IN LEGAL ARGUMENTS...:

The Chance for a Free Speech Do-Over: Will the Supreme Court finally overturn McCain-Feingold and enforce the First Amendment? (THEODORE B. OLSON, 9/08/09, WSJ)

Public discussion about the character and fitness for office of presidential candidates is at the core of the First Amendment's command that "Congress shall make no law . . . abridging the Freedom of Speech." Yet Congress, in its zeal to impose onerous campaign-finance restrictions, has made political speech a felony for one class of speakers. Corporations and unions can face up to five years in prison for broadcasting candidate-related advocacy during federal elections.

Is outlawing political speech based on the identity of the speaker compatible with the First Amendment?

...the truth is most often to be found by reference to the manner in which an argument is disingenuous. Thus the notion that a corporation is a "speaker: in any First Amendment sense. The reality, of course, is that the very purpose of the corporation is to be divorced from the normal responsibilities -- and, therefore, rights -- assigned to individuals: "the defining feature of a corporation is its legal independence from the people who create it."

What the Court ought to do to bring campaign finance law into harmony with the 1st is to uphold all restrictions on corporations and like legal entities but strike down those upon political speech by individuals (provided that it is not subversive--obviously the Constitution setting up the American regime can not be read to protect speech intended to destroy that regime).

Posted by Orrin Judd at September 8, 2009 7:51 AM