If the last few weeks have taught us anything about free speech, it’s that too many Americans support censorship. It should be no surprise that less-obvious speech problems like campaign finance laws are not widely recognized. But beneath the complexity, the problems and principles to combat them are the same.
One of the more amusing lawsuits I’ve counseled was Williams v. City of Cheyenne early last year. Ron Williams, a Cheyenne, Wyoming resident, wanted to put up signs in his yard supporting several political candidates in the November 2014 elections. But the Cheyenne Unified Development Code, enacted in the months prior, limited Williams to putting up two signs and only for a short period of time around the actual election. The case was serious, as it unconstitutionally limited Williams’s speech, but amusing because about two decades earlier Ron had successfully sued the city of Cheyenne over a substantially similar ordinance. History really does repeat itself sometimes, but thankfully the second time around the city quickly settled and the ordinance was repealed.
Still, some managed to argue in favor of Cheyenne’s sign limitations. Arguments usually went like this: “Surely, Ron could make do with two signs? Imagine how ugly one could make their yard with all this freedom! What if the signs affect the value of neighbors’ property?! It’s not censorship, it’s [choose a synonym for ‘censorship’]!” I only wish I was making up this line of reasoning. It amounted to such a tenuous justification that accepting it would leave free speech meaningless. But such rationalizing is par for the course.
Instead of justifying censorship, some go even farther and argue that some speech as not speech at all. An attack by Islamic extremists on a gathering featuring a draw-Mohammed contest was thankfully brought to a quick end a few weeks ago in Galveston, Texas. Since then, the media continues to discuss “hate speech” like it’s distinct from “free speech.” Some pundits and reporters even found lawyers and public officials who actually believe there is some exception within the First Amendment to really offensive speech. No such exception exists: when freedom of speech is not dependent on the sensibilities of speakers but listeners, speech is simply not free. Dissent, one of the key reasons we have a First Amendment, is often by its very nature “offensive” to those who disagree. Sadly, one recent poll shows a substantial percentage of Americans would support outlawing “hate speech,” whatever that might be.
The most complex approach to censorship for censors to claim that they are the ones being censored or otherwise harmed. Some students at Northwestern University recently filed Title IX complaints against a professor for writing an article that called for, among other things, universities to treat students like capable grown-ups. The students claimed this was “retaliation” for some other legal complaints and that the article chilled students from fully participating in the academic environment. Title IX was never meant to be used this way, but like so many laws has been mutilated over time to serve ulterior motives. Although this particular saga appears to be at an end, university professors across the country continue to cower wondering “if—and at some schools, let’s face it, you wonder when—it’s going to happen.” The censorship and chill of this approach is obvious, but nevertheless some cling to the notion—without any sense of irony—that some words are so dangerous that speakers must be punished.
All of these approaches are also, not coincidentally, staples of supporting campaign finance regulation. We must limit the money spent on political speech—including documentaries about candidates—because of corruption! Or something. “Money is not speech!” some cry, drawing some solemn nods without recognition that even the simplest political advocacy—like Ron Williams’s yard signs—costs money. Finally, as campaign finance laws are stretched and constantly redefined, they can be used against anyone, since everyone participating in politics can be accused of violating a law without meaning. Those wielding this “lawfare,” of course, claim they are defending democracy while punishing those who simply participate in it.
Given the disregard for free speech basics, it is not surprising that so-called campaign finance “reform” continues to garner support that is far more overwhelming than already-too-many who support punishing “hate speech.” Campaign finance law is so complex and loaded with easily served red herring that most people who have an opinion about, for example, the Citizens United case, have no idea that the law overturned in the case banned the broadcast of a movie and that, more chillingly, before the Supreme Court the government argued it could ban books. Sadly, like “hate speech,” there is a notable effort behind propagating ignorance, as websites ostensibly aiming to inform people such as Vox neglect to even discuss the facts of the Citizens United case.
The popularity of “reform”—or, at least, the popularity of the platitudes behind it—does not excuse the censorship inflicted by campaign finance laws and regulations. No matter how popular any form of censorship may become, popularity will not justify embracing it. Like liberty itself, there is no inevitability or guaranteed perpetuity for free speech. But so long as we stand strongly for it, it will always have a chance.