Skip to Content »

Free speech during elections – US Supreme Court decision

  • January 23rd, 2010

O to get here the simple intelligence of the US Supreme Court (or at least its majority opinion).

Their decision this week did no more than say that the first amendment to their constitution means exactly what it says. It talks about freedom of speech, not the freedom of speakers – you cannot abridge rights of free political speech just because you do not like some kinds of speakers who want to participate (this case struck down gags on companies being able to contribute to political debate).

It reminds me that we await an Electoral Finance Reform Bill. The Government's proposal paper suggested complicated controls on "parallel campaigning" (i.e. people other than political parties campaigning on what they think the issues are and who should be elected). The draft Bill must be getting close.

David Farrar was quickly on to this week's Supreme Court decision. The reasoning supports his October submission at least as it objected to controls on parallel campaigning.

Please lets have in the awaited Bill a similarly penetrating simplicity to replace the complicated "balance" our anointed want to supervise. They provide no evidence for their imagined ills of genuine freedom to participate in (and to fund) election debate.

Some will genuinely fear that our democracy could be overwhelmed by the spending of foreigners with subversive intent, or rich people. But I'm satisfied from my time on the Justice and Electoral Select Committee that most of the support for ever tighter rules on campaign finance was out of resentment at the thought that uncouth outsiders could disrupt the ritual dance of the established parties and their unscripted collusion with the political media heavyweights.

Labour and Green hostility to electoral free speech and work for more finance restrictions were designed to make taxpayer funding inevitable. Labour has lost its power to attract voluntary donations. The Greens hate the way markets work to let "the irreligious" give practical effect to their preferences.

For other political parties the attraction of tight rules, and the lack of interest in evidence on how they work or are likely to work in practice, seemed to flow from an intuitive insider's wish to:

a)  avoid facing the cut and thrust of immediate response knocking debate in political advertising (spending limits mean our campaigners can not afford to depart from their pre-planned campaigns, and tit for tat ads work best on electronic media, from which most of our electoral free speech is banned);

b) allow the insiders to decide what issues will run in the election tournament, because outsiders can never match the insiders' command of media attention;

c) maintain the advantages for the experts of the established parties who know the routes through the regulatory thickets

d) ignore the incentives for cheating none-the-less. They assume they will be too smart to be caught, despite campaign finance scandals all over the world which validate cynicism about the honesty of politics and politicians. Over time I found that those who spoke most loudly about 'restoring confidence and keeping money out of politics etc' were the least honest;

The main practical difference between political campaigns here and in the more vibrant democracy of the US seems to me to be the power of our media gatekeepers who decide who, and what causes, will get public attention. In the US the candidates and those who love them or hate them can at least ensure oxygen to an issue of interest to ordinary people, whether the media and party elite like it or not.

In New Zealand elections there can be large areas of national concern that are by consensus 'off limits'. Without Winston Peters' ability to force the media to cover taboo topics, we may have more of them.



<blockquote>Their decision this week did no more than say that the first amendment to their constitution means exactly what it says.</blockquote>
I'm pretty sure it can't mean that.
Since the 14th Amendment, and the doctrine of incorporation, the words "Congress shall make no law" in the first amendment have been rendered pretty meaningless. It was quite clear in the US – for quite some time – that the first amendment only protected US citizens against federal action. States could abridge rights of free speech without worrying about the first amendment.


[…] It reminds me that we await an Electoral Finance Reform Bill. The Government’s proposal paper suggested complicated controls on “parallel campaigning” (i.e. people other than political parties campaigning on what they think the issues are and who should be elected). – Stephen Franks […]

Leave your comments:

* Required fields. Your e-mail address will not be published on this site

You can use the following HTML tags:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>