A judicial outrage
With little notice last week, Nevada District Judge Patrick Flanagan told a political candidate what he could not say, and got away with it. No civil libertarian, no editorialist, no first amendment advocate spoke or wrote to object.
Gary Schmidt, a Republican candidate for the Nevada Senate, put a campaign spot on the air that said his opponent, fellow Republican Ben Kieckhefer, had supported Democrat Harry Reid’s reelection in 2010. Kieckhefer asked Flanagan to order Schmidt to take the spot off the air. Flanagan heard the case, concluded that Schmidt’s charge was false, and issued the requested order.
The law in this case could not be more clear. Political candidates can say anything they want, true or false. It’s between them and the voters, and government has no authority to get in the way. The voters, not government, judge whether a candidate is telling the truth. Judges have no authority to judge accuracy, taste, intent or anything else a candidate wants to tell the voters.
In one famous case, Georgia bigot J.B. Stoner, who considered Hitler too soft and demonized Jews, made a despicable television commercial in a 1972 run for office that attacked African Americans using the term “nigger.” The Federal Communications Commission, acting on the case law, ordered Georgia stations to broadcast the spots exactly as Stoner made them.
In Monitor Patriot Co. vs. Roy (1971), the U.S. Supreme Court said, “And if it be conceded that the First Amendment was ’fashioned to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people,’ [a quote from the court’s previous ruling in Roth v. United States], then it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.”
And what’s with Kieckhefer, who calls himself a conservative, running to a judge for a little judicial activism to bail him out instead of standing up to Schmidt and making his case to the voters and letting them decide the truth? Kieckhefer calls himself a first amendment advocate, which begs the question of why he censored his opponent.
Under the law, television and radio stations can refuse to accept political advertising—all political advertising. But if they do accept it, they cannot cherry-pick among candidate commercials, running some and refusing others. Nor can they change those ads.
And local municipal or state court judges have no authority to overrule federal law. Put them in charge of judging content and they’ll be taking a lot of candidate commercials off the air. Should the voters decide how to react to Dukakis in a tank or a little girl plucking a daisy, or should a Reno judge shield them from the sights?
On top of all that, there is a second legal impediment to Flanagan’s order. This is the United States. Prior restraint of free expression has been held by the U.S. Supreme Court to be illegal except in an urgent national emergency. Ben Kieckhefer being a weenie doesn’t qualify as urgent.
Whether Gary Schmidt was telling the truth or not was for the voters to decide. Instead, Flanagan intervened with an outrageous in-kind contribution to the Kieckhefer campaign that is miles beyond his authority.