If the public owns that tree, do they not get to decide what sort of posters they’ll allow on it?
But, no matter how good you intentions are, if you pass the law that we are discussing, you are “preventing” the speech of people who would have otherwise had it.
For your analogy to make sense, this would have to be a naturally occuring phenomenon. If you propose a new rule that forces all posters to have a 10 post limit per day to even the playing field, then are you not limiting the speech of posters? Even if your goal is to make things fair and even and have more “free” speech, you must admit that what you are suggesting is blocking speech.
It comes down to this: Blocking political speech is in violation of the first ammendment to the constitution. Even, IMO, if you are blocking speech in the hopes of creating more or fairer speech.
Debaser’s point is the same that mine has been all along, and I think it bears repeating. There may in fact be good reasons to limit political ads on TV. However, there is no way to do this without changing our First Amendment, and that isn’t going to happen.
I argue that limits on political ads do not abridge free speech, since their content does not change at all under the proposed restrictions (merely their “volume”), and that this guarantees the freedom of the press against the threat of plutocracy. To characterise this as “wanting to block a political message that a group is trying to get out” is asinine.
We all agree that political ads are speech, right? And you want to “put limits” on them? (The OP actually says “ban” them.) If political ads are speech, isn’t that limiting, or banning speech? Even if it’s in furtherance of your goal of creating more speech, this is still the case.
Right, just as shouting “fire” is speech. Laws limiting either political ads or shouting “fire” are not abridging freedom of speech except in the most literal and picayune sense: we might just as well interpret “the right to bear arms” as accessibility to ursine forelimbs.
I have no dog in this, remember - I care little whether the US becomes an outright plutocracy or not. But John Stuart Mill certainly recognised the dangers of plutocracy, and would recognise reasonable steps to prevent it as anything but “abridging free speech”.
No. They are not the same. No reasonable person would continue to argue that they are the same.
I argue not that they are “the same”, I argue that they both constitute “speech” in a literal sense of the word, and that laws placing limits on them are “limiting speech” in a literal sense.
I argue that neither is abridging free speech. For good measure, I’ll chuck in that no reasonable person would argue otherwise, also.
Can you give me an example of something that would abridge free speech?
Political advertisements are certainly free speech. You are suggesting banning or limiting them. That’s abdridging free speech. Political advertisements are the most effective way for groups or individuals to get a political message out to a lot of people. They basically define what “free speech” is. I can hardly even think of a better example of free speech.
That you deny this is baffling. You should go back to the argument that they do abridge free speech, but only so that things will be more fair and we won’t become plutocracy. I still disagree with this, but at least it’s intellectually honest and logical.
Not speech, Debaser. Commerce. I repeat: The First Amendment does not guarantee anyone the right to buy or to sell advertising space or advertising time, whether commercial or political. In our constitutional system, both the federal and state governments have always had a recognized, legitimate authority to regulate commerce of any kind. If they wanted to, they could outlaw the entire advertising industry, and without violating the First Amendment.
Well, this is certainly an in interesting take on the first ammendment.
Isn’t all media commerce, though? Since they are businesses and subject to government regulation does this mean that you think they don’t get first ammendment protections also?
Lets say a tyrannical government comes to power in the US. They want to ban all speech that is critical of the government. Wouldn’t they be able to ban such speech on all radio, television, and print forms? After all, these are all businesses that are subject to commerce.
You could be arrested for having a flyer printed that is critical of the government, since print shops are regulated businesses. If you posted critical thoughts on the SDMB you could be arrested, since it is a business that charges for membership. You couldn’t have any speech critical of the government over regulated phone lines of course, since that is a business that is regulated by government.
You sure you don’t want to re-think this? I would not want to live in a country where the governments right to regulate any commerce trumps first ammendment rights.
Here’s how it actually works: The government is free to regulate commerce, as long as they don’t violate the first ammendment doing it!
Debaser, I’m now wondering whether these guys are simply yanking your and my respective chains. I can see that someone in Europe might not realize that the First Amendment reigns supreme on issues of political speech, but commerce? As if the federal government could use its power to regulate interstate commerce as a way of suppressing specific rights guaranteed in the Constitution? I can just see the Bush administration, making the FTC close down any electronic or print media that publishes anything critical of it, and using the commerce clause as justification. Boy, wouldn’t that light up the GD forum.
OK, I did some quick legal research. It is probably not true, as I asserted above, that Congress or the state legislatures could outlaw the advertising industry entirely. However, it is well established law that the advertising industry is subject to regulation, as an industry; and also that advertising itself is subject to regulation, both as to form and as to content. From Fla.Jur.2d (Florida Jurisprudence – 2nd), volume 2, Advertising, Section 2:
Note that such regulation must pass only a “reasonable balance” test, not a “strict scrutiny test.”
With regard to political advertising in particular – from Fla.Jur.2d, Volume 21, Elections, Section 88:
And from Section 176:
All of the above law has stood up to court challenges. Now, if you, Debaser, think you know more than the courts do about the First Amendment, feel free to make your argument – but it would have to pretty well grounded in established constitutional law to be persuasive.
The point I’m making is that the idea proposed in the OP – banning all paid political advertising on television (and only on television) – would not be different in kind from what the state already has established authority to do with regards to campaign advertising; the more so as television has never been held to enjoy the same degree of First Amendment freedom the print media enjoy.
No, it isn’t. There are noncommercial media, as you know.
Limiting political ads because of their content.
Any speech is “free” speech in an ultra-literal sense. Any limits on speech “abridge free speech” in an ultra-literal sense. We must ask what a reasonable defintion of “free speech” is with regards to what your constitution attempts to protect.
Perhaps the best way for the US to approach this would be for a member of Congress to propose limits simlar to other democracies and let the Supreme Court judge whether it “abridged free speech” according to what the (IMO hopelessly outdated) US Constitution meant by the term. I consider that a strong argument can be made that such restrictions do not violate the First Amendment. (I must leave BG to make that case here since I am utterly ignorant of the relevant US precedents.)
Regulation of political ads would be judged under strict scrutiny, not under reasonable basis. Under our current constitutional scheme, political ads are political speech, not commercial speech, so you don’t get the easier test.
Limiting political ads on the basis that they are political is content-based regulation.
Cite? You’re making a legal argument, so can you cite a legal authority for that theory?
So, limiting them would be in violation of the first ammendment, but outright banning them isn’t? You contradict yourself. You keep insisting that political ads aren’t “free speech”. If this is the case then limiting them on content could not be in violation of the first ammendment.
I think we are at an impasse here.
You continually come back to this literal and non literal definition of speech. I simply have no idea what you are talking about anymore. As I have already stated, political advertisements are certainly “free speech”. They are as perfect an example of free speech that one can come up with in our society today. That you continually insist that they are not free speech except in some hyper-literal sense just doesn’t hold water. I’ve asked you to give examples of what would constitute free speech and don’t get a response.
It’s good too see you come right out and say it. You think the US Constittution is outdated. It’s clear from your posts that you believe we should simply go forward with whatever policies we think are best and ignore the constitution. This is a dangerous attitude. The constitutional protections American’s enjoy are only important if we act like they are. If we start ignoring them every time we think we can, then they will soon have no meaning at all and the protections we take for granted might not be there some day.
No, I don’t. I keep insisting that regulating how political ads are paid for is not “abridging free speech”. I don’t know how else I can express myself.
I believe a strong case can be made that limiting political commercial advertising does not ignore the constitution. Again, I don’t know how else to say so.
I’ll take you at your word that there are already limits on speech that have been deemed to be constitutional. I won’t argue with you on legal specifics, because I’m not a lawyer. However, to be honest, I don’t really care about specific legal precedents that much. The law is subject to the whims of whomever is making it. The MA supreme court recently decided that the equal protection laws in the constitution gives gays the right to marry. Only three of the five justices agreed wtih this ruling, that is a brand new legal concept. The SCOTUS somehow interpreted the US Constitution to say something about abortion, which it clearly does not. If enough hard right wingers get appointed, then this decision will likely be overturned.
All of these people - Massachusetts Supreme Court justices, and SCOTUS justices, are very smart and know a lot more about the law than either of us. Yet they disagree all the time. They disagree about very basic stuff, too. It’s not finer points, it’s very core issues that they see different ways on.
I don’t care what the legal precedents are. If some court makes a bad decision, that doesn’t make it right.
When the founders wrote the first ammendment they were clearly talking about political speech. They weren’t worried about Janet Jacksons breast, they were worried about a tyrannical government that would prevent the people from bitching about politics. Any attempt to ban, or limit, or control political speech is in violation of the 1st.
Examples?
(I’m not being a wise-ass, I’d like to know along what lines you are thinking, here.)
I’m not going to make a cite, because I don’t have the time or the inclination, but I know for sure that if you look at First Amendment jurisprudence – start with Buckley v. Valeo (okay, what the heck, there’s a cite; I lied) – you’re going to find that all political speech, whether its paid television advertisements or otherwise is going to get the highest level of protection under the First Amendment. Thus, strict scrutiny. Buckley itself sets forth the standard of “compelling state interest” and “least restrictive means,” which is the strict scrutiny test. Furthermore, it says that “suppressing communication” cannot be the state interest implicated.
Take a look at these passages from Buckley –