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Video Killed the Speech Police

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The Bipartisan Campaign Reform Act of 2002 (known as the McCain-Feingold law) was designed to regulate the financing of political campaigns, especially presidential campaigns. Conservatives have viewed the law as an affront to the free speech provision of the 1st Amendment as it prohibits broadcast advertising by many incorporated entities when such ads refer to a candidate for federal election within 60 days of a that election.

Apparently we foolish voters are too easily persuaded by sophisticated corporate or union advertising, so in order to assure a “fair” election such groups need to be silenced for a few weeks beforehand.

The law has failed spectacularly, of course. The 2004 election was dominated on both sides by “527” organizations whose advertising was exempted by the legislation. George Soros and other wealthy individuals on the political left each invested tens of millions in MoveOn.org and other 527s, while conservatives also invested in their own 527 groups such as the Swift Boat Veterans for Truth. The net effect of McCain-Feingold has been only to make the legal practices for campaign financing and advertising more arcane, more difficult to follow, and more difficult to enforce.

One of the fundamental arrogances of McCain-Feingold is that it presumes that the creation and distribution of video political advertising requires large resources, and thus is restricted to large corporate entities and lobbying organizations. The framers of this bill assumed that by regulating the behavior of these organizations, they could control the distribution and public consumption of video political advertising. They also assumed that this advertising was a substantially different form of political speech than the kind you and I might have over coffee on a Saturday morning. In 2007, just 5 years after the bill became law, both these assumptions have become laughable.

This month the 2 most talked-about political ads were both created by anonymous individuals and uploaded to YouTube. They will be seen millions of times in their first month online. These are attack ads (one an attack on Senator Hillary Clinton, the other a retaliation against Senator Barack Obama). Both are mash-ups of Apple’s famous 1984 Super Bowl commercial. These ads would be now illegal to broadcast on television near an election, but they’ll undoubtedly be seen and talked about ad nauseum by TV’s many nodding heads.

As for video being a separate form of political speech, that assumption held true only when video meant the broadcast television market, with its multi-million dollar cost of entry and 7-figure legal expenses for FCC licensing. In the era of YouTube and other video sharing web sites, anyone with a camcorder and a computer (and talent, of course) can produce an ad that could be seen by millions. To obtain that reach the ad needs the approval not of the bureaucrats at the Federal Election Commission, but of the viral market of YouTube reviewers.

How ironic that McCain-Feingold has been thwarted by its original exemptions (demanded by powerful organizations who didn’t want their own political speech restricted) and by improved technology, but not by our democratically elected officials or our courts.

Both our representatives and our courts would keep this monstrous blot on the first amendment in force if they could. Where, when this law was passed, were the advocates of free speech and the libertarians? The law was co-sponsored in the Senate by a Republican Senator from Arizona (Barry Goldwater must have turned over in his grave). The Congress passed the law in 2002, when the House was controlled by Republicans, and it was signed into law by a Republican president whose credentials as a conservative seem limited to his social views. The Supreme Court, perhaps in a nostalgic tribute to Dred Scott, voted 5-4 to find the law constitutional on its first legal challenge.

But the rise of YouTube has shown clearly that video political advertising, like blogging, is fundamentally a form of individual speech, and no Federal Election Commission or court is likely to step in during the height of election season and demand that home-made videos be taken down from YouTube. Despite the best efforts of our increasingly insular elected officials in Washington, the communications of individual citizens today enjoy unprecedented access to wide distribution.

Our Congressmen, Senators, and presidential candidates may chafe at the prospect, but despite their best efforts to silence “irresponsible” critics, their constituents are still able to criticize them freely in writing or on video, even within 60 days of an election.

(UPDATE: One creator has now been identified as Philip de Vellis, an ad-firm worker. See this.)

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About Harry

  • http://thatotherlegalblog.blogspot.com/ Fake Gaylord Perry

    Who gives a shit about the First Amendment? I give a shit! That’s so I can write the warm and fuzzy word, “shit.”

    See you next time on Spitball.

  • http://www.isupportthismessage.com Joem

    Well, they won’t be able to keep political videos from coming. The internet and modern technology is advancing too fast for them. Anyway, even the candidates have started to produce their own campaign videos so they might be able to realize just how important they can be.