Despite Flaws, Elections are Festival of Free Speech



By Gene Policinski
First Amendment Center vice president/executive director

The 2008 presidential debate season is over, but one undebatable observation needs airing.

Americans once again can celebrate a primary and general election season of unique and open exchanges of views among candidates and citizens alike, despite a few noteworthy potholes in the First Amendment highway.

Consider for a moment that not a single member of the administration now in power had a controlling hand in planning, conducting or censoring the four national exchanges — the three presidential debates and one vice presidential meeting. Of how many nations around the planet could the same be said?

Democratic and Republican partisans and independent observers have made charges, questioned candidates’ character and attacked a universe of proposals — and no one has “disappeared” or is under house arrest or in prison as a result.

Third-party candidates, though not included in the national television debates, continue to appear on many ballots and make election-year rounds ranging from personal appearances to interviews on National Public Radio and in other news outlets.

The Web has given free and accessible voice to citizens, experts, individual Web sites and well-funded online campaigns alike — all ours for the taking or rejecting. Newspaper and television journalists may well have complaints about direct access to nominees, but that’s campaign strategy, not government regulation.

Still, the 2008 election process has not been without its free-speech challenges and questions:

  • In both Denver and St. Paul, during the Democratic and Republican conventions, protesters and some journalists were rounded up by authorities in overreaction to or anticipation of disruptions (and some would say negative voices spoiling neat convention plans). Expect many of those arrests and detentions to end in taxpayer-funded financial settlements rather than convictions, as has been distressingly common in recent years.
  • Officials initially decided, though they later backed down, that prohibitions against “campaigning” by state employees ought to extend to silencing student voices in Illinois or Texas, or at least banning candidate signs in dorm windows.
  • Pastors in more than 20 states on one Sunday in September made specific recommendations about political candidates, challenging a 1954 tax code provision that says that certain nonprofit groups, including churches, can lose tax-exempt status for such from-the-pulpit candidate endorsements. The pastors’ goal is to force a lawsuit that might overturn the tax provision.
  • A political watchdog group filed a complaint Oct. 10 asking the Federal Election Commission to investigate both a pro-Democratic group and a pro-Republican group for what it claims were improper television campaign commercials. The move is the latest in the multi-year dispute over balancing free-speech rights with campaign-finance regulations.

But despite those legal and ethical flaps, for most Americans the season has been one in which we could get as much information, from as many sources, as we could want.

There also were new efforts by both mainstream and new-media news organizations to fact-check many candidate claims. Both Sens. Obama and McCain have used the Web to advance ideas, counter allegations raised by private groups and, particularly for the Obama campaign, to exploit the reach and immediacy of e-mail and Web postings to keep in contact with supporters.

One bit of free speech was missing this year, though. A recent Los Angeles Times article noted that 150 years ago in the Lincoln-Douglas congressional debates, both candidates not only went at each other directly for hours, but often in the seven meetings also would respond directly, and sometimes cuttingly, to catcalls from the audience.

By those standards, Joe the Plumber — and the rest of us — fared pretty well this time around.

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected].