Subject: Re: [EL] Electionlawblog news and commentary 3/26/11
From: Steve Hoersting
Date: 3/26/2011, 2:17 PM
To: Rick Hasen
CC: Election Law <election-law@mailman.lls.edu>

I cannot believe that Charles Fried wrote this.  Perhaps I have paid insufficient attention to his earlier writings.

Informed by Progressives Brandeis and Holmes (see the op-ed), Charles Fried, to my dismay, sees only a marketplace of ideas... that governments in Arizona and elsewhere may now nationalize. 

This is not what the First Amendment provides.

Some may be scratching their heads.  The Holmes/Brandeis market-place theory had, they thought, always stood for a free marketplace in ideas.  Not so....  And with this op-ed Fried starkly (though impliedly) exposes the latent danger in the marketplace theory.

One hundred years on, we now see how Holmes's marketplace theory -- which replaced the individual's right to speak with the public's right to hear; or with "our" need to further the "truth" that furthers democracy -- will swallow speech rights, not protect them. 

I am not surprised that Fried sees the sweeping power the state can wield when we scratch beneath the patina of Holmes's marketplace theory.  My surprise is that Fried comes down on the wrong side of it.

Steve Hoersting

On Sat, Mar 26, 2011 at 12:46 PM, Rick Hasen <hasenr@gmail.com> wrote:

March 26, 2011

"Free Speech Worth Paying For"

Charles Fried and Cliff Sloan have written this McComish-related oped in the NY Times.

Posted by Rick Hasen at 09:39 AM

March 25, 2011

Lyle Denniston of SCOTUSBlog offers Comprehensive Preview of McComish v. Bennett

You can read it at this link.

ALSO, Paul Sherman of the Institute for Justice (representing challengers in the case) has written this blog post responding to my Slate commentary on the case.

Posted by Rick Hasen at 06:10 PM

"Influx of Corporate Political Cash Followed Pivotal Federal Court Decision"

New report out from the Center for Responsive Politics.

Posted by Rick Hasen at 03:22 PM

Oh Yes It Was Clear!

Republican FEC Commissioners respond in the Schweikert postcard disclaimer case. My earlier coverage is here and here.

Posted by Rick Hasen at 01:47 PM

"Regulating the Supreme Court Justices' Ethics: a Response to Russell Wheeler"

Amanda Frost has written this interesting piece for the ACSBlog.

Posted by Rick Hasen at 01:23 PM

"EAC faces tough questions on Capitol Hill; Budget, performance get scrutiny in House Elections Subcommittee"

That's the lead story in this week's Electionline Weekly.

Posted by Rick Hasen at 11:49 AM

"FEC still hasn't issued new campaign spending rules"

The Washington Post offers this report.

Posted by Rick Hasen at 11:18 AM

--
Rick Hasen
Visiting Professor
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
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rhasen@law.uci.edu

William H. Hannon Distinguished Professor of Law
Loyola Law School
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org


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Steve Hoersting
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