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Political speech chill

James J. Kilpatrick (The Augusta Chronicle) -- In the wake of the Senate's recent action on campaign finance, it appears likely that some sort of ill-advised bill eventually will get through the House and be signed into law. An expedited court test will follow, and a year hence we could learn if the Constitution means what it says.

What the Constitution says is: "Congress shall make no law abridging the freedom of speech, or of the press."

If the Supreme Court accepts a Mississippi case now pending on a petition for review, we could have an early warning of what is to come. The case challenges the power of a state to forbid paid political speech immediately before an election. The Senate bill would do the same thing at the federal level. If this is not an "abridgment" of a cherished First Amendment right, the words of the Constitution have lost their meaning.

Mississippi chooses the nine justices of its Supreme Court by popular election. Last November saw contests for four seats on the bench, among them a race between Justice Jim Smith, seeking re-election, and Frank G. Vollor, a lower court judge in Hinds County.

The U.S. Chamber of Commerce, a nonprofit corporation with affiliates in Mississippi, thought highly of the four incumbents. Without registering properly with the secretary of state, the Chamber prepared 30-second television commercials promoting their qualifications. The ad for Smith began with an American flag and a scales-of-justice illustration. A narrator commented that Jim Smith had used common sense. The commercial continued:

"As a district attorney and prosecutor, he had a 96 percent conviction rate. As a judge, he understands that victims' rights come ahead of a criminal's rights. Judge Jim Smith. For 10 years on the Rankin County bench he upheld existing laws, instead of trying to make new ones. He carried that same common sense to the Supreme Court in 1993. Judge Jim Smith -- common sense on the bench!"

The commercials for the other three incumbents were to the same effect. Chief Justice Lenore Prather was lauded for using commonsense principles. Justice Keith Starrett, a Baptist deacon, had formed the state's first drug court and saved the taxpayers half a million dollars. For her part, Justice Kay Cobb had worked to end the judicial backlog and ensure that death penalty cases are tried promptly.

As soon as the first commercial aired, Mississippi's secretary of state asked Attorney General Michael Moore to take action. The Chamber of Commerce responded by suing Moore in U.S. District Court in Jackson. On Nov. 2, District Judge Henry T. Wingate ruled that the commercials amounted to independent expenditures that expressly advocated the re-election of the incumbents. Thus encouraged, Candidate Vollor on Nov. 3 obtained a state court injunction against further broadcasts. Mississippi's Supreme Court upheld the order, and the Chamber has asked the U.S. Supreme Court for relief.

Were the prohibited commercials "express" advocacy? The intensifying adjective "express" comes from the U.S. Supreme Court's landmark opinion of 1976 in Buckley v. Valeo. In a footnote the high court indicated that express advocacy could be established by such terms as "vote for" or "elect" or "defeat." These specific exhortations did not appear in the Mississippi commercials, but Wingate was not persuaded by their absence. He viewed the commercials as "thinly veiled exhortations" to support the incumbents. They constituted "a plain, clever attempt to avoid the reach of Mississippi reporting and disclosure laws."

I agree. But the question put to the Supreme Court is whether the laws impose an unconstitutional abridgment on the Chamber's right of free speech.

The high court has had a bellyful of election cases lately and may not have the stomach for another hassle, but the issue is not moot. Similar injunctions have been granted by state courts in Wisconsin and Florida. The meaning of "express advocacy" is not at all clear. Neither is it clear -- at least it is not clear to me -- how even the most express advocacy can be limited or forbidden. This is what a free society is all about.

Granted, the right of free speech is not absolute. Local governments may prescribe uniform rules for political posters and billboards. Sound trucks may be restricted to certain hours. When "independent expenditures" amount to bribery, the law is not helpless. But something is gravely wrong if the law forbids me to buy TV time in the week before an election to say that Justice Jim Smith is a fine fellow who ought to be returned to the bench.

(c) 2001 The Augusta Chronicle via Universal Press Syndicate

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