10.01.2008 0

Free Speech Prevails in North Carolina

  • On: 10/09/2008 11:26:59
  • In: First Amendment
  • In an era when the First Amendment is increasingly coming under assault by Big Government, especially when it comes to campaign finance regulations, it is always a victory for individual rights when any of those laws are struck down as the unconstitutional tripe that they are.

    The First Amendment was adopted specifically to protect political speech, but that has not stopped governments at Federal, State and local levels from adopting laws that see fit to restrict and regulate such speech of individuals and organizations as well as the functioning and activities of said organizations. It therefore falls upon those parties so restricted to challenge the constitutionality of such laws, and the courts to strike them down.

    Most recently, in the decision, North Carolina Right to Life v. Leake, from the 4th Circuit Court of Appeals, the court ruled against North Carolina’s onerous and unconstitutionally vague campaign finance restrictions. This ruling applied the precedent set by the Supreme Court in Wisconsin Right to Life v. FEC and Buckley v. Valeo, which struck down similar laws.

    North Carolina’s laws sought to regulate independent organizations like North Carolina Right to Life, and even normal political speech. The ruling in part struck down laws that sought to define as regulable speech communications whose “essential nature” was unclear (i.e. did not include “express advocacy” for a particular candidate).

    This is quite a stretch, because based upon the statute it would be up to the executive branch to arbitrarily determine what did and did not constitute the “functional equivalent” of “express advocacy.” And worse, individuals and organizations engaging in political speech would have no way of knowing if the speech they were engaging in was protected or not.

    For example, under the law, the language of the advertisement itself could be considered. Was it favorable to one candidate or another’s favored issues? If the timing of the ad coincided with elections that too could be considered, as could whether the ad was directed at a “significant number of registered voters for that candidate’s election”. The law encouraged regulation where it could be “interpreted by a reasonable person as advocating the nomination, election, or defeat of that candidate in that election.” Such a standard, the court ruled, was unconstitutionally overbroad and vague.

    The court also ruled that North Carolina’s definition of a political committee was unconstitutional. The regulation stated that an organization was a political committee, which is subject to very onerous reporting and disclosure requirements, if it “Has as a major purpose to support or oppose the nomination or election of one or more clearly identified candidates. [emphasis added]” However, as the court ruled, that would encompass two or more individuals who express any advocacy for or against candidates. From the ruling:

    “[W]e are convinced that the Court in Buckley did indeed mean exactly what it said when it held that an entity must have ‘the major purpose’ of supporting or opposing a candidate to be designated a political committee. Narrowly construing the definition of political committee in that way ensures that the burdens of political committee designation only fall on entities whose primary, or only, activities are within the ‘core’ of Congress’s power to regulate elections… Permitting the regulation of organizations as political committees when the goal of influencing elections is merely one of multiple ‘major purposes’ threatens the regulation of too much ordinary political speech to be constitutional.”

    Of course, ALG News would question the propriety and constitutionality of regulations against political committees whose primary purpose was to support or oppose the election of candidates for elected office for the same reasons that it opposes such regulations against organizations that have several purposes. This decision does the right thing in striking down the latter, but it did not rule on the former.

    However, the court did acknowledge that such regulations could also be problematic for the same reasons. In the words of the court, even regulating organizations whose primary purpose was supporting or opposing candidates for elected office “may be
    open to interpretation.” It seems to defend such regulations because they are deemed permissible under the precedent set in Buckley v. Valeo, and because it views the court’s authority as being limited to upholding Supreme Court precedents.

    Therefore, to go even further in overturning campaign finance regulations, which seek to distinguish between regulable election-related speech and protected political speech –what exactly is the difference there? – the Supreme Court ought to reconsider its approach that it established in Buckley.

    Because, the First Amendment makes no such distinction, and it is beyond the scope of legitimately-exercised powers of legislatures at the Federal, State and local levels to attempt to make such distinctions.

    ALG Prediction: The next major threshold in restoring the First Amendment’s freedom of speech protections will be to overturn all regulations that restrict the functioning of so-called “political committees.” That is because those regulations too have a “chilling” effect upon the exercise of political speech just like regulations against individuals and organizations that, amongst other activities, advocate for the election or defeat of candidates. In other words, if it is unconstitutional to regulate the speech and activities of organizations that have as “a major purpose” such advocacy, then it cannot be constitutional to regulate the speech and activities of organizations whose primary purpose is such advocacy.


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