Say this much for Professor Randy Salzman’s call for a ban on 30 and 60-second political ads in the Christian Science Monitor: at least he’s honest.
We’ve made the point many times before that campaign finance laws will inevitably lead to censorship. If people cannot support their favored candidates in one way, they will find others. Ban large direct contributions to candidates, and supporters will run radio and TV ads. Ban those, and they will switch to newspaper ads or to the Internet. Ban those and they will use billboards and yard signs. The only way to control money in campaigns is to ban or regulate every form of mass communication available.
And, in fact, this is precisely what happened under campaign finance laws until the regulations reached films and the government suggested that books were next on the chopping block. The Supreme Court blinked, and Citizens United was the result.
Salzman recognizes that people will inevitably find ways around campaign finance laws, but instead of rejecting the laws, he wants us to reject free speech. According to Salzman, the only way to realize the true purpose of the First Amendment is to ban the “scalding, manipulative speech of emotional political ads.” Salzman proposes a law imposing a minimum time requirement of at least 30 minutes for all broadcast and cable political ads.
But why would that solve anything? Placing a minimum time limit on ads would simply price some candidates out of the advertising market altogether, which would inevitably lead to calls for limits on what the networks could charge for airtime or restrictions on the amount of ads well-funded candidates could run. And the increased cost of advertising would put a high premium on candidates appearing on news broadcasts and talk shows, which would likely necessitate some sort of fairness doctrine, lest some candidates get more airtime than others. And what happens when candidates start spending more on print and Internet advertising? Are the professor Salzmans of the world going to be satisfied with a ban on only short radio and tv ads?
Ultimately, the problem with campaign finance laws is not that they don’t ban enough speech, but that they regulate speech at all. Once you start down the road to censorship, there’s no logical stopping point.
That’s why we have a First Amendment—to stop regulation of speech before it starts. Contrary to Professor Salzman, the premise underlying the First Amendment is not that speech will lead to any particular result—whether we conceive that as perfect competition in the marketplace of ideas, enlightened democracy or more civil political campaigns. The premise of the First Amendment is that freedom of speech is a right and that individuals get to choose for themselves what to say, hear and think. Or, as the Court put it in Citizens United: “The First Amendment confirms the freedom to think for ourselves.”