June 3, 2010

Judge rules that Transparency trumps Free Speech

Ruling that "[s]ome limited restrictions on free speech may constitutionally be imposed to protect the proper and effective exercise of First Amendment rights," District Judge James Wilson Jr. has issued a preliminary injunction barring the Alliance for America's Future from running ads on behalf of Republican gubernatorial candidate Brian Sandoval.

Judge Wilson Jr. ruled that only when voters know, among other things, "... the sources of a candidate's support," can they make fully informed judgments. When this information is not disclosed, Judge Wilson Jr. argued, the marketplace of ideas becomes crippled.

He acknowledges that while disclosure requirements "may at times inhibit" free speech, such disclosure requirements are "indispensable" for the proper exercise of First Amendment rights by the voting public.

Both free speech and transparency are essential in politics. As Wilson himself acknowledges, "[t]he First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office."

The question boils down to which matters more: the voting public's right to know who is spending money on behalf of a candidate or a group's right to speak freely on behalf of whomever them choose.

I personally think that neither of these concepts should "lose" out to the other and a compromise can be found between these competing ideas by embracing both unrestricted freedom of speech and robust transparency requirements.

An unaffiliated group should be able to expressly advocate on behalf of a candidate, including using "magic words" (e.g., "vote for," "elect," "support," etc.) that are currently banned in these types of ads.

But while outside groups' freedom of speech should be protected, they should be subject to stringent transparency requirements. Campaign disclosure rules have been repeatedly upheld as constitutional, most recently in the Citizens United ruling.

You can read Judge Wilson Jr.'s ruling here.