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Why is political speech a different category than other forms of speech?

Think of the plausible scenario of a certain Presidents FEC deciding friendly speech isn’t “political” (it’s “patriotic”!) But critical speech is clearly political and should be regulated.

3 comments

Thanks. Your above says advertisement, you said speech. Thats a big difference. Advertisement can be regulated which is the focus of this thread. No one is saying to regulate some speech in a rally but is said speech is reshape as some advertisment then they should be regulated.

For the purposes of American law, "speech" is defined very broadly. It can apply to burning an American flag[0], plans for 3-D printed guns[1], and even bombmaking instructions[2].

Our Supreme Court has decided that corporations spending money[3], even in politics[4], is speech as well.

The O'Brien test[5] is generally used to tell whether a law encroaches on 1A rights.

[0]: https://en.wikipedia.org/wiki/Texas_v._Johnson [1]: http://joshblackman.com/blog/2018/07/10/doj-second-amendment... [2]: http://www.cs.cmu.edu/~dst/raisethefist/archive/abi.htm [3]: https://www.freedomforuminstitute.org/first-amendment-center... [4]: http://www.scotusblog.com/case-files/cases/citizens-united-v... [5]: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/obrient...

You need even more money to organize rallies, get anyone to report on them and to get any airtime for yourself. Advertising is much cheaper and easier way to get people to look at your ideas.

Banning political advertising is just a play to strengthen incumbents and hurt new comers. I also think it's morally wrong. It's "you should not try to influence others by yourself - only government approved channels are ok and maybe you will get a minute a day if you're already visible in the polls" kind of law. It's censorship reminding me of Soviet days. Europe is terrible when it comes to freedom of expression. Blasphemy laws are another example of prosecuting speech some groups don't like.

That doesn’t change the fundamental problem. Regulating advertising for political content is a slippery slope that lets some people decide what is “political” and what is not.

This is orthogonal to my point. I'm just surprised (disappointed?) at how some people think it's so inconceivable to communicate without advertisements.

It's politics. How do you convince millions of people to look at your ideas and yourself without ads? You need to be a billionaire to organize rallies in major cities and that will still be less effective than ads. You're only getting airtime if you're an incumbent or already popular. Internet made it possible to get attention of millions of people relatively cheaply. No wonder it's in the interest of ruling elite to ban doing that.

Why is insider trading a different category than other forms of speech?

Why is paying someone to murder someone a different category than other forms of speech?

Why are intentionally deceptive drug advertisements a different category than other forms of speech?

Why is pointing a gun at someone and telling them to do something a different category than other types of speech?

I'm going to claim that it's because these forms of speech enable types of coordination and coercion that corrupt processes and structures that we deem essential for the operation of society. So, pragmatic reasons.

Placing limits on the payments, direct or indirect (a dollar I spend is a dollar a candidate doesn't have to spend), that can be made to aid people in gaining a position that places them in charge of allocating public resources, that's something that very few people seriously argue against. What they argue about is what those limits should be.

You can make an argument that payments to candidates and government officials should be allowed, but making absolutist arguments that something is speech and therefore must be permitted isn't serious. Payments to a television station to run an ad that you financed the production of is surely less worthy of being called speech than calling in a bomb threat is - at least the bomb threat is using your mouth to say a thing. Speech, instead, is what we define to be speech. If it's to encompass all expression, you might as well call selling cigarettes without a tax stamp speech.

> Why is insider trading a different category than other forms of speech?

The speech isn't illegal - the act of trading based on insider information is. This works in a similar manner to bomb-making plans being legal to disseminate, but making a bomb being very illegal.

> Why is paying someone to murder someone a different category than other forms of speech?

This is solicitation to commit a crime, which is a specific exception to the 1A.

> Why are intentionally deceptive drug advertisements a different category than other forms of speech?

This is a false statement of fact, which is a specific exception to the 1A.

> Why is pointing a gun at someone and telling them to do something a different category than other types of speech?

Pointing a gun isn't speech, it's coercion.

> The speech isn't illegal - the act of trading based on insider information is.

The act of paying for something. That's not a very helpful distinction to make when the proposal is not being able to pay for certain ads.

> This is a false statement of fact, which is a specific exception to the 1A.

Political ads are deceptive all the time.

And what does "specific exception" mean? Specified by what?

Herewith the First Amendment of the U.S. Constitution, wherein one will find no specific exceptions actually made.

* https://www.archives.gov/founding-docs/bill-of-rights-transc...

Enjoy.

That's not how this works. The constitution and amendments are the foundation. There are centuries of supreme court rulings and further legal precedent that determine the modern framework.

Free speech does have certain restrictions, which you can easily read about here: https://en.wikipedia.org/wiki/United_States_free_speech_exce...

Actually, it is how it works. You are confusing case law with what k_sh actually claimed, which was specific exceptions. There do exist U.S. constitutional provisions with specific exceptions, such as the 5th Amendment. The 1st Amendment is not one of them. Indeed, it is famous for being neither specific nor having clear exceptions.

Contrast with the Basic Law of Germany article 5, that has already come up in this discussion, which outlines specific exceptions in paragraph 2. (For another example, see article 8.)

Incorrect. What is being discussed are the applicable rules to citizens today, and the cumulative legislation states that there are exceptions. We do not follow only the constitution and bill of rights, otherwise what do you think the thousands of other laws are doing exactly?

Real exceptions exist, regardless of whether they are written in the original amendment text or in rulings afterward.

The exceptions are 'real', but they're fuzzy, they change over time, and they're not in the constitution itself. They're the opposite of 'specific'.