Contracting the First Amendment

This web site is not often given to advocacy except in the sense that it advocates good journalism and good journalistic practice. One subject on which we have no trouble advocating, however, is the First Amendment. We believe wholeheartedly that the First Amendment – while it is not absolute in its protections – should be interpreted expansively. We should seek ways to extend the First Amendments rights of speech, press, religion, assembly and petition.

Our modern society rarely undertakes such a task. Instead, there are many organizations and people who have little problem in contracting those rights, particular in the name of achieving some societal “good.”

One such case comes recently from the state of Washington.

There, two talk-radio jockies ardently gave behind a citizens petition drive to rescind a law hiking gasoline taxes. The petition drive was design to put an initiative on a statewide ballot in November that would eliminate the law. The talk radio hosts were engaging in a clear case of political advocacy, fully protected by the First Amendment.

Or so we would think.

A local judge, however, bypassed the First Amendment and ruled that the air time the radio hosts devoted to their advocacy constitutes a “campaign contribution” under the state’s campaign finance acts. It must then be reported as such and is subject to the law’s limitations on campaign contributions. As Seattle construction attorney Michael Lamonsoff put it:

The state regulators would essentially evaluate the cost of airtime on KVI (the radio station that aired the advocacy), or conceivably if the amount of editorial space in a particular newspaper and the like, and then at some point it would be illegal to make any more editorializing in support of a particular candidate or an opposition to a candidate.

Johnson was interviewed in a segment for WNYC’s On the Media.

Controlling the amount of money devoted to political campaigns is thought to be a societal “good,” but in this case, a judge has used it to open the door to a restriction on First Amendment rights. This is certainly not the first time that so-called reforms have endangered the exercise of free speech. It probably won’t be the last.

This would be a good case for your students to wrestle with. Have them read the interview and possibly some other information about this case and begin a discussion with this question:

Is the government’s ability to restrict campaign contributions more important than a citizen’s right to exercise free speech?

Posted August 8, 2005.