home > archive > 2002 > this article
CFR and the road to Oceania
By Bruce Walker
The legal, constitutional, and philosophical defects of campaign finance "reform" are too obvious to require detailed dissection: speech is speech; expression is expression. All forms of expression - verbal, symbolic, and the eloquent expression of silent inaction were intended to be protected by our Founding Fathers.
Expression itself stretches across an indivisible continuum. What is "campaign speech" and what is "political speech"? What is "political speech" and what is "philosophical speech"? What is "philosophical speech" and what is "social commentary"? What is "social commentary" and what is "social humor"? Expression is the interaction between people, and this almost never has a single, specific character; expression is rather a blending of logic, emotion, interest, ideals, and many other parts of human consciousness.
If all forms of expressions have equal protection under the Constitution, and if all types of expression have equal protection under the Constitution, does that mean that the substance of expression itself is not subject to regulation? No, it does not. The Constitution itself provides several clear instances in which Congress may pass laws that regulate - even criminalize - the substance of expression.
Treason may be expressed in many ways - passing secret military information, acting as agents of influence, sabotaging activities through lies - and however treason manifests itself, Congress may punish this expression. The Constitution gives guidance on the burden of proving treason, but it does not protect treason.
The Constitution grants the federal government power to set standards for weights & measurements, and it also allows Congress to establish laws to prevent counterfeiting. Federal regulation in these and related areas is intended to promote commerce by setting ground rules for honest dealings. Printing false stock certificates or selling lead bars covered with gold paint is "expression" that is subject to government regulation. Fraud is not protected simply because it may manifest as expression.
Copyright laws protect intellectual property, much like patent law, and the Constitution also allows and encourages Congress to pass laws limiting how others may use the work of an author or inventor. Copyright law even addresses the particular issue of "expression" rather than simply written or spoken words.
There is no constitutional right to commit perjury or make false statements on affidavits. The public rights protected by perjury laws were once also true in the area of the private rights to be protected from slander and libel. Federal courts decisions - ever vigilant in protecting government rights and ever slothful in guarding private rights - have gutted slander and libel laws, but these have never been considered unconstitutional.
There is a common thread through nearly all of these exceptions to regulation of the content of expression. In order to see this thread clearly, consider the most common example of when government can regulate speech: you cannot yell "Fire!" in a crowded theater. That statement is inaccurate. You cannot yell "Fire!" in a crowded theater, unless you believe that there is a fire. Honesty cannot be regulated, but dishonesty can be regulated.
It is not treason for Congresswoman Lee to vote "No" when the
President asks for a declaration of war against our enemies. Her vote
may be wrong, stupid, and many other bad things, but it is not unlawful
and it is not treason. Meanness, folly, ignorance, and boorishness are
protected by the Constitution. Our free right to choose with whom we interact
allows private vices to shrink in an open society, and government does
not help the process by interjecting its influence.
"The Revolutionary Marxist Front proudly supports Comrade Barbara Boxer in her campaign against traditional families, American values, and bourgeois notions of right and wrong. There is not a single issue in which she has not advanced our agenda for overthrowing fascist Amerika and replacing it by a ruthlessly thorough Marxist government. It worked in North Korea; it worked in Cuba; and it will work here too. We award Comrade Boxer our Joseph Stalin Achievement Award."
Or this: "The Racial Supremacy Council is proud to honor fellow
Democrat Robert Byrd, Chair of the Senate Appropriations Committee and
former Ku Klux Klan member, with our Lifetime Achievement Award. He, and
the long, proud line of fellow Democrats who believe that race and color
are destiny, are the only way to keep Republicans from lifting inferior
races out of poverty, ignorance, and helplessness."
These are, of course, gross exaggerations, which would never be effective in campaigns, but make the text and the imagery and the invented facts a bit subtler and a bit less confrontational, and the ads could be quite effective.
So which is better for a working democracy: honest political advocacy or hidden dishonest political advocacy? The next "remedy" of the Left is clear. Government must be able to read the minds of those who speak, write, sing, gesture, or otherwise express themselves. Who can do that? Orwell knew: the Thought Police.
Bruce Walker is a senior writer with Enter Stage Right. He is also a frequent contributor to The Pragmatist and The Common Conservative.
Other related articles: (open in a new window)
Get weekly updates about new issues of ESR!
© 1996-2013, Enter Stage Right and/or its creators. All rights reserved.
You've seen the banner,
now order the gear!
Visit ESR's anti-gun control gear web site for T-shirts, mugs and mousepads!