Posted by Eugene Volokh:
Nothing New Under the Sun:
http://volokh.com/archives/archive_2008_05_04-2008_05_10.shtml#1210026764
Charles E. Pierce was prosecuted for violating section 12.05 of the
Wisconsin Corrupt Practices Act, which bars spending aimed at
"influenc[ing], directly or indirectly, voting at any election or
primary," except (1) by a candidate or a candidate's campaign
committee, (2) by a party committee, or (3) by people "residing with
the county where such expenses are incurred" who are spending the
money "for rent of hall or other rooms, for hiring speakers, for
printing, for postage, for telegraphing or telephoning, for
advertising, for distributing printed matter, for clerical assistance
and for hotel and traveling expenses." (There was also an exception
for speakers' paying their own traveling expenses.) The Wisconsin
Supreme Court struck this down as a violation of the freedom of
speech.
The interesting thing is that this happened in 1916, in State v.
Pierce, 158 N.W. 696 -- and the arguments about this sort of speech
restriction were in many ways quite similar to what we hear today.
Here are some excerpts, first from Chief Justice Winslow's majority
opinion:
Freedom of speech and freedom of the press have always been
supposed to be the very corner stones of Anglo-Saxon democratic
institutions.... The Constitution of Wisconsin declares (section 3,
art. 1): �Every person may freely speak, write and publish his
sentiments on all subjects, being responsible for the abuse of that
right, and no laws shall be passed to restrain or abridge the
liberty of speech or of the press� [and Section 12.05 violates this
provision] ....
Under [the] terms [of section 12.05] a man, or body of men, who are
honestly convinced of the necessity of a change of policy in the
state government, commit a crime if they spend any money in another
county than their own in bringing their views to the notice of the
voters of such other county. There is really but one exception to
this, and that is that a public speaker may pay his traveling
expenses in going to and from his own meetings, but even he may not
hire a hall in which to make his speech. If this be not an
abridgment of freedom of speech, it would be difficult to imagine
what would be.
Under such a law no pioneer in any reform which depends for its
success on a change in the law could leave his own county and
communicate his sentiments at his own expense to his fellow
citizens of other counties without committing a crime. Under such
laws no great propaganda for better laws and better political
conditions which has not been formally taken up by a political
party can ever be carried on, and the reformer whose eye kindles
with the dawning light of a better day must be content to confine
his personal activities to the inhabitants of his own small
bailiwick.
Almost every forward step in political and governmental affairs
comes as the result of long agitation and discussion in the press,
on the rostrum, and in the open forum of personal contact. This
agitation and discussion often goes on for years before the idea is
formally indorsed by any party. Yet it will generally be the case
that during this period there will be individual candidates in one
party or the other, or both, who favor the new thought. Now this
law means that in such a situation no man, or group of men, can do
a stroke of political work involving expense in any other county
than their own, however legitimate and praiseworthy be the means
which are used. No political committee will take up the work, for
the very good reason that the party organization has not indorsed
the doctrine.
There are times also when devoted citizens firmly believe that no
organized political party stands for the right or deserves support,
and that an independent candidacy is necessary. Can it be that
under such circumstances these citizens can be wholly deprived of
the right to go to any part of the state at their own expense,
collect information on the subject, and endeavor by word of mouth
or by the distribution of printed matter to put the issue as they
see it before such fellow voters who are not residents of their own
county? ...
We are by no means unmindful of the high and admirable purposes
which inspired the authors of the Corrupt Practices Act. There is
no member of this bench who is not in the fullest sympathy with any
legislation which will tend to reduce to an absolute minimum the
danger of corruption and coercion during political campaigns, but
when such a law goes beyond regulation, and absolutely prohibits
that which the Constitution expressly protects, the court can do
nothing but say so....
Now here's Justice Siebecker's dissent, joined by Justice Kerwin:
The terms of section 12.05 are not, in my opinion, an invalid
restraint or abridgment of these rights [to speak and publish] in
the light of an urgent necessity to regulate the mischievous
expenditures of money in elections. It is important to observe that
the statute does not regulate the expenditures of money by persons
in their political activities, or in promulgating their sentiments
and convictions on any subject or any policy of government
disassociated from and independent of any activity of influencing
voters in an election, and also that no person is precluded from
participating as a speaker in political campaigning in elections
and speaking his sentiments freely, except that when a person so
participates as a speaker in an election campaign to influence
voters ... [he must] carry on his work at the expense of a party
committee, a personal campaign committee, or a local county agency
....
The act also permits the widest freedom to all persons and groups
of persons to promote and agitate for any cause by the press, and
print through the mails at the place of their residence, and thence
throughout the state. This shows that the freedom of speech and
press is wholly unaffected by the provisions of this act, and is as
unconfined as ever as to all matters other than campaigning for
votes in an election, and in such campaigns all persons have the
unrestricted liberty to speak throughout the state as they please
and employ the mails of their counties, and thence throughout the
state to publish their sentiments and expound their doctrines,
policies, and reforms concerning any cause. [Note the echo of the
modern "media exception." -EV] A very broad and unrestricted field
for activity is thus available to every publicist, speaker,
reformer, or any body of men honestly concerned with the necessity
of bringing their views to the notice of votters of the state....
Reasonable regulations to guard the ballot are necessary to prevent
unbridled license in the exercise of these fundamental rights [of
speech and press] in order to maintain a government of laws....
[C]orrupt practices acts are enacted to remedy these evils, and the
right of free speech and press does not imply that its
inviolability is such that it can do no wrong. Indulgence of it is
always conditioned on the proposition that its exercise does not
subvert the government, and �is limited, but not abridged, by laws
passed in the exercise of police power for the protection of the
moral health of the community.�
The legislative provisions of section 12.05 are directed at the
evils in elections, and seek to correct them by limiting
contributions and expenditures of money, and by requiring all
persons engaged in political campaigning to carry on their
activities through the prescribed agencies of committees and local
groups. To accomplish these purposes the Legislature found it
necessary and expedient to subject the citizen to these methods of
campaigning, which in some measure operate to confine the rights of
the freedom of speech and press in elections to the prescribed
manner of exercising them.
[The free speech/free press clause of the state constitution], in
common with all other provisions, is subordinate to the great
leading purpose for which constitutional governments have been
established, namely, to form a more perfect government and to
promote the general welfare, and, like all fundamental rights,
requires regulation to prevent these rights from being abused,
which is the law of liberty. This doctrine is forcibly and clearly
expressed in the words: �Power to determine such questions so as to
bind all must exist somewhere, else society will be at the mercy of
the few, who, regarding only their own appetites or passions, may
be willing to imperil the peace and security of many, provided only
they are permitted to do as they please. Under our system that
power is lodged with the legislative branch of the government. It
belongs to that department to exert what are known as the police
powers of the state and to determine primarily what measures are
appropriate or needful for the protection of the public morals, the
public health, or the public safety.�
Where the abuse of the purity of elections begins, through whatever
means it be accomplished, liberty of speech and press must end, for
without such a check this right could be made a most effective
instrument of mischief. The Corrupt Practices Act was framed to
guard against such mischiefs, and the Legislature found its
provisions appropriate and necessary to check existing evils, which
threatened to subvert the rights and privileges, of the elective
franchise. In the light of the public evils and the pernicious
influence on voters in elections which flow from the lavish
expenditure of money, there is much justice and sound public policy
in the legislative restrictions imposed on persons by the Corrupt
Practices Act.
No doubt exertion of the legislative power in this regard has its
difficulties and embarrassments in order to preserve and protect
the elective franchise from abuse and the rights guaranteed by
liberty of speech and press.... [But the law is] within the
discretion which obviously animated the legislators in their
vigilance to correct existing mischiefs that threaten to subvert
the purity of elections, and ... its provisions do not operate to
unreasonably restrain or abridge the liberty of speech and press in
the light of eradicating the evils that have grown up in the
political field from lavish expenditures of money which menace the
freedom and purity of the ballot....
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