The optimist, we are told, dives into a pile of horseshit because he is sure there must be a pony in there somewhere. I must be an optimist, because I suffered all the way through Jonah Goldberg's screedy Los Angeles Times column yesterday about how the liberals are a-gonna destroy free speech. And to Goldberg's credit, there was a pony in there. Eventually. A spavined beast destined for the glue factory, to be sure, but a pony all the same.
Goldberg's little pony is his entirely apt complaint about the Obama Administration's position in Citizens United v. Federal Elections Commission, which was argued before the Supreme Court last week. The case concerns Hillary: The Movie, a rather belabored effort at the seemingly easy task of convincing people that Hillary Clinton is fit neither for high office nor for polite society. The question presented in the case is whether the Bipartisan Campaign Reform Act of 2002 — one of the latest stars in the firmament of federal restrictions on political speech — is constitutional to the extent it purports to prohibit release of the film or others like it when funded by corporations or certain interest groups. As Goldberg points out, the Obama Administration — which elected to continue to support the law and the FEC's position before the Supreme Court — was forced by justices to concede the ridiculous implications of its position:
But his task seemed easier than that of Deputy Solicitor General Malcolm L. Stewart, who quickly found himself pulled into a discussion of something at issue in neither the law nor the case: whether the government could prevent using corporate or union funds to publish a book that mentioned a candidate for office within the election time frame.
Stewart said that it could, though he quickly added that there was an exception in the law for the media, and that the law said nothing about books.
"That's pretty incredible," said Justice Samuel A. Alito Jr.
And that set off a search for hypotheticals. Justice Anthony M. Kennedy wondered about Kindle, the electronic device. Roberts bore down.
"If it has one name, one use of the candidate's name, it would be covered, correct?" Roberts asked.
"That's correct," Stewart replied.
"It's a 500-page book, and at the end it says, 'And so vote for X,' the government could ban that?" Roberts asked again.
It is entirely right and fit that Goldberg should highlight the continuing threats to free speech posed by modern campaign finance legislation.
So why is Goldberg's pony spavined, and from whence comes the horseshit?
Well, first there is the attempt to portray the Obama Administration's position before SCOTUS as emblematic of a liberal position. There are a few problems with this. The first is that the Bipartisan Campaign Reform Act of 2002 was co-sponsored by Senator John-McCain, subsequently the Republican Party's choice for President of the United States in the 2008 race, and even Goldberg's choice, albeit a reluctant one. Moreover, the Obama Administration did not invent this position — it is simply a continuation of the FEC's position in the courts below under the Bush Administration. Though the FEC did not file its brief before SCOTUS until this February, its position was locked in well before that. Hence Goldberg's implication — that the FEC's arguments before SCOTUS represent a censorious sin that may be laid squarely and exclusively at the feet of liberals — is disingenuous horseshit.
Moreover, Goldberg takes half the column to actually get to the point. The rest is noise. The political speech issue presented by this case should be able to carry a dozen columns by itself. But Goldberg cannot resist forcing it into a stridently partisan and bitterly culturally conservative frame amounting to "LOL liberals suck because they defend porn but don't defend political speech":
In 1996, Milos Forman directed "The People vs. Larry Flynt," the propagandistic film that made a "1st Amendment hero" out of the publisher of Hustler, a racist and filthy porn magazine. And yet Frank Rich of the New York Times dubbed it "the most timely and patriotic movie of the year."
Even if you've never seen the movie (or read Hanna Rosin's contemporaneous debunking of it in the New Republic), it's easy to guess why the film was a favorite of people like Rich. It whitewashed Flynt while demonizing prudish conservatives and religious traditionalists.
The fact that Goldberg cannot discuss a serious free speech issue without venting his spleen about an unrelated twelve-year-old Woody Harrelson movie speaks more about Goldberg's lack of seriousness than it does about any honest assessment of the sins of censorship committed on either side of the spectrum. This is particularly true when his attempt to pin the fault on the donkey is so misleading. Campaign finance "reform" presents free speech problems attributable to the indifference or mendacity of Republicans and Democrats, liberals and conservatives. (So, for that matter, does the history of restrictions on pornography and "obscenity," a goal furthered by both cultural conservatives and liberal feminists.) Pretending otherwise interferes with attempts to forge consensus on freedom of expression, a value that people across the political spectrum should respect.
Goldberg's little pony is worth petting. But I wish he had arranged for it to relieve itself elsewhere before he trotted it out.
Last 5 posts by Ken White
- Department of Justice Uses Search Warrant To Get Data On Visitors to Anti-Trump Site - August 14th, 2017
- America At The End of All Hypotheticals - August 14th, 2017
- Lawsplainer: Why John Oliver Is Anti-Diversity Now - August 11th, 2017
- Anatomy of a Scam, Chapter 15: The Wheels, They Grind - August 10th, 2017
- We Interrupt This Grand Jury Lawsplainer For A Search Warrant Lawsplainer - August 9th, 2017