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The U.S. Supreme Court’s sweeping ruling on Thursday that invalidated large chunks of campaign finance law arose in part from an unlikely source: the emergence of Facebook, YouTube, and blogs, and the decline of traditional media outlets.
A 5-4 majority concluded that technological changes have chipped away at the justification for a law that allows individuals to create a blog with opinions about a political candidate–but threatens the ACLU, the National Rifle Association, a labor union, or a corporation with felony charges if they do the same.
The now-invalidated law “would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds,” Justice Anthony Kennedy wrote in the majority opinion (PDF). “The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.”
Eugene Volokh, a law professor at UCLA, called it the “first appearance” of the word “blog” in a Supreme Court opinion. And Google’s video-sharing site is singled out in the conclusion, with Kennedy writing that “skits on YouTube.com” that cast politicians in an unflattering light could give rise to “felony” charges if a corporation dared to post them.
Kennedy added: “Rapid changes in technology–and the creative dynamic inherent in the concept of free expression–counsel against upholding a law that restricts political speech in certain media or by certain speakers. Today, 30-second television ads may be the most effective way to convey a political message. Soon, however, it may be that Internet sources, such as blogs and social-networking Web sites, will provide citizens with significant information about political candidates and issues.”
Federal law generally prohibits for-profit and nonprofit corporations and unions from paying to advocate the election of or defeat of a political candidate. The 2002 McCain-Feingold law expanded that prohibition to include so-called electioneering communications, defined as any “broadcast, cable, or satellite communication” that even “refers to” a candidate for federal office and is made within 30 days of a primary or 60 days of a general election.
Thursday’s ruling invalidates many of those requirements, meaning that nonprofit and for-profit corporations and labor unions will be able to spend money on political films, advertisements, YouTube videos, and so on. But the decision comes with two important caveats: first, none of that money will be permitted to go directly to political candidates. Second, an 8-1 majority of the court upheld a disclosure requirement applying to those groups spending money on the political ads or other materials.
The court pointed out that the now-invalidated laws are more sweeping than the term “campaign finance” might imply–and amount to simple censorship. It listed these acts of political speech that previously would have been criminalized: the Sierra Club running an ad (close to the time of an election) disapproving of a congressman who favors logging in national forests; the NRA publishing a book urging a vote against an incumbent U.S. senator who supports a handgun ban; and the American Civil Liberties Union creating a Web site telling the public to vote for a presidential candidate because of that candidate’s defense of free speech.-[source]
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