Free expression is a pain in the posterior to endure. It is human nature that, if so empowered, we would seek to oppress and suppress the destructive expressions of our mindless, nonsensical critics.
I made this very point once in a speech at an annual banquet of the Arkansas chapter of the American Civil Liberties Union. To illustrate, I cited a noted right-wing columnist then popular in the state, now departed.
I said that, should I be anointed king of Arkansas, my first instinct would be to tell this rascal he couldn't write any more columns. I could not immediately relate my next comment — which was that, of course, I couldn't and wouldn't actually do that — because of the cheering over this prospect of silencing from these supposed libertarians. They weren't behaving as libertarians. They were behaving as liberals, partisan Democrats and wannabe oppressors.
John Adams, great founding father, capitalized on fear of war with France and got imposed in 1798 a Sedition Act whereby people who wrote things he and the controlling party didn't like could be declared lawbreaking traitors to the country. It was soon repealed, thank goodness.
Then, much more recently, there is the case of U.S. Sen. Harry Reid of Nevada. Badgered by incessant right-wing attacks on the editorial and op-ed pages of his state's biggest newspaper, he got caught last week telling an employee of that paper that he hoped the paper went out of business.
That brings me to “Hillary: The Movie,” a documentary that amounted to a blatant partisan attack from conservatives on Hillary Clinton in an effort to keep her from ever becoming president. We're now confronted by a rare development, an order by the U. S. Supreme Court that it will hold a second hearing on an issue by returning early from vacation Sept. 9.
The question is whether corporate spending to distribute this movie to the population at large amounted to electioneering in behalf of, or in opposition to, a candidate for political office, and whether that spending was thus illegal for corporations under the McCain-Feingold campaign finance reform law. This is not about whether someone can make a political documentary attacking a candidate. That's clearly a matter of protected free expression. It's about whether corporations can pay to make such a wholly political attack readily available to the masses by promoting and distributing it.
That's where the Federal Election Commission, citing McCain-Feingold, drew the line against this film. Corporate money sought to get it placed on home on-demand video systems and to advertise its ready accessibility. Still, this is a quite large issue. In the first hearing, the debate was framed by these jarring extremes:
• McCain-Feingold might be declared unconstitutional altogether on the theory that, if it was an unconstitutional restriction on free speech for corporate money to be disallowed in the distribution of this little documentary attacking Hillary for electioneering purposes, then so should it be unconstitutional to bar corporations from directly buying political attack ads on television. Such a ban is expressly enforced by McCain-Feingold. Undoing McCain-Feingold's impairment of corporate money that way scares the daylights out of Democrats.
• Or, if distribution of this little movie could effectively be restricted as corporate political electioneering, might we also need to ban books — ban books! — that were fully paid for by corporate money and amounted to attacks on active political candidates for the purpose of defeating those political candidates? When Justice Samuel Alito raised the book-banning prospect in the first hearing in March and got a government lawyer to acknowledge that, yes, under certain circumstances, a book could be banned by McCain-Feingold, a murmur was heard throughout the hallowed chamber. Banning books is not where you want to be in a political debate.
This is a case that has usual alliances mangled. The ACLU defends the Hillary movie's corporate distribution. Partisan liberals endorsed the stifling of the film That's because the common denominator on free expression is never partisanship, but the human nature to oppress and suppress. Any erring ought to be on the side of liberty. Our abiding faith ought to be that, no matter what is said and no matter by whom, reason and truth can prevail.
It comes down to this: Confronted by free and false political speech, we should vigorously contest it, not ban it.