Free Speech Under Attack
If we are to remain a free people, we need the foundation of the First Amendment. Free Speech guarantees every individual the freedom to express private opinions and beliefs publicly. Without public discourse and the freedom of associations, we will lose the greatest gift from our founding fathers.
The Irreparable Harm of Wisconsin John Doe
The Wisconsin "John Doe" campaign finance inquisition is a sordid tale, one of the most jarring examples of the criminalization of politics in American history. Using a secret process usually reserved for investigations of organized crime like drug trafficking, prosecutors in Wisconsin targeted a number of politically-engaged citizens with tactics that included raids of their homes and seizures of vast troves of documents. Though neighbors witnessed the raids, the targets were prohibited from speaking about the investigation. Some, thankfully, broke these gag orders, and with the end of the case other victims are now speaking out.
Just before Pillar officially launched last year, we filed a friend-of-the-court brief in the case with the Wisconsin Supreme Court on behalf of our parent organization, the Wyoming Liberty Group. We argued against the unconstitutional overbreadth of Wisconsin’s regulation of campaign “coordination,” showing that the prosecutors’ theory was a limitless tool for censoring free speech. The court agreed, shut down the investigation, and an appeal to the United States Supreme Court was denied in October. The investigation is over.
The damage, however, is not so easily undone. A powerful new video from People United for Privacy illustrates the aftermath:
As the John Doe cases proceeded, so-called campaign finance reformers engaged in what I would call a coordinated smoke-and-mirrors effort to discredit different parts of the victims’ defense. Ultimately, I argued, whether the targets of the investigation actually did things that were unsavory or that could be regulated did not assuage the problems with the existing law and the prosecutors' application of it. Moreover, even if the targets embellished or lied about how they were treated by law enforcement, this also does not speak to the unconstitutional legal basis for the investigation. These are hardly novel themes in campaign finance, political law or, for that matter Constitution 101—even the most corrupt people are entitled to their constitutional rights—but these themes bear repeating since the legion of regulation proponents have yet to acknowledge them in practice.
By being so committed to stopping nebulous notions of corruption and convinced that they are saving an even more hazily-defined democracy, reformers too readily support laws and prosecutions that punish citizens who are the very ingredients to any free government. My own folly, particularly in the John Doe cases, was to ignore this harm myself and focus on the law. Indeed, though the First Amendment ultimately won, this victory rings hollow for many who endured John Doe. Unlike extensive legal debates, it is their stories that might change public perceptions about campaign finance reform. Hopefully more such experiences will be shared, so that someday such censorship is truly but an unpleasant oddity in American history.