens United decision, everything touching on campaign finance has taken on a kind of “religious aspect,” such that advocates of campaign finance laws are these days unwilling even to grant such harmless accommodations as those presented by the petitioners.

Notable by their absence from the FCC petition are the station groups owned and operated by the Big Four TV networks.  Lawyers for the petitioners note that the networks supported the suggested “aggregation” approach prior to the FCC’s vote, and aver that they support the petition now.

That may be right, but if so it’s hard to confirm.  It may be, instead, that the networks don’t like the odds that the FCC will accommodate the petitioners, or that they are unhappy about the petitioners’ proposed inclusion of political ad information about candidates for local office.

For its part, the National Association of Broadcasters has appealed the FCC’s rule to the OMB, claiming that the obligation to put the political files online is unduly burdensome, and in conflict with the Paperwork Reduction Act.

There may well be real merit in these other concerns, and in the arguments to be fleshed out in the broadcasters’ lawsuit in the D.C. Circuit, but it’s the modest proposal made by the FCC petitioners that shines the brightest light on how hard it is these days to forge reasonable compromises in a deeply divided nation.


The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Idealists on the March

In yet another demonstration that the human race is not yet won, Congressman Jim Moran (D-Va.), no stranger to political funding controversies himself, will soon be headlining what its organizers call the "Rally Against Citizens United."

Subtitled the "Campaign To End Corporate Dominance of Our Democracy," the rally is cosponsored by Washington-area Democratic party groups, MoveOn, and the AFL-CIO.  So in other words, it’s a completely disinterested group of people, whose opinions about Citizens United are the result solely of idealism and objective cerebration – without even so much as an itsy bitsy teeny weeny hint of a political motive.

And it’s a good thing, too!  Because, you know, were people to subject a Supreme Court decision, decided on constitutional grounds, to rude political pressure it might seem to some like an assault on the independence of the judiciary itself.

Happy to report, literature distributed by the organizers makes ominous reference to the “increasing and pervasive corporate takeover of American politics,” a warning that, despite evidence of the precise opposite (see: Tea Party), consists of precisely that amount of ideological fanaticism that the times require.

So, thanks in advance to everyone involved for your selfless, not to say scholarly, contribution to our national discourse.  May an awakened nation be your reward.


The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.


‘Citizens United and Its Critics’

The Yale Law Journal has just published online an article by Floyd Abrams.  In language that is stirring in the power of its logic and elegance, yet solemn as a wake, the famed constitutional lawyer writes of his dismay over the way so many scholars and journalists have treated the Supreme Court’s decision in Citizens United, which largely overturned the law commonly called McCain-Feingold.

Abrams is neither surprised nor disappointed that these critics didn’t like the decision; his despair stems from their failure even to acknowledge the most obvious First Amendment aspects of the case.  They have, he says, treated the ruling “as a desecration.”

Many people will review this article narrowly, in that they will focus their comments, pro and con, on the law and facts of the case at issue.  But I view it from a wider perspective.  I think it’s one of the grandest examples in recent memory of the courage that’s required these days to defend and promote free speech even-handedly.

More than this, I think it guarantees, if any such were needed, that Floyd Abrams will go down in history as the greatest First Amendment champion of our era.

In part it has to do with the gentleman’s style.  Far from engaging the critics with language (like their own) that vilifies, Abrams flatters some of them for their scholarship.  Rather than retreat to the safety of quiescence or worse, he calls out even such as The New York Times, his client in the celebrated Pentagon Papers case.  And rather than indulge in any sort of self-pity, Abrams doesn’t even mention the scurrilous attack on him (because he wrote an amicus brief in opposition to McCain-Feingold) by Keith Olbermann, who predicted that Abrams “will go down in history as the Quisling of freedom of speech in this country.”

Summing up the essence of his argument, Abrams writes: “When I think of Citizens United, I think of Citizens United.  I think of the political documentary it produced, one designed to persuade the public to reject a candidate for the presidency.  And I ask myself a question: If that’s not what the First Amendment is about, what is?”

But enough of this.  Abrams’s piece is so powerful that nothing I say can embellish it.

Read it, and learn.
The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.

The DISCLOSE Act Creeps Along

Sometime before the end of the world (which is to say any day now) it’s going to occur to our congressional leaders that the United States is facing some actual problems that might usefully be addressed.  In the meantime, though, the expectation is that they’ll just keep lobbing into the hopper things like the DISCLOSE Act.

As mentioned in an earlier blog, the legislation is formally titled the “Democracy Is Strengthened by Casting Light on Spending in Elections” Act.  And right there you have a measure of the collective wit of the bill’s sponsors.

Having cleared the House last month, the legislation is now in the Senate where its fate is unclear.  There’s talk of a Republican filibuster and of Democratic weariness.  But never mind the horse race aspects; we can trust our political reporters to handle that.  Of much greater importance are the myriad things that are wrong with the bill, divisible in parts between those that are just routinely outrageous, and those that are uncommonly so.

Among the former are the carve-outs exempting special interest groups like AARP and the NRA, and the transparently political rush to pass the legislation before the fall elections.  But the worst aspects of the bill are those that are also the most constitutionally infirm.

The bans on direct expenditures by government contractors and TARP recipients (with no similar limitations put on unions), and the speech-chilling threat of harassment inherent in some of the disclaimer and disclosure obligations, are sure to be challenged in court if the DISCLOSE Act is passed and signed into law.

It’s rarely a prudent thing to predict the outcome of any matter before the Supreme Court.  But considering what appears to be the support there for the notion that the speech at issue enjoys constitutional protection, it’s hard to see the Court upholding a bill that, for instance, restricts the First Amendment rights of organizations just because they happen to be government contractors.

In the main, The Media Institute’s opposition to McCain-Feingold has focused more on that legislation’s impact on “issue ads” rather than direct political contributions.  But given the mischief, not only inherent in but positively intended by the bill’s sponsors, the hope here is that, whether by filibuster or force majeure, the DISCLOSE Act will be put to rest in the Senate.

As they say in the ad, “Just Do It.”

Congressional (Mal)intent

Einstein’s Special Theory of Relativity postulates that it’s impossible for anything to go faster than the speed of light. More impossible still is the ability of Congress to honorably handle First Amendment issues.

The latest example of this dolorous state of affairs can be seen in the so-called DISCLOSE Act. Aimed at curbing what its Democratic sponsors claim are flaws in the Supreme Court’s campaign finance decision (Citizens United vs. FEC), the formal name of this legislation is the “Democracy Is Strengthened by Casting Light On Spending in Elections Act.” Seriously.

Not to put too fine a point on it, the difference between this Act’s intended impact and its stated goal is the difference between flapjacks and flapdoodle. In fact, the difference may be even greater than that. The Act is so dense and lengthy, who knows what’s in there? Could be anything. The only people who are going to know for sure are those communications lawyers who find gaping holes and contradictions in it–and don’t think for a second they won’t.

With this kind of opacity we can’t yet identify all of the Act’s “microflaws,” but its “macroflaws” are easily spotted: It burdens political speech in ways that are intended to discourage it, and it provides for the care and feeding of incumbents at the expense of challengers and the public at large.

We know the true intent of this legislation is to stifle political speech because the sponsor of the Senate bill, Charles Schumer, has admitted as much. As reported in Politico, though the legislation is “billed primarily as an effort to enable voters to determine who is behind ads attacking or supporting candidates, Senator Schumer…acknowledged that part of his goal is to limit the campaign spending newly legalized by the high court.”

“My view,” he said, “is that many CEOs of major organizations will air ads if they don’t have to disclose, but once they have to come up front and disclose, they will not do it…Anyone who wants to hide, will not do an ad after this legislation passes. And I think there are a lot of people who like to hide…so I think there will be many fewer of them.”

Apart from the DISCLOSE Act’s transparently fraudulent claim to a kind of “good government” motivation, the Act burdens business and nonprofit political speech by requiring so many on-air disclosures there would be little time left for a message of any kind, and by requiring CEOs of the sponsoring organizations and their major donors to do a kind of “I stand by this message” statement in the ad itself. The problem with this latter aspect is that this statement threatens to subject all such to retaliation and harassment by candidates, parties, and interest groups who disagree with whatever the message might be.

Another malevolent aspect of the Act, as analyzed by the Center for Competitive Politics (CCP), is that the legislation “would prohibit government contractors and U.S. subsidiaries of foreign companies from engaging in independent political expenditures.” This, from a group of politicians who, until the recent unpleasantness, were among the most fervent supporters of Acorn, an organization that attempted, in the name of “political inclusion,” to register the quick, the dead, and the never were.

A third macroflaw, and the one that shines a bright light on the sponsors’ true motives, is the provision that provides “candidates and parties the lowest advertising rate whenever an independent group airs ads in a given media market.” As the CCP observes, “This is a nakedly self-dealing attempt to punish independent groups for speaking out against Members of Congress.”

In a recent note, attorney Jan Baran, the esteemed election law expert at Wiley Rein, summarized this aspect of the DISCLOSE Act as follows: “The lowest unit rate provision manifests the politicians’ twofold strategy, which is as follows: first, do everything you can to burden and discourage public commentary about them; and if that doesn’t stop the speakers then give the political parties (which the politicians control) cheap TV and radio time at the expense of the broadcasters.”

“As you know,” he said, “the history of ‘reform’ is the history of politicians seeking to control political debate.”

The particulars of this legislation to one side, there is another woeful aspect of the campaign to reverse the Supreme Court’s Citizens United decision, and that is the lack of integrity in the debate.

One of the (very few) advantages in growing old is that you get to personally observe a bit of the sweep of history. In my case that history goes back to the Warren Court, and to the frequent conservative criticisms of that Court’s decisions.

Back in those days such criticism was said, by all the right people, to be an attack on the Constitution itself. But fast forward to the present time and what do we find? The New York Times publishing an editorial, in the wake of Citizens United, titled “The Court’s Blow to Democracy;” the president excoriating those Supreme Court justices who were in attendance at a State of the Union address; and the Senate sponsors of the DISCLOSE Act announcing their legislation on the front steps of the Supreme Court, ironically enough in the same week that the Court announced, for security reasons, that the front entrance will no longer be available to the public.

Time will tell whether any or all of the Act’s provisions, if enacted, will survive judicial scrutiny, but in the meantime, and in the interest of “truth in labeling,” the Act should be formally renamed. A more accurate title would be the Hyper-Partisan Old Claptrap Reveling In Temerity Act.

The acronym? You figure it out.

First posted on Broadcasting & Cable, May 6, 2010

Citizens United and the Commentariat

Nothing’s quite so inspiring as the sight of journalists, in high dudgeon, trashing the First Amendment.  Such has been the rule since last Thursday, when the Supreme Court issued its opinion in the campaign finance case called Citizens United.

For the uninitiated, the cause of the hysteria, at places like The New York Times and The Washington Post, is the Court’s entirely correct decision to liberate political speech from the clutches of the Federal Election Commission, such that labor unions, for-profit and nonprofit corporations will hereafter be able to spend general funds on the placement of issue ads and other kinds of what the FEC refers to as “electioneering communications.”

Because campaign finance “reform” has always been a hotly politicized issue, it’s not surprising that politicians, from the White House to Congress, have weighed in on this issue with more heat than light.  But it’s something else again to see journalists – all of whom zealously guard and enjoy their own First Amendment rights – turn a blind eye to those same rights where they’re someone else’s.

The journalists’ criticism of the Court’s decision is (1) that it is unnecessarily overbroad; and (2) that it will allow corporations (by which they mean large for-profit corporations) to dominate the political environment by the fact, or threat, of campaign advertising.

Even if one takes these journalists at their word – that their motive is a value-free concern for the political process rather than a tawdry reflection of their own political biases – we can say without fear of contradiction that, at least in this regard, they value the political process more than they value free speech.

Among the citizenry generally, such sentiments would be neither unexpected nor especially hurtful, but when they issue from journalists they are both.  This, because as people who are professionally engaged in such matters know, the Speech Clause of the First Amendment is not divisible by its applications.  It doesn’t apply just to the print media or broadcasting, news or entertainment, professional journalists or people at large, but to all of these and then some.

And the simple truth is that if you weaken the First Amendment in any area you weaken the whole of it.  This comes about because of the way that precedent is applied, not just in the courts but in policymaking venues as well.

Corporations enjoy constitutionally protected speech rights even where the speech in question is just commercial speech (speech that does no more than propose a commercial transaction.)  There’s no question about this.  There is lots of case law, most notably in Central Hudson.  Given this, how much greater is the value, under the Constitution, of their political speech?

The constitutional weakness in the journalists’ criticism of Citizens United to one side, they are also wrong on its political effects.  Corporations, particularly large and publicly owned corporations, are loath to spend their general funds on election campaigns.  This, because they know that, by doing so, they will inevitably attract criticism from some of their stockholders, and from the disfavored party and candidate(s), in any given election.  Corporations much prefer to stay out of election contests, and to allocate even their PAC money to incumbents, or to both incumbents and challengers.

And what if, despite the general aversion, it sometimes happens that corporations do spend general funds on election campaigns?  Given their reluctance to get involved in this way, perhaps the public ought to hear what they have to say.  It’s not, after all, as though such corporations are without their constituencies.

Indeed, when you consider the vast number of stakeholders that any large company has among its employees, stockholders, vendors, and customers, the company’s views are vastly more representative and diverse than those, say, of the editorial board of The New York Times.

As for the argument that the Supreme Court overreached in this case, a couple of observations.  First, while a number of commentators are now saying that the Court should have allowed the Citizens United film ("Hilary: The Movie") to be broadcast without going further, that’s a point they didn’t make before the decision came down.

Much more importantly, this criticism ignores the history of this case, most importantly oral argument when it first came before the Court, on March 24 of last year.  It was at that time that the government, which was there to defend McCain-Feingold in the person of deputy solicitor general Malcolm Stewart, inadvertently spelled out just how speech-killing our campaign-finance system might be.

Asked by Justice Alito if the government believed McCain-Feingold would permit like restrictions were the product distributed on the Internet, or as a DVD or a book, Stewart responded that it could be applied to all of those, that it could even require banning a book that made the same points.

As Bradley Smith, writing in National Affairs, put it:

There was an audible gasp in the courtroom.  Then Justice Alito spoke, it seemed, for the entire audience: ‘That’s pretty incredible.’  By the time Stewart’s turn at the podium was over he had told Justice Anthony Kennedy that the government could restrict the distribution of books through Amazon’s digital book reader, Kindle; responded to Justice David Souter that the government could prevent a union from hiring a writer to author a political book; and conceded to Chief Justice John Roberts that a corporate publisher could be prohibited from publishing a 500-page book if it contained even one line of candidate advocacy.

In other words, it wasn’t until after they had heard this – straight from the horse’s mouth as it were – that the Court issued, in June, its surprising order that the case be reargued and expanded to include two of the Court’s earlier rulings.

Viewed from a First Amendment perspective, McCain-Feingold was the worst piece of legislation ever enacted and subsequently upheld as constitutional.  That so many journalists are unhappy with its undoing is a black mark on their profession and on them as individuals.

First published here on The Huffington Post, Jan. 26, 2010.

How Sweet It Is!

The opinion handed down today in the Supreme Court re McCain-Feingold is good news for everyone who values free speech in general, and political speech in particular.  The relief it grants to labor unions, nonprofit and for-profit corporations, who are now free to sponsor issue ads within close proximity to federal elections, is particularly gratifying and long overdue.

As congressional proponents of the Bipartisan Campaign Reform Act scramble to write legislation in an attempt to work around the Court’s decision, they will now have to confront this daunting fact: As of today, speech of the sort that was at issue in this case is constitutionally protected under the First Amendment.


A Unitary First Amendment – Redux

By guest blogger LAURENCE H. WINER, Professor of Law and Faculty Fellow, Center for Law, Science & Technology, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.

“[W]e don’t put our First Amendment rights in the hands of [government] bureaucrats.”  What an extraordinary statement for the Chief Justice of the United States to make when one considers the Supreme Court’s long history of allowing Federal Communications Commission (FCC) content-based regulation of broadcasting and other electronic media!

Chief Justice Roberts made this statement in last week’s oral argument of Citizens United v. Federal Election Commission.  Citizens United, involving “Hillary: The Movie,” is the little case that could – could just restore a strong measure of freedom of speech in the most critical of all contexts, namely political speech.

As described in an earlier post occasioned by the first round of oral argument in this case last spring, the narrow issue is the provision of the McCain-Feingold “Bipartisan Campaign Reform Act of 2002” (BCRA) that bans the use of corporate funds for “electioneering communications” via broadcast, cable, or satellite close to an election.  In the earlier argument some members of the Court were astounded by the government’s contention that Congress also would have the constitutional power to similarly ban printed material, including books.
This apparently led those members of the Court who long have been troubled by limitations on political speech imposed in the guise of campaign finance reform to set re-briefing and rearguing for an unusual and extended one-day September session.  And, the Court broadened the issue for rehearing by asking the parties to discuss whether the Court should overrule not only that part of its 2003 opinion in McConnell v. F.E.C. upholding the specific BCRA provision, but also the Court’s 1990 opinion in Austin v. Michigan Chamber of Commerce.  In Austin, over strong dissents, the Court upheld a state’s restrictions on independent expenditures from general corporate funds for ads supporting or opposing a candidate for state elective office.

Not surprisingly, the Court’s actions with respect to Citizens United prompted more than 40 amicus briefs with what the New York Times called “an array of strange bedfellows and uneasy alliances” and set the stage for high drama.  How far will the Court go in affirming the political free speech rights of corporations?  

Arguing briefly for Senator Mitch McConnell as amicus, Floyd Abrams reminded the Court that in New York Times v. Sullivan the Court eschewed available narrow grounds to resolve the case and instead issued a broad ruling to fully vindicate the vital First Amendment interests at stake.  And he told Justice Sotomayor that, similarly here, this is the way the Court would do more good than harm.

Solicitor General Elena Kagan, making her debut appearance on behalf of the FEC, tried to reassure the Court that the government’s position on printed campaign speech had changed.  Don’t worry, she suggested, the FEC has never tried to ban a book, though when pressed she immediately stated a pamphlet might be different.  And this is when Chief Justice Roberts made his comment about not relying on FEC bureaucrats to protect the First Amendment.

But the Court has left countless First Amendment matters in the hands of the government bureaucrats at the FCC at least since Justice Frankfurter’s 1943 opinion in the seminal NBC v. U.S. case in which, in a single paragraph, he subordinated the First Amendment to the public interest standard of the Communications Act.  This later caused Professor Harry Kalven to comment that: “The passage catches a great judge at an unimpressive moment.”  

Over the years, the Court’s deference to the FCC has allowed all manner of infringements on free speech in the name of the amorphous public interest, from the now-defunct (but perhaps soon to be resurrected in some version) fairness doctrine, to the recent debacle over broadcast “indecency,” and maybe to a threatened similar campaign against violence in the media.

But members of the FCC, no less than of the FEC, have no expertise or competence in First Amendment matters.  This is not a comment on any present or former members as individuals; rather it is the basic recognition that the First Amendment disables any government bureaucrat from claiming or exercising any province over matters of free speech or free press.  “Congress shall make no law” is a straightforward “hands-off” policy for government bureaucrats.

During last week’s argument of Citizens United, Justice Breyer suggested to Ted Olson (representing Citizens United) that Congress had a compelling interest for the restrictions it enacted and thought it had narrowly tailored them.  So, the justice asked, should the Court really second-guess Congress?  Mr. Olson forthrightly replied, “You must always second-guess Congress when the First Amendment is in play.”  Exactly so, regardless of the medium of communication at issue, and a fortiori must courts stringently second-guess the FCC when it is infringing free speech, directly or indirectly, as it is wont to do all too frequently.

Whatever the ruling in Citizens United, we can only hope the chief justice’s words reverberate loudly the next time the FCC seeks to sustain an infringement on free speech or press in the name of the public interest.