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Government can't squelch free speech

By Matt Welch, Special to CNN
  • Supreme Court ruling doesn't represent a step backward, says Matt Welch
  • He says the ruling stops government from inhibiting free speech about politics
  • Welch says people aren't sheep; can make decisions about campaign advertising
  • He says ruling will allow wide variety of advocacy groups to air points of view

Editor's note: Matt Welch is Editor in Chief of Reason magazine, a libertarian magazine whose motto is "free minds and free markets."

(CNN) -- For everyone licking their wounds after Thursday's landmark 5-4 Supreme Court decision in Citizens United v. the Federal Election Commission, worried that the evil corporations are now poised to ruin American democracy once and for all, in the bogus name of free speech, here's a word of potential hope: I used to be one of you, too, and today I'm happy as a clam. Maybe you can be too, eventually. Here's why:

Free speech really does mean free speech, and the laws that the "Citizens" ruling overturned directly and heinously restricted the stuff. Forget for the moment the broad characterization of the ruling -- such as The New York Times claim that it "sweep[s] aside a century-old understanding" -- and drill down to the individual case in question.

Citizens United, a conservative 501(c)(4) nonprofit that has funded a dozen political documentaries over the years, produced a critical documentary about Hillary Clinton in 2008 entitled "Hillary: The Movie." By a decision of the federal government, which was enforcing the Bipartisan Campaign Reform Act (known more broadly as McCain-Feingold), this piece of political speech was banned from television.

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Let's boil it down to the essential words: Political documentary, banned, government.

You don't have to be a First Amendment purist to intuit that political speech was, if anything, the most urgent subcategory covered by the First Amendment's "Congress shall pass no law" restrictions. And you don't have to be a Hillary-hater to imagine the shoe on the other foot. What if's 501(c)(4), Campaign to Defend America, had been blocked by George W. Bush's Federal Elections Commission from broadcasting "McCain: The Movie"? Wouldn't that stink, too?

As Justice Anthony Kennedy wrote in his majority opinion, "The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations -- including nonprofit advocacy corporations -- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. ... If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

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We are living in a fragmented media age in which many nontraditional sources are producing journalism, even and especially of the advocacy variety (my opinion magazine, Reason, is funded by a nonprofit 501(c)(3). Why should nonprofit journalism producers -- like the Sierra Club, say -- have to ask for the government's permission to send a political documentary across the airwaves?

For many liberals I know, the free-speech objection to campaign-finance law is just a smokescreen for enabling corporate villainy. I mean, Mitch McConnell cares about the First Amendment? I used to think that way, too. But try this exercise: Check out the free-speech objections by people who don't want Goldman Sachs to take over the West Wing, or Wal-Mart to bulldoze private residences. I'm talking about anti-corporatist crusaders like Tim Carney, anti-eminent domain-abuse litigators like the Institute of Justice, or even former Federal Elections Commission chief Brad Smith.

And for those many who claim to be First Amendment absolutists while also supporting McCain-Feingold -- I'm looking at you, some of my fellow journalists -- here's a question that the former begs of the latter: What if you're wrong?

Even if you just can't bring yourself to believe that people who take civil liberties seriously have long-held serious civil libertarian criticisms of campaign-finance laws, or if you simply think they're all wrong, I'll offer this last salve: It has never been easier for groups of citizens to swarm together and flow money through the Internet toward campaigns and candidates who excite them. Ask Ron Paul -- or more relevantly, Barack Obama -- what's more powerful: $10 million from Dr. Evil Industries, or $10 each from 1 million people who can actually vote?

The American people are not sheep, eager to be led by the highest bidder. As the Supreme Court rightly noted today, "The First Amendment confirms the freedom to think for ourselves."

The opinions expressed in this commentary are solely those of Matt Welch.