Buried in this article is what this case is really all about: whether the government can prohibit an advocacy group from attacking a candidate before an election. I don't care what the other attendant facts are, any honest reading of the First Amendment requires this question to be answered in the negative. It is hard to imagine a situtation that strikes closer to the heart of what the First Amendment is supposed to protect.

This line of thought is only valid if one considers a corporation to be a person. The founding fathers of our nation certainly didn't think so.

Yours is not conservative idealism -- it is fascism, plain and simple.

So, if the government bans corporations such as the Washington Post Co. from spending any money publishing newspapers, no First Amendment violation?

Corporations are associations of persons. That's why they should be entitled to First Amendment protection.

Does a multi-billion-dollar corporation get billions of times more "free speech" than an individual?

JackHughes:

Does a multi-billion-dollar corporation get billions of times more "free speech" than an individual?

Probably, but so what? By this rationale, George Soros, Ross Perot and Steve Forbes have "more" speech than you or I do. The relevant question isn't a comparison of how much various people or entities speak; the relevant question is whether each of us is free to bring our ideas into the marketplace and express them without government interference.

And for the tool who threw out the "fascism" charge, grow up.

If the value behind the First Amendment is making available to the republic an open and vital discussion of policy choices, then the issue is not so clear.

First, we have to consider and distinguish between founder's understanding of the First Amendment and our own. The notion of the First Amendment we now embrace is recent and different from the one the founders embraced. Public sedition laws and private defamation laws (not to mention duels) were understood by the founders to be a check on slander. The only difference between Adams and Jefferson on sedition laws was where they were prosecuted: Jefferson preferred state courts where his political party was stronger.

At the founding, access to the marketplace of ideas (though the usage had not be yet coined) was fairly open. The cost was limited to the cost of putting up a printing shop. Delivery of published political materials was heavily subsidized by the public for several decades commencing with the founding. A vibrant and self-countervailing press functioned. All viewpoint found effective publication.

Congress itself refused to accept petitions on issues it preferred not to consider. Even members of Congress were prohibited from mentioning certain issues by the very rules of Congress itself.

I won't get into the many suppression of free speech exercised under state law prior to the adoption of the 14th Amendment and its much later incorporation of the 1st Amendment against state laws, but it can be observed that the founders expected local postmasters to intervene to limit abusive speech. They did so until after World War II.

Needless to say, the postmasters don't have that power today. Nor is there open access to the most important media for discussion of public issues: There are only a few gatekeepers for national electronic media. Government licensure of broadcast airways is a barrier to access to the marketplace of ideas.The cost of putting up networks and news departments limit access to a very few. The cost of making this political infomercial for showing on networks show how far we have come away from having an open forum for public discussion of issues: money has become a condition precedent to having an effective voice.

Add to this picture two other particular developments of the 20th Century: political propaganda as a motivator of public behavior and marketing science as a manipulator of public behavior. To deny that these developments affect the functioning of this electoral democracy is to deny reality. The tail can and often is wagging the dog.

More relevantly, the Supreme Court and Congress have disabled the forums previously available for corrective speech and inhibiting false political speech: dropping the Fairness Doctrine and adopting the legal principle that courts are out of the business of regulating political speech as a tort.

More and more, money becomes the mother's milk of politics: the determinative mechanism for that nation's political choices. GE, which owns a national TV network, does not allow serious discussion of the role of the military-industrial complex in society to take place on its network. Mr. Murdock uses reckless partisanship on his network as a tool for maximizing profits. More and more, our politicians are beholden to monied individuals for their political fortunes.

Do you deny these observations are valid?

Let's get back to the purposes l of the 1st Amendment: providing for a robust national discussion of policy choices. This attack on Hillary was more personal than any discussion of particular policy choices. No one can doubt that the people who funded this attack did so to affect the public consideration of political choices by demonizing her as a person. The intent was to run this infomerical right before the election, so there would be no opportunity for a "corrective" response. I have to be careful when discussing Hillary because I tend to demonize her in my own mind.

The bottom line is that money as a political tool is not protected speech: it undermines a healthy republican marketplace of ideas. Money as political speech should not be protected by the First Amendment--no matter how strongly Scalia feels it must be. The attempt to restore the marketplace of political ideas to a healthy forum requires management of money in politics.

Which brings us to the instant issue: Do you doubt the anti-Hillary "documentary" was funded for political purposes? If so, is not the use of money an attempt to influence voters and does not the substance of the presentation, delivered as was intended on the eve of the vote, represent an attempt to undermine a healthy balanced marketplace of ideas?

Our First Amendment law is a relatively recent invention of modern times. Absolutist views always end up steering policy toward self-destructive results. Regulating any single incident of manipulative speech is not abusive to the First Amendment so long as it is done for the goal of protecting the values of the First Amendment and administered without regard to content. As it is now, all broadcast electoral speech falls under the FEC regulations without regard to content. The prohibition is a prohibition on using the time of publication as a unhealthy manipulation of the marketplace of ideas. The law recognizes realities that it is dangerous to ignore.

The more central issue is the role of money in our democracy. First Amendment absolutism protecting that cancer on the republic can only lead to a less democratic nation.

It already has.

Thank you for the well reasoned response. It says historically correct points I can get behind. We do need campaign reform that protects free speech and not the speech of entrenched interests. however it's a minefield we can't seem to all agree to crackdown on and legislate a balanced playing field without restricting free speech altogether.

This is a "Core " issue all right, but the problem really is that Corporations are not really "Individuals" at all; that was a legal fiction created in the 19th Century (by the Courts) for the benefit of "Business"; Corporations really shouldn't qualify for "Free Speech" . disigny

Obviously, they do..disigny

What we have here appears to be a fundamental difference of opinion of what "free speech" means, and it's the old distinction between a negative and a positive right.

From your post, you appear to believe that "free speech" is basically a government program, and that the government should be aggressively regulating the "speech" market to ensure "fair" representation in that marketplace. Your post reflects this -- the anti-HRC ad is demonizing and run too close to the election; NBC doesn't talk enough about the pernicious influence of the military-industrial complex; Fox News is unfairly pursuing a Republican agenda. Your post suggests that these evils call for government regulation

Our government, though, is based upon the idea that power corrupts. Once in power, a person or faction will attempt to use the machinery of government to remain in power. That's why power is divided between different branches of the federal government and why it was supposed to be divided between state and federal governments. Free speech is intended to further limit the corrupting effets of power, by creating a "hands-off" zone for discussions of political and electoral issues.

As such, free speech is better understood as a negative right. "Congress shall make no law . . . abridging the freedom of speech." Free speech means the government cannot punish or limit you from expressing your opinion. There's no comparitive element to it. Your free speech isn't infringed upon when someone else has a bigger audience or easier access to tv.

Moreover, I don't buy that access to the marketplace is as closed off as you make it. An individual's ability today to reach a mass audience is unparalleled in history.

Everything you say can be cut into pieces by noting two fundamental American freedoms - freedom of speech and freedom of association. In reality, you are trying to undermine both of them. I hope you fail.

Does a multi-billion-dollar corporation get billions of times more "free speech" than an individual?

(cough) George Soros (cough)

disigny:

This is a "Core " issue all right, but the problem really is that Corporations are not really "Individuals" at all; that was a legal fiction created in the 19th Century (by the Courts) for the benefit of "Business"; Corporations really shouldn't qualify for "Free Speech" . disigny

The problem with this line of reasoning is that it would mean (and actually does mean, ever since CFR) that the poor and middle classes cannot effectively band together to make their voices heard in the public arena. Soros and Gates can afford to buy commercial airspace to express their views on a national level. I cannot. But what you are essentially proposing is that if I join together with 1,000 likeminded individuals and we pool our resources to buy political commercials, that is somehow less legitimate political speech than when Soros spends $10,000,000 of his personal fortune to influence the outcome of an election.

Thanks for the praise.

I'm more optimistic that we can create a healthier marketplace of ideas. I do not think free speech and a healthy political dialogue in the media age are mutually exclusive. We can have both by applying a little common sense.

Have some faith.

The two biggest issues that have to be addressed are lack of diversity in the broadcast media and the Supreme Court's episodic equation of money with free speech. We can address those.