Sunday, December 09, 2007

Political Free Speech Versus Commercial Free Speech

In a Sunday post, I pointed out on McHenry County Blog that Democratic Party Congresswoman Melissa Bean was complaining about robo-calls made on behalf of 2006 Republican Party challenger David McSweeney.

Shawn left two comments. The first starts with a comment made by me:

"Apparently the congresswoman does not appreciate the difference between commercial speech and political speech—the most protected under the First Amendment."

This is just an asinine statement.

1.) Where do you see a distinction in the constitution between "commercial" speech and "political" speech? If you want to claim that we should interpret the constitution literally (ie "strict constructionalism"), then you can't claim distinctions that aren't explicitly made.

2.) Freedom of speech ensures that you are free to say what you like, when you like. It does not ensure that I have to listen to it. Calling my home invades my privacy and imposes your will upon me. I have a right to restrict/prohibit that kind of activity in my home. You have a right to urinate on your own floor if you so choose, but you can't do it in my home...

"3.) The calls in this case are deceptive. That might not be illegal, per se, but it tells an informed voter that their sponsors are unwilling/unable to identify their own candidate's merits." [Sorry. I missed this part of the comment when I copied it.]
Here is his second comment:
Lest there be any confusion, here's the text of the First Amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Please identify the passage(s) that emphasize greater protection for "political speech" rather than "commercial speech" (or any form of speech for that matter)....
For starters, let me admit that the calls made against Bean seem designed to hurt her chances of re-election.

But so were the calls the weekend before one election in the late 1990's when someone phoned lots of people saying I wanted people to be able to carry handguns in the supermarket checkout line.

No chance for rebuttal there, but clearly protected by the First Amendment, it seems to me.

So, just because a phone calling campaign is unfair or contains lies is not a reason for Congress to enact another law that would make it still harder for an incumbent to be unseated.

If an opponent wants to act inappropriately, let the voters punish him at the polls, I figure.

And, if an opponent gets elected by telling lies, the incumbent can always start a blog.

But, back to my contention that political speech has a higher value than commercial speech.

I knew I didn’t dream up that concept, so to Google’s search engine I went.

“Political ‘free speech’ vs commercial” brought me an article by Jay Huber entitled,

The High Cost of Free Speech
In U.S. courts, freedom of speech
increasingly means freedom to advertise

Here’s how Huber puts what I was talking about:
“Historically, advertising didn’t receive the same constitutional protection as political speech, one form of free speech the Founding Fathers had in mind when they drafted the First Amendment. Political speech was valued for its role in guiding us toward a more just, democratic society, ‘a more perfect union.’"

“…RIGHT: The Founding Fathers considered free speech an inviolable right of citizens, essential for self-expression and self-realization. although the First Amendment doesn't distinguish free speech from commercial speech or advertising, it's a pretty safe bet than a twelve-story billboard on 6th Avenue in Manhattan isn't what they had in mind.

“There’s no doubt that political speech was at the core of the Founders’s concerns when they drafted this phrase, and by its adoption they established an ideal that robust debate was healthier for the people than suppression. This notion took on a defining metaphor when Justice Oliver Wendell Holmes first wrote of the 'marketplace of ideas' in 1919, likening the proliferation of opinions to a cultural bazaar. Although Holmes was writing in dissent, the Supreme Court’s jurisprudence eventually backed him up…

“… the phrase 'commercial speech' did not even appear in any decision of any court of the United States until 1971.”
So, I reassert my contention that political speech is more important than commercial speech.

If you would like to read the “Central Hudson test” for regulating commercial speech, you can do so in Huber’s article.

If the content of political robo-calls are to be limited, then the content of political ads could be next.

Naturally, some organ of the government, that is, the incumbents would be in charge of the censorship.

That would not be good for democracy.

As Huber notes,
”…political speech once suppressed may stay squashed. “
And as Justice John Paul Stevens wrote in 1996 (which Huber quotes):
"The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good."

7 comments:

Shawn 8:57 PM  

"RIGHT: The Founding Fathers considered free speech an inviolable right of citizens, essential for self-expression and self-realization. although the First Amendment doesn't distinguish free speech from commercial speech or advertising, it's a pretty safe bet than a twelve-story billboard on 6th Avenue in Manhattan isn't what they had in mind."

This is the kind of folly that my earlier posts were meant to debunk. The first amendment makes no such distinctions. Only someone that wants to interpret the constitution and/or divine the framers' intent would make such claims.

The problem with that approach is that it would foce you, Cal, to accept such modern interpretations as the right to privacy (the underpinning of Roe vs. Wade) and the current application of "separation of church and state." Additionally, this style of interpretation is typically touted by those promoting the expansion of gun control.

Somehow, I don't think you subscribe to those views. Either the constitution says what it says (explicit declarations), or it is a document to be interpreted and its meaning construed. But, you can't haveit both ways just to satisfy your views on individual subjects. If we all do that, there's no point to having a constitution at all.

Finally, my first post had a third point you didn't quote:

"3.) The calls in this case are deceptive. That might not be illegal, per se, but it tells an informed voter that their sponsors are unwilling/unable to identify their own candidate's merits."

I would say this applies to Bean's challenger... as it would to whomever did the same to you.

Shawn 8:58 PM  

Also, to be clear - I don't think that the content of any speech (political, commercial or any other form) should be regulated in any way. I also don't think that political ads should be limited in any form (in terms of content). I think McCain-Feingold is an affront to liberty.

That said, I don't think "robocalls" have a right to call me. If I wish to proactively put myself on a list that prevents campaigns from contacting me I should be allowed to do so. That doesn't prevent the campaign from speaking, nor does it restrict the content of the speech. It merely reaffirms my right to choose not to hear it.

If robocalls have some right to reach me in my home, then we better be prepared to extend the same rights to the lunatics carrying "The end is near!" signs.

steve schnorf 1:20 AM  

Cal, you are exactly right in your statement regarding political vs commercial free speech and Shawn is out to lunch in his.

Shawn 9:38 AM  

Steve:

Please direct me to the passage in the constitution that emphasizes political speech over any other form of speech. I'm anxious to see where the literal distinction is made....

DuPage Saint,  11:53 AM  

The constitution is not what the constitution says, it is what the Supreme Court says.

steve schnorf 2:21 PM  

Shawn, show me the line in the Constitution that gives the FAA the ability to regulate aviation. Saint seems to understand, why don't you?

Shawn 5:57 AM  

Steve:

Aviation is not a right expressly provided to all citizens in the constitution... you know, the BILL OF RIGHTS.

So, again, where is the distinction?

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