“That’s always the problem with limits on speech: the problem of who’s in charge.”

“That’s always the problem with limits on speech: the problem of who’s in charge.”

Just as I mentioned Bruce Hopkins a couple of posts ago as a titan of tax-exempt organization law, Bob Bauer is a titan of campaign finance and election law. He is a former White House Counsel, and a decidedly partisan Democratic “sledgehammer“. But he is also one of today’s most perspicacious and even analysts, and, from his perch at More Soft Money Hard Law, sometimes turns out blog posts that perfectly frame an issue. So today.

There’s much discussion about speech limits: when are they proper (and not)? Are they ever proper? Where to draw the line?

Today Bauer points to the essential question in each of these: who decides?

Is there an exception to free speech if its purpose is to exclude from the conversation certain views or groups? …

There is a strong echo of this argument in the conflicts over campaign finance regulation. Those who would like to see the imposition of tighter limits on campaign spending … do not peg their point to the content of the paid message: It could be on any subject. But they believe that the capacity to spend heavily to promote one’s views is an act of domination over those who don’t have the resources to answer. …

The Supreme Court in Buckley v. Valeo famously rejected the notion that the speech of some may be limited in order to lift up the speech of others. … The historical record … tends to show that well-intended speech restrictions end up working against the interests of the marginalized and underprivileged. Once limits on access to a forum may be set, choices of who may spend, and how much, must be made. …

So, for progressives, the question presents itself– to whom are they prepared to cede that power to set speech limits? This question cannot be separated from the question of the wisdom of limits themselves. Limits are not all the same, and their design and administration, including any exceptions that are provided for, make all the difference. Someone has to decide. …

That’s always the problem with limits on speech: the problem of who’s in charge.

Whether or not you approve of Donald Trump as President, his election has caused many who once single-mindedly approved of limits on speech to reflect on what might happen when the “other guy” gets in power.

But then again, some didn’t get the memo. They should — and re-read — what Bauer wrote today.

UPDATE: Kevin Drum has a quick affirmation of this point in Mother Jones, titled, appropriately: “Who Decides?

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