Parties: FEDERAL ELECTION COMMISSION, Appellant v. WISCONSIN RIGHT TO LIFE, INC. SENATOR JOHN McCAIN, et al., Appellants v. WISCONSIN RIGHT TO LIFE, INC.
Date: 2007-06-25
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Paragraph: 38 - The freedom of speech . . . guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment."
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Paragraph: 48 - N133* Under the test set forth above, that is not enough to establish that the ads can only reasonably be viewed as advocating or opposing a candidate in a federal election. "Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U.S. 88, 102, 60 S. Ct. 736, 84 L. Ed. 1093 (1940). Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor.
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Paragraph: 43 - This evidence goes to WRTL's subjective intent in running the ads, and we have already explained that WRTL's intent is irrelevant in an as-applied challenge. Evidence of this sort is therefore beside the point, as it should be--WRTL does not forfeit its right to speak on issues simply because in other aspects of its work it also opposes candidates who are involved with those issues.
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Paragraph: 66 - N124* But when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban--the issue we do have to decide--we give the benefit of the doubt to speech, not censorship. The First Amendment's command that "Congress shall make no law . . . abridging the freedom of speech" demands at least that.
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Paragraph: 85 - In this critical area of political discourse, the speaker cannot be compelled to risk felony prosecution with no more assurance of impunity than his prediction that what he says will be found susceptible of some "reasonable interpretation other than as an appeal to vote for or against a specific candidate." Under these circumstances, N278* "[m]any persons, rather than undertake [***362] the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech--harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas."
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Paragraph: 86 - It will not do to say that this burden must be accepted--that WRTL's anti-filibustering, constitutionally protected speech can be constrained--in the necessary pursuit of electoral "corruption." We have rejected the "can't-make-an-omelet-without-breaking-eggs" approach to the First Amendment, even for the infinitely less important (and less protected) speech category of virtual child pornography.
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Paragraph: 88 - The Court rejected the principle that protected speech may be banned because it is difficult to distinguish from unprotected speech. Ibid. N279* "[T]hat protected speech may be banned as a means to banunprotected speech," it said, "turns the First Amendment upside down."Id., at 255, 122 S. Ct. 1389, 152 L. Ed. 2d 403. The same principle must be applied here. Indeed, it must be applied a fortiori, since laws targeting political speech are the principal object of the First-Amendment guarantee. The fact that the line between electoral advocacy and issue advocacy dissolves in practice is an indictment of the statute, not a justification of it.
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Paragraph: 33 - The test to distinguish constitutionally protected political speech from speech that BCRA may proscribe should provide a safe harbor for those who wish to exercise First Amendment rights. The test should also "reflec[t] our N280* 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.'" Buckley, supra, at 14, 96 S. Ct. 612, 46 L. Ed. 2d 659 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)). A test turning on the intent of the speaker does not remotely fit the bill.
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Paragraph: 36 - A test focused on the speaker's intent could lead to the bizarre result that identical ads aired at the same time could be protected speech for one speaker, while leading to criminal penalties for another. See M. Redish, Money Talks: Speech, Economic Power, and the Values of Democracy 91 (2001)N281* ("[U]nder well-accepted First Amendment doctrine, a speaker's motivation is entirely irrelevant to the question of constitutional protection").
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Paragraph: 66 - Our jurisprudence over the past 216 years has rejected an absolutist interpretation of those words, but when it comes to drawing difficult lines in the area of pure political speech--between what is protected and what the Government may ban--it is worth recalling the language we are applying. McConnell held that express advocacy of a candidate or his opponent by a corporation shortly before an election may be prohibited, along with the functional equivalent of such express advocacy. We have no occasion to revisit that determination today. But when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban--the issue we do have to decide--we give the benefit of the doubt to speech, not censorship.
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