Christian Adams, who publishes the Rule of Law blog at PJ Media, created something of a dustup last week when he blasted Lois Lerner, the Campaign Legal Center’s Larry Noble, Senator Sheldon Whitehouse (D-RI), and others for arguing that conservative groups ought to be threatened with possible criminal prosecutions.
Mr. Adams makes some excellent points. The political pressure placed upon the IRS, and its subsequent involvement in regulating political speech, are both very troubling. So is the tendency of more than a few on the regulatory side of this debate to speak in a language of jail terms, criminal prosecutions, and outright suppression of speech—a pattern of which Senator Whitehouse’s demand is a prominent example, and which served as a primary catalyst for the IRS scandal. And perhaps most fundamentally, the continued collapse of the distinction between discussing issues (the Keystone Pipeline is a bad idea!) and partisan political advocacy (vote for the guy who likes the Keystone Pipeline!) is a legal and intellectual crisis.
But Mr. Adams’s own presentation distracts from the message. For one thing, his reference to the Campaign Legal Center as “Soros-funded” says nothing about the quality of its research or staff. Such labeling is precisely as tired, if somewhat more precise, than the relentless attempt to discredit any group that has “Koch connections.” The Campaign Legal Center is up-front about its pro-speech-regulation philosophy; the problem with the Center isn’t its funders, but its views. Those of us who support a robust reading of the First Amendment, and argue that speech should be judged by its content and not its supporters, would be advised to avoid ad hominem references.
In a similar vein, Mr. Adams takes issue with a listserv run by Professor Rick Hasen:
Hasen runs an online meeting hall for all the would-be speech totalitarians. They post, bluster, and kibitz about the latest news on their effort to erode the First Amendment and increase federal power. Whenever a free speech advocate seeks to contribute to the conversation at the blog, they are often deliberately given a cold shoulder and ignored, per plan. The ignored don’t understand that leftists aren’t interested in debate. Their pedigree requires the eradication of opposing ideas, not their incubation.
He goes on to suggest that, because this listserv is hosted by a public university (Prof. Hasen teaches at the University of California, Irvine), that it is appropriate to file “a freedom of information request demanding Hasen’s emails to the White House and other government officials including any on the topic of speech regulations.”
As a participant on that listserv—and I do not believe that Mr. Adams would consider me a “speech totalitarian”—I can say that while Prof. Hasen and I disagree on a great many things, I have never been given the cold shoulder or ignored. There have been exchanges both terse and tense, but that is to be expected in discussing this issue. This isn’t a field populated by folks with thin skins.
More importantly, a bedrock principle for many of us is that private speech should be left alone. Prof. Hasen is a private citizen. While leaving aside the merits of any particular state Public Records Act request (I am not a California lawyer), there is an unmistakable air of intimidation in requesting a private person’s emails, especially when that same request can be more properly addressed to any government officials involved.
More broadly, the confusion of issue speech with political advocacy, and the attempt to regulate and constrain the first in the same manner as the second, is an intellectual and philosophical error that has already caused, and will continue to cause, significant harm to the rights of ordinary Americans. But vilifying private issue speech is exactly what we on the free speech side of the aisle fight every day. Doing so ourselves does not further that cause.
