McCain-Feingold

June 2003

What am I missing? Seems to me that we may have seen a recent Federal District Court decision rendered in New Orleans that could provide a simple roadmap to the much anticipated pronouncement later this fall from the nine wise souls sitting on the Supreme Court regards McCain-Feingold.

The plaintiffs in the battle to strike down what they view to be limits on speech need to get GE, Viacom, Disney and any other companies that own large media outlets to join the battle on their side, or maybe not. The argument the big guys could make to strike that horrible law down could probably be better made just as well by a small family owed TV, Radio or Newspaper outlet too, heck even a website could join the argument.

The case in question that provides the needed illumination dealt with two business partners, Josh and Anne, who wanted to open a bookstore in New Orleans. To buildup enough capital for their business to be able to afford a store front they wanted to sell books as street vendors on the corner. The perfect American success story, I can see a movie of the week on Lifetime somewhere in there. Well the big bad bureaucracy in the Big Easy wouldn’t let them. The City, with no law against public intoxication and seemingly even against public nudity, would not let these poor partners sell books. I guess if they wanted to have a bar or open a strip club on the pavement next to the school zone crosswalk that would have been ok.

After fighting City Hall and getting nowhere in their mission to bring their books out of the shelves and into the open they filed suit in Federal Court on First and Fourteenth Amendment Grounds. In a decision of great clarity, that shows that at least this Judge had read a book or two, heck he may even have glanced over the Constitution once or twice, he found for our erstwhile street hustlers.

Why did he find for them? Simply put he stated in his opinion, “The First Amendment applies in this case because book selling is a form of expression… It has long been settled that the sale or distribution of literature in a public sidewalk is protected speech.”

Which brings me to my troublesome query? If the sale of literature in public is an undisputed form of expression (without even examining their simple desire to make a buck selling Faulkner or Flynt) and therefore protected speech (even though they, the sellers, aren’t really saying anything) what makes these simple book mongers any different from the suits at CBS, ABC, NBC, CNN, Fox, The New York Times (I think you can now find their birdcage liner next to Hillary & Friend’s tome in the Fiction Section of a new street vendor’s stall on Bourbon Street), or any other media outlet where you can get your parsed world view. I mean, if selling and distributing a political book in public is protected speech what makes selling and distributing a political ad any different?

McCain-Feingold wants to argue that some producers of political ads hide who their contributors are and therefore that will corrupt the process due to the influence of BIG MONEY. Well Hillary hide her contributors (her three un-credited ghost writers) and she got BIG MONEY for her new book of political speech! Speech, whether spoken, written, or acted out as an Oscar worthy piece of lip biting, finger waving performance art are all forms of expression. The artist, the producer, the distributor and the consumer are all exercising their rights of expression.

If it is fine for our elected representatives to go for the gold in shilling political thoughts put on paper by unnamed contributors any different than it would be for me to get a bunch of contributors together to hawk our thoughts to those same masses. If someone has the right to sell and support expression, be it in a store front in the Mall or on a table on the street, how is that any different from a TV Station selling and supporting expression over the air or through a cable? It’s not. Let’s hope the nine wise say of McCain-Feingold that whatever the reason is, political or otherwise, going for the gold in public is just fine too.

David W. Riddle
Mesa, Arizona