Special Kinds of Speech

By Megan McArdle

I have to admit, I'm kind of shocked by the number of people willing to advance the theory that political speech done by trade associations is not real political speech, or that it's okay to use the threat of regulatory punishment to shut down political speech just as long as you don't actually seize the printing presses.

This simply doesn't fit within either of the main free speech exemptions we've carved out for corporations:  regulating fraud in commercial speech, and regulating cash in politics.  This is pretty clear-cut political speech, and there is not question of undue financial influence in politics, or the use of the regulated airwaves.  Nonetheless, the Democrats are making a very clear-cut effort to shut this political speech down using the power of the state.  I thought that liberals and libertarians were pretty much on the same page that sanctioning people for their political speech was not okay, but apparently not--or at least, not in all cases.

Is it legitimate for the administration to ask for support in exchange for a good deal on legislation?  It's not something I'm happy about, but not something that tickles my First Amendment alarm either. 

But it is not okay for the administration to say, "If you publish a report saying that our plan will make premiums go up, we will use our regulatory authority in an entirely different matter to punish you."  I don't see how that's much different from saying, "If journalists criticize the administration, we will use our commercial speech authority to undercut your ad revenue".  Enterprises, even commercial enterprises, have a right to put forth political arguments.

This article available online at:

http://www.theatlantic.com/business/archive/2009/10/special-kinds-of-speech/28636/