Common Sense in Free Speech

If we look at the entirety of the just-completed election, one thing seems clear: a record number of Americans are fed up with “politics as usual” and we don’t need to dig deeply to find proof. Polls show this but, even more compelling, we see that the greatest total enthusiasm, prior to November 8th, was generated for Donald Trump and Bernie Sanders, two men whose political views are almost polar opposites. The one thing they share is the message that business as usual is no longer acceptable.

In exit poll interviews, many voters indicated that Trump’s personality and comments were offensive, but their desire for change outweighed that. And how many times did we hear that there was a sense of “choosing the lesser evil” in the presidential vote? Personally, I don’t find Hillary Clinton evil at all, but I sense that a lot of people associated her so strongly with the Washington status quo that they were willing to believe even the most outlandish statements made about her.

So, where do we go now?

I see that there are three steps that can be taken. The first two are the most important; if we were to adopt just one of them, it would be an improvement. The steps are:

  1. Follow the example of the United Kingdom, and limit the amount of time campaigns are allowed to go.
  2. Overturn SCOTUS rulings that have broadened “free speech” far beyond the intent of those who wrote the Bill of Rights.
  3. Overturn the SCOTUS ruling that define corporations as being people.

Today, I will write about the first two. If they were both enacted, #3 would become a moot point.

OVERVIEW: in reading the Federalist Papers and other primary sources, it is clear that the framers’ intent for free speech was to protect political dissent. OK, but SCOTUS has taken that so much to heart that it has failed to keep that freedom in the context it was intended. We can safely conclude that free speech was to be protected if it had a purpose in advancing the political dialog; it was never intended to protect ad hominem attacks nor to encourage mindless babble (see Federalist #10-19  and the letters written by James Madison, Alexander Hamilton, and Thomas Jefferson. (Considering the antagonism between Hamilton and Jefferson, their concurrence on this issue is especially notable.)

Regarding the first issue, we have plenty of evidence that we can limit political campaigning. There are already limits in place that have all withstood judicial scrutiny. We can surmise that the framers never thought to impose time limits because the spread of information was so slow in 1791, but we all know that communication speed is no longer an issue. The United Kingdom limits campaigns to 30 days. Given the physical and population size of the United States, that limit should probably be between 60 and 90 days.

There are a lot of advantages to this, but two leap to mind as most important. One, a limit on campaign time would limit the amount of money that is poured into elections, money that so desperately could be used for better purposes and that leaves the 99.8% of Americans who are not wealthy feeling disenfranchised and angry. Why? Because it would be senseless to pour money into a campaign if the candidates and parties wouldn’t have time to spend all of it; without any other legislation, this would make the playing field more level. Two, it would tend to force candidates to concentrate on issues instead of insults, because they otherwise would not be able to give the people adequate reasons to vote for them. It wouldn’t eliminate negative campaigning, but it would reduce it.

Regarding the second issue, starting in 1952 (Wieman v Updegraff), SCOTUS cited the “chilling effect” that libel suits would have when brought against political candidates. Rightfully so, they feared that lawsuits based on alleged defamation of character would go cripple the framers’ intent for there to be open political discourse. If this were still the early 1950’s, I would be inclined to agree; but, let’s look at what has changed in the past 64 years:

  1. News agencies are no longer run without regard for profit; that wall began to crumble in the late 1950’s.
  2. Journalists no longer adhere to the understood code of ethics that demanded that news stories have two independent confirmations before being published or broadcast.
  3. Social media’s dark side is that it allows for unsubstantiated rumors to be circulated almost instantly, and very few Americans take the time to examine the validity of the sources.
  4. “Legitimate” news sources are now owned by a select number of corporations, instead of being independently owned.

If you combine all of these, the net effect is that we have broadcasters competing to get rumors onto the airwaves as fast as possible, knowing that they have to get good ratings and that they don’t want to be usurped by the Matt Drudges of the world. We also have a general public that tend to read things on social media and assume they are true because they think of those words as published when, in truth, they are only words typed out by anybody. For example, who the hell is Publius17? Is he a learned expert in political science, or some crank, sitting on the corner barstool, chugging beer?

Given all of this, the prohibition on legal action for defamation, simply because the defendant is running for office, is an outdated concept. Comparable republics have allowed defamation lawsuits (most of the EU, for instance) and have seen no chilling effect on political discourse.

Taken together, these two items would create campaigns that were more on point and would avoid the mudslinging. That alone would result in a massive improvement to our current election system.


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