Speech and its limits

ON WEDNESDAY, a majority of justices on the U.S. Supreme Court seemed appropriately sympathetic to the claim that an overly rigid interpretation of the McCain-Feingold campaign-finance law prevented an anti-abortion group from broadcasting advertisements in 2004 about an important matter before Congress.

The ads, paid for by the nonprofit Wisconsin Right to Life, would have urged citizens to contact the state’s two U.S. senators and tell them not to filibuster President Bush’s judicial nominees. Only one of the senators, Democrat Russell D. Feingold, was seeking reelection, but the group was nonetheless told that the mention of his name turned its grass-roots lobbying into an “electioneering communication” that could not be legally aired within 60 days of the election.

A ruling in favor of Wisconsin Right to Life would be good news for those, including this page, who believe that Americans have a constitutional right to petition and criticize public officials. It would also uphold the traditional 1st Amendment principle that, in ambiguous situations, courts should err on the side of free speech.

But we sound one note of caution. Chief Justice John G. Roberts Jr., who has celebrated the virtues of precedent and consensus, needs to make sure that the court protects reasonable provisions of McCain-Feingold even as it strikes those that compromise free speech. In particular, it’s important that the court preserve reasonable limits on the size of contributions to candidates and parties. In previous decisions, the court sensibly has accorded less 1st Amendment protection to contributions (which pay for the candidate’s message) than to independent expenditures (in which an individual defines his own message).

Four current justices -- Stephen G. Breyer, John Paul Stevens, Ruth Bader Ginsburg and David H. Souter -- were in the majority in 2003 when the court upheld most of the McCain-Feingold law. (The fifth member of the majority, Sandra Day O’Connor, has been replaced by Samuel A. Alito Jr.) Three current justices -- Antonin Scalia, Clarence Thomas and Anthony M. Kennedy -- dissented. Scalia called the decision a “sad day for the freedom of speech.”


It seems likely that Roberts will join the majority in ruling that McCain-Feingold’s ban on “phony issue ads” was used improperly against the Wisconsin ad. Such a salutary outcome would clear the way for a Federal Election Commission ruling making it clear that similar ads are allowed, even if they mention a candidate and attempt to influence an election.

The question is whether the court’s newest members will stop there. They will, if they heed Roberts’ advice at his Senate confirmation hearings that judges should be “modest” and “decide the cases before them.”