A relatively new group (perhaps so new it doesn’t even, technically, exist yet) called American Issues Project has begun airing ads critical of Senator Obama and his connections to Bill Ayers, an unrepentant terrorist who helped to found the Weather Underground, a group active in the U.S. in the 60’s and 70’s (now largely defunct due to incarceration and a lack of reasonable workplace safety procedures in their bombmaking operations).
The Obama campaign is not amused. A great deal of their reaction is what we at CCP would call "vigorous and robust exercise of the First Amendment," such as a letter challenging some aspects of the AIP ad, and a response ad from the Obama campaign.
Other aspects of this story are far more troubling, and indicate just how far down the road of speech regulation and suppression we’ve come since the Founding Father’s first wrote "Congress shall make no law…"
The Obama campaign is demanding a Department of Justice (DoJ) investigation into AIP because, according to Obama general counsel Bob Bauer, AIP "is not incorporated anywhere; nor is it registered with either the Federal Election Commission or the Internal Revenue Service."
Whether this is accurate or not (and knowing Bob, it’s almost certainly correct), it raises a simple question – why, exactly, should citizens have to register in order to speak out about a candidate? Registration, incorporation, organization – these things all take time, and speech sometimes can’t wait. There is, after all, an election coming up, and a fair number of people are paying close attention to Barack Obama at this very moment due to the Democratic convention.
Just as troubling, given recent calls to reinstate the so-called "Fairness Doctrine" and the failure of Congress to ban the return of government censorship of radio, is the Obama campaign’s reference to Federal Communications Commission (FCC) regulations and television stations’ "obligations" under those rules and their "commit[ment] to operating in the public interest." While no doubt unintentional, raising the specter of FCC regulations and obligations in the context of political speech does not bode well for broadcaster freedom in the event the "Fairness Doctrine" does return.
A specific aspect of the Obama campaign’s response also raises troubling issues. The reasoning is that because the statements made by AIP in their ad are "utterly false" according to the Obama campaign, this alone is sufficient to prevent the ads from being seen. Political speech is, by its very nature, hotly debated, with what is true and what is false often the very basis of political disagreement.
While the Obama campaign does a good job refuting one charge (that Obama called Ayers "mainstream" and "respectable"), the other charge the campaign thinks it can prove to be false (that Obama’s political career was "launched in Ayers home") is far more a matter of opinion and terminology, and can’t really be proved one way or another. Trying to use such "proof" to bring the weight of FCC regulations down upon someone smacks of political censorship of unwelcome speech, something far from what the First Amendment envisions.
Ultimately, this is about a group of citizens who think it’s important to let their fellow citizens know something they believe to be unsavory about a political candidate. Attorneys on all sides will no doubt earn their fees over the next few weeks arguing about whether AIP filled out the appropriate paperwork or are properly organized in order to be allowed to speak. But it is a sign of just how bad our system of campaign finance and political speech regulation has become that these are even questions that need to be argued.
