The Federalist Society

Top Ten Government Efforts to Suppress Free Speech, 1997-1998

Free Speech & Election Law Practice Group Newsletter - Volume 2, Issue 2, Summer 1998

August 1, 1998

Francis J. Menton, Matthew Peterson

We Americans may think we have an inalienable right to free speech: the right to say as we please, to support causes of our own free choice, and to refrain from supporting that which we disagree with. But there is no shortage of those in the govermnent who would like to see that right cut back, and who will not hesitate to use the power of the government to do the cutting.

The authors took nominations for a "top ten" list of federal govermnent efforts to suppress free speech in the past year. Out of a much larger group of nominees, we applied a few criteria for selection and ranking: efforts to suppress core political speech ranked the highest; direct coercive action, such as outlawing disfavored speech, ranked higher than indirect, such as investigations of disfavored speakers; and credits were awarded when the govermnent obtained Supreme Court approval of its coercive actions. We proceed from the lowest ranked to the highest:

10. Electronic Censorship and Surveillance.

For some reason the Clinton administration has shown an insatiable thirst to know everything said in an electronic forum. In one initiative, the administration seeks a requirement that the government get a key to all encryption codes. In another, it seeks to order telecommunications companies to build surveillance systems into their networks so that the government can instantly trace to its source speech coming from cell phones, beepers, and portable computers. The justification: we're just trying to catch crooks.

9. Agricultural Marketing Orders.

Fruit growers who thought they couldn't be forced to pay for advertising they disagreed with learned otherwise when the Supreme Court decided Glickman v. Wileman Brothers in June 1997. It's just economic regulation involving no "political or ideological views" said a 5 to 4 majority, untroubled by having bureaucrats routinely order small growers to pay for advertising benefiting the big co-ops. Justice Souter's dissent, a rare alliance with the conservative wing of Rehnquist, Scalia and Thomas, expressed surprise that the majority perceived no First Amendment issue.

8. IRS Audits of the Administration's Enemies.

FOR was reputed personally to have reviewed the tax returns of his political opponents. In the Clinton administration, critics and opponents just become subjects of IRS audits, sometimes year after year. Although nobody has to admit to an IRS investigation, press reports have identified at least seven conservative organizations as subjects of ongoing IRS audits, including Citizens Against Govermnent Waste, the Western Journalism Center, the National Rifle Association, the Abraham Lincoln Opportunity Foundation, and the Freedom Alliance. The prominent Heritage Foundation recently revealed its second major IRS audit in as many years. Then there are the audits of Billy Dale (of White House Travel Office fame) and Paula Jones. Coincidence?

7. FDA Suppression of Medical Advances.

With medical innovation running circles around the plodding FDA, the bureaucrats must fight to keep control. After drug approval, manufacturers regularly learn of new life-saving uses for their products. According to the FDA, manufacturers must not tell doctors of the new uses -- until the FDA gives the OK.

FDA "guidance" documents threaten enforcement action if manufacturers dare to tell doctors how to save lives. (FDA enforcement powers include the ability to seize a manufacturer's entire inventory.) "Warning Letters" threaten immediate action if unauthorized speech continues. A 1994 lawsuit by the Washington Legal Foundation challenging the FDA's policies has been stalled for four years by procedural defenses even as the "Warning Letters" continue to go out. What do a few lives matter when bureaucratic control is at stake? As of June 1998, years of struggle have finally drawn a response from the FDA. Newly proposed regulations would give manufacturers the right to circulate peer-reviewed articles from scientific or medical journals -- but only if submitted to the FDA 60 days prior to dissemination, and only if accompanied by whatever additional information the FDA requires. Progress?

(Editor's note: a federal district judge recently found this regulation violated the First Amendment.)

6. The Tobacco Bill.

The government's massive effort to seize control over all commercial speech in a $50 billion market comes relatively low in the rankings because (1) it has been defeated, at least for the moment, and (2) the tobacco companies' give-up of First Amendment rights began as a "voluntary" trade for protection against crippling litigation costs. For the present, the tobacco companies appear to have learned a bit about trying to do that kind of deal with the government.

5. Liquor Advertising.

Even as critics of the tobacco bill asked whether something like liquor could be next, few noticed that the Clinton administration's campaign against liquor advertising had already begun. In a speech in April 1997, President Clinton called on the FCC to commence an investigation of liquor advertising, saying it is time to "move urgently to save parents, young people, and our nation from the unavoidable bad consequences of liquor advertising on television." The President did not suggest the need for legislation, let alone a Constitutional Amendment.

4. SEC Regulation of Proxy Fights.

Anyone wondering what political elections might look like if the pesky Supreme Court didn't get in the bureaucrats' way need look no further than the next closest thing - elections for corporate control. Under Section 14 of the Securities Exchange Act and the SEC's proxy contest rules, all advocacy material sent to shareholders must go to the SEC staff for pre-clearance. In a spectacle breathtaking in its arrogance to those who thought there was a First Amendment, the commission staff marks your material up, rewording the best lines to mush and crossing out all the zingers. Investors' tender eyes must not be stung by unapproved puffery! With the battery of penalties available to punish the non-groveling (each "false" statement a felony) and a two-week period to win or lose, no one mounts an effective court challenge.

3. Use of Union Dues For Political Spending.

Workers in twenty-four states by law must join unions, or at least pay full union dues, to keep their jobs. Unions then spend the money in political campaigns - 95% to Democrats, even though surveys show union membership to be over 40% Republican. Ten years ago in the Beck case, the Supreme Court held that workers could not be forced to pay that part of dues that goes for activities outside the unions' core collective-bargaining role. But, with remarkably small exceptions, efforts of workers to enforce their Beck rights have had limited application or remain tied up in litigation. Only on May 26, 1998 did the Supreme Court finally rule that unions could not force Beck disputes into union-dominated arbitration. Dissenting workers cannot expect any help from the Clinton administration, which makes no secret of its refusal to take any enforcement action under the Beck decision. Cynics think that massive union political spending-estimates range from $35 million to over one billion dollars for the last election cycle -might have something to do with the refusal.

2. FEC Efforts To Define "Co-ordination."

Since the Supreme Court decided Buckley v. Valeo in 1976 and upheld Congress' right to limit contributions to "political campaigns," Washington metaphysicians have sought to discern what political spending is "co-ordinated" with a campaign and what is not. Very simple, declared the predictable functionaries at the Federal Election Commission in a regulation: all political party spending at the time of a general election is inherently co-ordinated and subject to limits. That regulation lasted until the Supreme Court threw it out in the 1996 Colorado Republican decision. Needless to say, the FEC will not so easily cede its perquisites to the forces of freedom. Even as the Colorado Republican case meanders through remand proceedings in the District Court (exactly who said what to whom about these expenditures?) the FEC labors at new definitions of "co-ordination" thought capable of surviving Supreme Court scrutiny. The proposed regulations are most notable for their complexity, meaning the FEC gets complete discretion to decide who did wrong; you find out whether you've violated the regulations when the fine is assessed.

1. "Campaign Finance Reform."

The number one spot goes to this most unabashed of efforts to crush core political speech, especially the kind by nouveau riche outsiders who just don't understand how Washington works. The House has given over much of its summer schedule to debate the various bills. Le tout Washington and its media accolytes know in their hearts that there is "too much money" in politics --excepting, of course, the kind of money that prints the New York Times. Congressional re-election rates of only 98% are just too frightening! Dare anyone utter the words "First Amendment" in this debate? The open question: assuming that some form of "soft money" contribution limits becomes law, how many votes will that law win in the Supreme Court?

*Francis J. Menton, Jr. and Matthew Peterson are attorneys for the New York law firm of Willkie, Farr & Gallgher.


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