You Can't Touch This: A Lesson to Legislators on Political Speech

B. Chad Bungard

Volume 1 - Spring 2003


     "Free speech is the whole thing, the whole ball game. Free speech is life itself." Yet, in America, as Supreme Court Justice Clarence Thomas eloquently argued, we now face a perverse anomaly in First Amendment jurisprudence. According to the Supreme Court, the First Amendment protects the Ku Klux Klan leader who advocates lawlessness, the protester who sews "f*** the [d]raft" on his jacket, the pornographer who transmits nudity via the Internet, the business that distributes virtual child sex acts, and a dancer who wants to perform nude in a bar-room type setting. And now, as Congress has successfully passed campaign finance legislation banning political speech, are we to believe that the First Amendment does not protect the speech of political associations during an election campaign? Such a notion should be offensive to every American. As noted by campaign finance expert James Bopp, Jr., "[t]he First Amendment was adopted not to protect nude dancing or virtual child pornography, but was intended to protect political speech." The Supreme Court declared that the "First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office."
     This article focuses on the constitutional sanctity of issue advocacy communications and why legislation that regulates such speech is a "direct violation of the people's right to free political speech, the right guaranteed to us by the First Amendment of the Bill of Rights in the Constitution of the United States of America." Part I discusses the constitutionality of the newly passed federal campaign finance law, the Bipartisan Campaign Reform Act of 2002 ("BCRA"), in regards to its prohibition of "electioneering communications," which is broadly defined to encompass issue advocacy communications. Part II focuses on North Carolina's three failed attempts to regulate issue advocacy communications. This article serves as a lesson to legislators: issue advocacy communications are constitutionally sacrosanct and the regulation of such is unconstitutional.
Cite as: 1 First Amend. L. Rev. 13 (2003)
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