[EL] "Conservative Echo Chamber in WI John Doe Case"

[Steve Klein]

Brendan Fischer writes:


> The Court also cited a sensational National Review article on the John Doe
> "raids" by David French, the past president of the Foundation on Individual
> Rights in Education (FIRE), which received more than $1.3 million from the
> Bradley Foundation since 1999.


We can certainly agree that the debate about "money is speech," or, as I
like to say, "money is an integral tool for speech" will continue in
earnest. I'm admittedly taken aback, though, that the right wing money
plague extends so far as to guilt by association with FIRE, an organization
fighting inquisitors who usually argue "your speech isn't speech."

Fischer's organization, Center for Media and Democracy, has received
funding from the Democracy Alliance, a private gathering of wealthy
progressives that, among other things, believes overturning *Citizens
United* is a cornerstone of progressive progress. What does this do to the
merits of Brendan's arguments? Not a thing, in my opinion, but I say the
same for everyone in every nonprofit getting money from rich people.
(Representatives from effective charities solely receiving money from the
poor and middle class could not be with us today because they are figments
of your imagination.)

I think the merits of yesterday's opinion are sound, and wish the echo
chamber focused more on them and not the facts of the investigation. The
vague and overbroad application of Wisconsin's law forecloses *any *kind of
investigation no matter the tactics used by the prosecutors. Unfortunately,
communicating the merits of free speech is a difficult task. The proof is
in the pudding: the Republican platform still, as of the last convention
<http://wyliberty.org/feature/on-second-look-free-speech-could-use-a-little-more-love/>,
contains support for an anti-flag burning amendment. (Perhaps, going back
to my opening with all due snark, here some could find common ground with
Republicans behind this: "FIRE isn't speech"?) Nearly as many people poll
in favor of banning "hate speech" as favor the ever-nebulous "campaign
finance reform." It is nothing short of amazing that the First Amendment
endures.

As to the merits of the case, I believe paragraphs 55-67 provide sound
analysis. I think the court, agreeing with the Seventh Circuit panel
in *Barland
II*, is right to call the law "labyrinthian." In my opinion, any law
regulating political engagement cannot include definitions like "Acts which
are for 'political purposes' include *but are not limited to*..." (emphasis
added). That tells political participants to steer widely from certain
political activities, a First Amendment no-no. It tells prosecutors "these
are regulated, but also other things; you'll know them when you see them."
Bigger First Amendment no-no. (I will avoid here the bigger discussion of
the burdens of disclosure versus different types of regulation, but I
believe the "coordination" at issue here amounted to strict limits since
coordinated communications are contributions, which may be and are limited
under Wisconsin law.)

To put this into perspective, reword the law to apply to a less protected
area of expression. "Acts which are *obscene *include *but are not limited
to*..." Larry Flynt's attorneys would have field day with that, and
rightfully so.

Campaign finance reform centers a lot on divining intent. Look no further
than this case: agree with Scott Walker's campaign on an issue, advocate
for that issue and a group is actually a shadow campaign. (Like the tactics
of the investigation, the facts of the groups' activities at issue in this
case are irrelevant, too: the law cannot be allowed to capture such a broad
swath of political activity, whether for punishment or even investigation.
And that's what Wisconsin law permitted.) It is apparently impossible that
groups large and small just might actually care about the issues. Adopting,
for a moment, the power to discern what people's speech* really means*, I
fear that the trouble for reformers is that specific law everyone can
understand would invite, rather than dissuade, engagement.

Have a great weekend, all. I know I need one.

-- 
Steve Klein
Attorney*
Pillar of Law Institute
www.pillaroflaw.org

**Licensed to practice law in Illinois and Michigan*
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