Is Politics the Next Venue for a Speech Code?

Is America in the early stages of developing a political speech code, similar to those now found on hundreds of college campuses across the country? These speech codes, often imposed in violation of basic free speech rights by state universities, obstensibly aimed at preventing harassment, in reality serve to contain speech that is subjectively offensive to one person or a favored group, making the free exchange of ideas difficult, if not disasterous, for those whose speech runs counter to the accepted “norm” of the college campus.

In his 1991 book on the changing campus environment, Illiberal Education: The Politics of Race and Sex on Campus, Dinesh D'Souza noted:

Universities are a microcosm of society. But they are more than a reflection or mirror; they are a leading indicator...Of all American institutions, perhaps only the military brings people of such different backgrounds into more intimate contact.

From the early 1980's onward, the cultural outlook on college campus swung decidedly to the left. In order to advance what D'Souza called the victim's revolution, speech codes became increasingly common as a means of controlling debate and dissenting (read not favored or politically conservative) views. The venues and content of speech were sanitized, dissenting views regulated, if not de facto banned, and thus was born a new world on campus, one in which any speech viewed subjectively as offensive was verboten. In other words, campus speech codes served as the progenitor of the political speech code now at hand.

Last week, a transcript of a Washington state case dealing with political ads became the subject of a little internet reporting, here and here.

One of the most interesting lines from the decision is this little gem from Judge Richard A. Jones:

Under any notion of rational interpretation the suggestion that an elected official engaged in a "cover up" is an assertion that clearly and unambiguously suggests the official engaged in an act of deceit, deception, fraud or concealment...The notion that this advertisement was desigened to discuss the issues and noted a personal attack on the character strains credulity. Any listener knowing of the citizen's candidacy for attorney general would have only one reasonable interpretation: that is, that the ad was an exhortation to vote against [candidate Deborah] Senn.(emphasis added)

The ad in question was one of a pair that attacked Washington State Attorney General candidate Deborah Senn. The inclusion of the line accusing Senn of a cover-up distinguished this ad from the other, more general issue ad.

Aside from the attack on Senn's character, this would have been a case of no import, but by interpreting an attack on a candidate's character as a type of campaign activity designed to pursuade the voter about a person rather than about an issue, the court said that the ad with the personal attack was subject to regulation by the state.

Admittedly, I am unfamiliar with the Washington State precendent cited in the ruling, but it seems to me we are looking a a different realm of political speech regulation than had been previously contemplated in earlier times.

With the passage of BCRA, the regulation of more types of campaign ads, and the growing calls for more regulation of the media of political speech (namely anonymous blogs), we as a nation head toward a world in which political speech is to be the next victim of a speech code.

Consider for a moment that under the old, pre-BCRA Federal Election Campaign Act as interpreted in Buckley vs. Valeo, in order for speech to be regulated political speech, the advertisement in question had to contan the so-called magic words, such as "elect, vote for, vote against," a particular named candidate. Under BCRA, any ads which promote, attack, support or oppose an indentifiable federal candidate are regulated. Thus if you put a picture up on the TV screen and say nasty things about a canddiate, that can be interpreted as a campaign ad and thus subject to regulation.

Thus, despite what I think is a dumb result, Judge Jones is exactly right in his ruling under federal law and I would presume state law. While this may be a correct legal ruling, the underlying question becomes, what about politics has changed so much that we need a speech code, a set of regulations designed to inform the voter as to who paid for the ads?

Politics has always been a bit of a blood sport. At the heart of politics is control over the policy-making and enforcing apparatus of the state. Politics has been the venue of a number of episodes of character assasinations, brutal outings and complete misinterpretations of the indiscreations of youth. Yet, in 2005, reformers like John McCain, Russ Feingold, Chris Shays, Charles Lewis and Fred Wertheimer and others think that our sensitivities are too delicate to allow unfettered debate. In their eyes, we need a speech code, because we dumb common folk are too stupid to understand that when one group charges a candidate allegedly covered up some incident, that we can see through the rhetoric to see an attack ad when presented with it.

The next several election cycles will surely test the growing political speech code. Too much regulation is a bad thing and leads to stagnation, indoctrination, and lack of diverse opinions. If you don't believe me, go to any college campus with a sign that says "Political Correctness and Speech Codes are Tools of Liberals' Repression" and see how long you last.


Posted by Matt Johnston at August 29, 2005 6:13 PM