Good news on the First Amendment front recently came from, of all places, the 9th U.S. Circuit Court of Appeals.
The same federal appellate court that found the words “under God” in the Pledge of Allegiance to be an establishment of a state religion thankfully honored the part of the First Amendment guaranteeing free speech.
A three-member panel of the court struck down a 10-year-old Arizona law restricting last-minute campaign ads by political action committees. The law is intended to prevent blindsiding candidates with “hit pieces” often known as “October surprises” — although such things happen into November right up to election day.
The 1993 law required at least 24 hours’ notice to a candidate of any commercials created within 10 days of an election and paid for with “soft money” advocating either the election or defeat of that candidate.
Is negative campaigning distasteful? Yes, but it is effective. It wouldn’t be employed and precious funds wouldn’t be spent on it if it weren’t. And as the court correctly noted, distastefulness of speech is not a reason for restricting it.
When voters decide to discount negative campaign messages in making their decisions, that decision will show up in polling and political-action groups will stop spending soft money on it. But — and the use of this sentence by the 9th Circuit warmed our hearts — “it is not the function of government to promote speech it deems more valuable and to suppress speech it deems less valuable.”
Voters may be discounting 11th-hour “hit pieces” already. Early voting is steadily gaining in popularity, and the more voters who cast ballots weeks or even days before the negative ads reach the airwaves or print, the less effective those ads will be and the greater likelihood that they will not be created.
In other words, the 9th Circuit has left it up to Arizona voters to decide what speech is important to them during a political campaign and what is not. This is sound thinking. After all, we — not judges — are the ones our republic calls upon to decide who represents us.