Late Monday, in a one-paragraph ruling, the Tenth Circuit Court of Appeals rejected our emergency motion for injunction pending appeal in the Free Speech v. Federal Election Commission case. Free Speech, formed in February, has remained silenced under FEC red tape since then, unable to comply with regulations that the FEC itself cannot interpret. Following this ruling, Free Speech will be unable to speak during the election cycle.
With charming bravado, the attorneys at the FEC proclaimed to the Court that the fact that we considered this Free Speech’s last “meaningful” opportunity to speak indicates that the grassroots group is a political action committee, subject to all the red tape put on groups that support or oppose candidates. Think about that for a moment: how receptive will you be to any ad discussing political issues in the weeks following the election next Tuesday as opposed to ads before then? Election cycles are the time when most Americans don’t just consider the candidates they want to vote for, but the issues that are most important to them. Just here at the WyLiberty office we’ve had a number of people we’ve never met before stop by to discuss issues with the election imminent. (By the way, please feel free to stop by any time if you want to talk about our research.) These issues will remain important after the election, but they simply won’t get the same amount of attention until, well, the next election cycle.
The Free Speech case continues, but in the appellate process things tend to slow down significantly. Hopefully Free Speech can live up to its name come 2014. Litigation is a war, not a battle, especially First Amendment litigation. We’ve come a long way since the dark days following McConnell v. FEC, and there’s light at the end of the tunnel for free speech.
It’s not just our case that’s exposing and fighting the thought police. Our friends at the Goldwater Institute in Arizona are going against outright censorship from government officials. In Korwin v. Cotton, a Phoenix man is challenging the city’s advertising requirements for bus shelters. He took out an advertisement for his website that connects visitors to training services for carrying concealed firearms, with a bold pronouncement “Guns Save Lives.” Somehow, this violates Phoenix’s requirement that bus shelter advertisements must “propose a commercial transaction.” Much like the FEC, city officials can’t explain how the ad violates the provision or what kind of ads would meet the requirement, but apparently that’s just fine.
“I know it when I see it” is a joke of a First Amendment standard, but to many government agencies it remains a first principle. Vague and overbroad laws let government agents make up the law as they go, meaning restrictions hang over the heads of speakers, enforced on the whim of the government. When one cannot understand what a law means, one will usually take extra precautions to avoid its grasp. Instead of risking criminal or civil penalties for noncompliance, or having an advertisement removed, speakers will often simply decide not to speak out. And then the state comes after your other freedoms.