Supreme Court Justice Antonin Scalia is never short of words. In concurring with the result of today’s 5-4 decision in Federal Election Commission v. Wisconsin Right To Life, Scalia started his opinion this way:
A Moroccan cartoonist once defended his criticism of the Moroccan monarch (lèse majesté being a serious crime in Morocco) as follows: ??I?m not a revolutionary, I?m just defending freedom of speech. . . . I never said we had to change the king?no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime???1 Well, in the United States (making due allowance for the fact that we have elected representatives instead of a king) it is a crime, at least if the speaker is a union or a corporation (including not-for-profit public-interest corporations) and if the representative is identified by name within a certain period before a primary or congressional election in which he is running.
In a footnote, he questions the notion that the Supreme Court should wait for further cases to determine whether federal limitations on campaign speech have a chilling effect:
The wait-and-see approach makes no sense and finds no support in our cases. How will we know that would-be speakers have been chilled and have not spoken? If a tree does not fall in the forest, can we hear the sound it would have made had it fallen? Our normal practice is to assess ex ante the risk that a standard will have an impermissible chilling effect on First Amendment protected speech.
Scalia and Justices Clarence Thomas and Anthony Kennedy would have gone further than Chief Justice John Roberts and Justice Samuel Alito in protecting political speech.
Daren Bakst has comments here.
