February 1st, 2007

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Free Speech in America - Dicey

Thursday, February 1st, 2007

It’s a roll of the dice. Will the Supreme Court, charged with applying the supreme law of the land, actually do so?

The Constitution is a robust but admittedly imperfect defender of our liberties. Still, its drafters did know how to speak and write plainly. When they wrote that “Congress shall make no law abridging x,” they probably meant “Congress shall make no law abridging x.”

Consider freedom of speech and the First Amendment. Consider the McCain-Feingold campaign finance reform that ago President Bush signed allegedly in hopes it would be overturned. But which the Supreme Court then rubber-stamped.

The law, several years old now, bans various organizations from speaking the name of an electoral candidate in a paid advertisement if that ad airs “too close” to an election. It’s Congress making a law abridging freedom of speech.

Now it’s being challenged. Columnist George Will noted recently that “A three-judge federal court recently tugged a thread that may begin the unraveling of the fabric of murky laws and regulations that traduce the First Amendment by suppressing political speech. [T]he court held — unremarkably, you might think — that issue advocacy ads can run during an election campaign, when they matter most.”

The case is on its way to the Supreme Court, which has a slightly different slate of justices than it did in 2003. They’ll have a new opportunity to abide by the Constitution by throwing out parts of the McCain-Feingold law.

Will they do so? Keep your fingers crossed.

This is Common Sense. I’m Paul Jacob.