Thursday, March 17, 2005


Patterico has asked bloggers to consider the following pledge:
If the FEC makes rules that limit my First Amendment right to express my opinion on core political issues, I will not obey those rules.
I'll certainly do so, but as I've stated before, I wonder if will let me do so for long.

Some bloggers won't. Michael Williams has moral qualms:
I'm somewhat torn. On one hand, as a Christian I'm generally a fan of obeying the rules, even when they're rules I don't like. As long as a law doesn't prevent me from carrying out God's will -- through evangelism, discipleship, ministry, fellowship, and worship -- then it's hard to spiritually justify disobedience.

...On the third hand, it's not obvious, that potential speech restrictions by the FEC actually qualify as "evil". Sure, speech restrictions lay along the path to evil and oppression, but as Eugene Volokh has often argued, the slippery-slope argument is over-used without justification.

To which Xrlq responds:
A regulation that contradicts a statute or exceeds its statutory authority is void, as is any statute that violates a provision of the Constitution. McCain-Feingold strikes me as a pretty clear violation of the First Amendment, even more so if it is extended to reach ordinary blogs like yours or mine. While most of the world's religions may agree that we have a duty to obey valid laws, I don't know of any religion that requires its adherents to obey "color of law.

I agree with Xrlq, that the clear language of the First Amendment precludes the Bipartisan Campaign Finance Reform Act. If a majority of Congress, the Supreme Court, and the President don't care, so what? The sole basis of their authority over me is the Constitution. That attitude may not flow from the Holy Spirit, but an assertion of individual intellectual and political independence strikes me as fully in line with the doctrine of the soul and the full spiritual equality of humanity.

I would further argue that with the criminalization of political speech, we're not approaching oppression, we're already there. Contrast the Court's attitude towards political advertising with lap dancing: not only are city zoning commissions forbidden to ban lap dancing, they're forbidden to set up zoning restrictions that limit the number of available sites for strip clubs to an intolerable number.
It is unconstitutional for your city council to block strip joints within blocks of schools or churches if that leaves the red light district only a handful of sites in town.

Where is that delicate sensibility towards the freedom of expression when it comes to Americans demanding a clean sweep in November?

Roscoe also has doubts about the propriety and utility of a demand for complete liberty of political expression:
So, where do bloggers fit in? Look at this post from Kos, this isn't free speech, this is fund raising, pure and simply, which would have to be reported as an in-kind contribution even if it appeared in a newspaper. And, given the traffic on Kos' site, the contribution probably has substantial value. And remember, Kos was a paid consultant for the guy for whom he is fund raising. So, if we accept that some regulation of money in politics is acceptable, why should Kos escape regulations because he might be wearing his pajamas?
Look, if you were in a barbershop with Kos, should he be allowed to tell you who he's voting for this November without being fined or jailed?
Should he be allowed to urge you to vote the same way without being fined or jailed?
Should he be allowed to tell you about the office downtown where you can volunteer time or money without being jailed?
If he can do all that in conversation, why can't he do so from a soapbox? Or over the phone? Or over the radio? Or over the Internet?
If the premise that "money in politics justifies regulation" leads you to calculating the Fair Market Value of a FREE posting on a blog, for the purposes of fining the blogger for a unreported donation in kind, then either we rip up the First Amendment or we rethink the premise of justifiable regulation.

The notion that complaints about the Court are a "slippery-slope" fallacy has some merit. There is no slope, we're in free-fall. McConnell v FEC, like the sodomy rights case, like the ban on execution of juvenile offenders, like the recent wacko CA court that rejected common law as any guide to the definition of "marriage"---those aren't the basis for future cases at all. They're one-offs, they're unique concoctions of legalese goobledegook to justify that verdict. The majority justices would be the first to object if a phrase or paragraph were quoted out of context in another case; they aren't meant to be interpreted, just blindly obeyed.

The Supreme Court may be confused about whether I have unilateral guarantees of freedom from my government, but I'm not, and I won't go along to get along.

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