The More Speech, The Better?

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Adam Bonin has, as the old saying goes, forgotten more about election/campaign finance law than I will ever know. His work on behalf of bloggers – on both sides of the aisle – to persuade the Federal Elections Commission to continue to exempt blogs from McCain-Feingold was invaluable in preserving the very nature of the political blogosphere. And when the ramifications of regulating blogs are considered (assigning value on links to candidate websites, considering the time devoted to blogging a certain campaign, etc.), Bonin should be a charter member of the Blog Hall of Fame.

But that’s not to say that I share all of Bonin’s views on regulating the internets. His latest post patting Red State founder Mike Krempasky on the back for defending the once-anonymous Hillary Clinton/Apple ad is a bit naive for my tastes. He points to Krempasky on CNN‘s Reliable Sources with Howard Kurtz:

KURTZ: And the anonymity doesn’t bother you at all? What about an ad that made false charges and we didn’t know who put it up?

KREMPASKY: Well, A, I think that anything in this new area of politics that is substantive, does that make specific factual claims, is going to come out a lot quicker than this one did. There’s just going to be more of a need for people to know. And in this case, look, the system did work.

Someone put up an anonymous video. It got a lot of attention. And all of the sudden, now we know who it was.

Ads with false charges bother me. A lot. And even false TV and radio ads that end with the authority line of the group responsible still have the advantage of running for a few days before group members can be identified and the ad fact checked. All the while, the message airs. And as much as I’d like to place my faith in that other old saying “the antidote to speech you don’t like is more speech,” as long as the major news organizations continue to outsource their assignment desks to Matt Drudge, anonymous ads, most of them attacking Democrats, are going to have a disproportionate effect on elections.

I have no problem with people making You Tube ads, and no problem with people watching said ads. But make their authors sign their name. The anti-Hillary ad would have had much less impact had its creator been identified as an employee of Barack Obama‘s web developer. The ads will get uglier and less accurate if their origins are obscured by anonymity in the name of free speech. The damage they can do before being unmasked is nearly limitless. Is this what we should be advocating?

And as someone who nears the point of combustion anytime someone justifies campaign contributions as free speech, I fully realize that my position is less than pure. But it’s worth noting that it wasn’t just anyone who made the Hillary/Apple ad, it was an experienced professional, not some teenager with a pirated copy of Final Cut Pro. Only a very few people can afford to fund Swift Boat Liars-style campaigns, and only a few more can generate ads that look slick and are effective – just look at 99.9% of the entries in MoveOn’s 2004 competition for homemade anti-Bush ads.

That doesn’t sound like “people-powered politics” to me.

Comments

  1. Adam B. says:
    March 28, 2007 at 8:01 am

    Thanks for the kind words. God forbid something happens to me, send that first paragraph to whoever’s writing the obit. :)

    [It pays to self-Google]

    As to the substance, we’ve got a long history in this country of protecting anonymous political speech in this country, and I’d turn your attention to the Supreme Court’s decision in the 1995 McIntyre case, where Justice Stevens directly addressed the “false speech” point. Basically, the Court said, you can ban false speech without banning all anonymous speech, and Ohio couldn’t justify banning the latter group just to prevent the former. Excerpt:

    “The state interest in preventing fraud and libel stands on a different footing. We agree with Ohio’s submission that this interest carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large. Ohio does not, however, rely solely on §3599.09(A) to protect that interest. Its Election Code includes detailed and specific prohibitions against making or disseminating false statements during political campaigns. Ohio Rev. Code Ann. §§3599.09.1(B), 3599.09.2(B) (1988). These regulations apply both to candidate elections and to issue driven ballot measures. [n.12] Thus, Ohio’s prohibition of anonymous leaflets plainly is not its principal weapon against fraud. [n.13] Rather, it serves as an aid to enforcement of the specific prohibitions and as a deterrent to the making of false statements by unscrupulous prevaricators. Although these ancillary benefits are assuredly legitimate, we are not persuaded that they justify §3599.09(A)’s extremely broad prohibition.

    “As this case demonstrates, the prohibition encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources. [n.14] It applies not only to elections of public officers, but also to ballot issues that present neither a substantial risk of libel nor any potential appearance of corrupt advantage. [n.15] It applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance. [n.16] It applies no matter what the character or strength of the author’s interest in anonymity. Moreover, as this case also demonstrates, the absence of the author’s name on a document does not necessarily protect either that person or a distributor of a forbidden document from being held responsible for compliance with the election code. Nor has the State explained why it can more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection. We recognize that a State’s enforcement interest might justify a more limited identification requirement, but Ohio has shown scant cause for inhibiting the leafletting at issue here.”

    Feel free to email me to discuss further.