Posts Tagged ‘free speech’

What is freedom of speech?

March 3, 2010

New Zealand Bus’ decision not to allow the New Zealand Atheist Bus Campaign to place these advertisements on its buses has some, including some religious folks, complaining that free speech rights are being interfered with. While I think that the advertisements would have stimulated a healthy debate (a debate which is happening already to some extent thanks to the publicity NZ Bus’ decision has generated), I don’t think this is a free speech issue (at least not one that implicates the Atheist Bus Campaign’s free speech rights).

What does the right to freedom of speech mean? It does not mean that I can compel other individuals to carry my message on their buildings or billboards or put up placards on their front lawn. It does not mean that you or I have a right force others to listen to our message. You’re free to stop reading this blog for instance, although I hope you don’t.

Freedom of speech is a restriction on government action. It is essentially a right not to be censored by the government. It is not a right that imposes positive obligations, rather it limits the way in which the government can act. Alan Dershowitz explains this point nicely in his book Rights from Wrongs:

There is no right to speak freely in all contexts. If you say something your boss does not like, he may fire you. Your spouse may leave you. Your parents may punish you. Your private school may expel you, and your friends may abandon you. Only the government may not restrict your right of free speech. (at 175)

So New Zealand Bus is free to choose whether to accept this or any other advertisement. Its right to free speech allows it to make that choice without censorship or direction from the government. That is of course not to say that we might not hope that it would carry any message to promote public debate but its refusal to do so does not interfere with the atheist campaigners’ free speech rights. Critics of New Zealand Bus’ decision are of course free to exercise their right to freedom of speech to try to convince it to change its mind (as they are doing).

I note that New Zealand Bus’ decision may raise other issues, such as whether it is discriminating against the atheist campaigners on religious grounds.  That’s an issue that I think Jesse has some thoughts on, so I will leave it for another day.

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Will corporations rush to increase spending in US elections?

February 22, 2010

A fascinating article at Politico discusses the likely impact of the United States Supreme Court’s decision in Citizens United. Briefly, the Supreme Court found that a prohibition on corporations and unions engaging in electioneering communication or expressly advocating for the election or defeat of a candidate was a violation of the First Amendment right to free speech.  There has been something of a Chicken Little response to the decision, as the video in Jesse’s comment below points out.

Anyway, the Politico article suggests that the response from corporates may be quite modest.  The article identifies a number of reasons why many corporations have been trying to get out of political giving:

In the past decade, corporations have actually been trying to get out of the business of big political giving. They sided with reform advocates when the McCain-Feingold law was first challenged in 2003 and testified on behalf of its ban on unlimited corporate giving to the political parties, which were dubbed “soft money” donations.

The reasons for this reluctance were complex. Some executives hated the way politicians always had their hands out, making appeals that were difficult to turn down for fear of retribution in the legislative process. Others didn’t like the lack of control they had over how their money was spent.

The court ruling would give corporate officials that control, but many of them may decide — especially those in publicly held companies — to keep the cash for their real business needs.

Running attack ads against political targets would create real risks of alienating customers and shareholders. And, given voters’ sentiments toward corporations today, most politicians would probably not welcome a glowing ad campaign on their behalf that was funded by Big Business.

The article goes on to note that:

The penchant CEOs have shown for keeping a low political profile for their businesses has been reinforced lately by shareholder groups that are pressing companies to publicly disclose their political spending and the process by which they distribute that money.

Currently, about 70 firms, or roughly half of the Standard & Poor’s top 100 companies including Microsoft, Aetna, and Time Warner, have adopted such practices.

Bruce Freed, head of the Center for Political Accountability, an organization that advocates for such disclosures, said he will redouble his efforts in light of the court ruling. He expects success largely because a shareholder disclosure policy will be a corporations best reason “to resist the heightened pressure” to give to political groups.

It will be interesting to watch the upcoming US midterm elections and see how corporates and unions respond to the Supreme Court’s decision.

Support for the First Amendment

February 20, 2010

An interesting post over at the Cato blog about public support for free speech in the United States.  The author concludes that:

In the abstract, Americans continue to support First Amendment freedoms. In concrete cases, majorities still often oppose the exercise of such freedoms. Citizens United vindicated the First Amendment in a specific case that a majority does not support. This gulf between principle and application has been and continues to be common among Americans.

This reminds me of Noam Chomsky’s point.  If you believe in freedom of speech, you believe in freedom of speech for the views you don’t like just as much as for the views you do.

No, yes, no. Will parallel campaigners be allowed to publish positive advertisements?

February 18, 2010

“No”, “yes”, “no”. No, not the New Zealand batsmen’s calling during their second innings in Hamilton but the answer to whether parallel campaigners are going to be allowed to publish advertisements encouraging voters to vote for a particular party or candidate.

Earlier in the week the government announced its reform package for electoral finance laws. I hope to blog my thoughts about the package shortly but in the meantime I want to say something about the regulation of parallel campaigns (third parties under the Electoral Finance Act 2007) and make a couple of comments about the select committee’s upcoming consideration of the Bill (when it is introduced into the House).

After the government initially announced the package it was unclear whether third parties would be allowed to publish advertisements encouraging voters to vote for a particular candidate or party without first being authorised by the candidate or party. (Parallel campaigners are required to obtain authorisation under the Electoral Act 1993 as it stands at the moment.)

Paragraph 75 of the Minister of Justice’s paper to the Cabinet Domestic Policy Committee seemed to make it plain that the requirement was being retained (parallel campaigners would not be allowed to run positive ads):

This will effectively create a more transparent regime than under the status quo, where the only requirement is for parallel campaigners to place their name and address on an election advertisement and obtain written authorisation where advertising supports the election of a constituency candidate or political party. Instead there will also be a central point where the details of parallel campaigners could be readily accessed by the public and the media, making it easier for people to inquire into the identities of parallel campaigners. (My emphasis.)

However Colin Espiner wrote that the authorisation requirement was being ditched and that positive ads would be allowed:

In addition, lobby groups will be able to advertise for as well as against political parties – raising the possibility of “back door” donations that get around the limits on what politicians can spend.

When David Farrar disagreed, Espiner responded on his blog saying that he had tripled-checked with Power’s office (and later blogged about the issue):

I have triple-checked this with Simon Power’s office (have you?) and I have been told emphatically that there will be NO restrictions on positive third-party ads, and they WILL NOT count towards a party’s campaign spending limit.

Power then made some ambiguous comments in the House in response to questions from Metiria Turei which could have been read as indicating that there would be no restrictions on third parties running positive advertisements.

The confusion was eventually cleared up when Espiner reported that the current authorisation requirements would be retained:

[Power] also announced that lobbyists running supportive campaigns for a party would have to seek the party’s consent, and they would count towards that party’s spending limit.

The upshot is that parallel campaigners will once again be restricted from endorsing candidates and parties without their consent. (Jesse also already blogged about the value of advertising here.)

However parallel campaigners may be subject to further regulation, with Power seemingly leaving the door open to the government accepting a cap on how much parallel campaigners can spend if consensus can be reached in the select committee. Espiner reports that:

Power confirmed in Parliament yesterday that under legislation being drafted to replace the repealed Electoral Finance Act, parallel campaigners would not face restrictions on spending or what they said during campaigns.

However, after an outcry from Labour and the Greens, Power said he was prepared to revisit the proposal if a select committee could agree on a suitable alternative.

This raises the interesting prospect that the select committee may make significant changes to the reform package. If the select committee does that the public may be denied an opportunity to have any comment on those changes. This was a danger that the New Zealand Law Society warned of in its submission to the Ministry of Justice in response to the Ministry’s Proposal Document:

2.2 … The usual select committee process can result in a committee recommending significant amendments to a bill based on public submissions, officials’ recommendations, and caucus input. These recommendations are then reported to the House without the opportunity for further public input on these amendments or how they have been drafted. In order to create legislation that is both clear and durable, the select committee that considers the bill should release an interim report seeking submissions on any amendments it proposes before it finally reports to the House.

2.3 The consultation process will of course be determined by the select committee that considers the bill and not by the Government or the Minister of Justice. However the Society encourages all members of Parliament, when referring the Bill to the Select Committee to:

(a) encourage the select committee to seek a second round of submissions on amendments that the committee proposes to recommend; and

(b) set a report back timetable for the bill that allows this to occur.

As far as I am aware, the government has not responded to the Law Society’s submission (if anyone knows of any government response, please let me know). Given that it appears that significant amendments could be made by the select committee, I hope that Parliament will follow the Law Society’s urging. It is one thing for parliamentarians to agree that their own spending should be capped but it would be quite another for them to decide that the spending of non-party and candidate groups should be capped, especially without giving the public an opportunity to comment on the proposal.

One final thought. The government appears to have committed itself to not acting unless there is a broad consensus in favour of any new rules. As Professor Geddis has noted, the government’s main concern appears to be to ensure that “the current political players are all on board with any alteration to the law”. As David Farrar has pointed out, objections from Labour and the Greens to changing the broadcasting rules has effectively killed any reform in this area.

Does this mean that if any of the other parties in Parliament object to capping the spending of parallel campaigners, such an amendment is also off the table? If it does, my reading of ACT’s submission is that they would be opposed to any cap on spending by parallel campaigners.