Journalists are not the enemy
The determination of whether government conduct or speech has a chilling effect or an adverse impact is an objective one — we determine whether a similarly situated person of “ordinary firmness” reasonably would be chilled by the government conduct in light of the circumstances presented in the particular case.
The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under § 441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.
Taking what he calls his “improbable journey” to the heart of Europe, Barack Obama succeeded in closing down one of Berlin’s main thoroughfares tonight, luring the city’s young in their tens of thousands to stand in the evening sunshine and hear him spin his dreams of hope, not for America this time, but for the whole world.
In terms of the First Amendment, let’s break that down a little more. The idea that we have to suppress certain speakers to allow others to be heard is directly contrary to the First Amendment. As the Supreme Court said in Buckley v. Valeo, “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” A milder version that has been making the rounds is that we need to suppress false speech in order to maintain democracy, but as the Supreme Court has said, “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.”
The First Amendment, said Judge Learned Hand, “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.”