The Volokh Conspiracy - Nothing New Under the Sun:

Charles E. Pierce was prosecuted for violating section 12.05 of the Wisconsin Corrupt Practices Act, which bars spending aimed at "influenc[ing], directly or indirectly, voting at any election or primary," except (1) by a candidate or a candidate's campaign committee, (2) by a party committee, or (3) by people "residing with the county where such expenses are incurred" who are spending the money "for rent of hall or other rooms, for hiring speakers, for printing, for postage, for telegraphing or telephoning, for advertising, for distributing printed matter, for clerical assistance and for hotel and traveling expenses." (There was also an exception for speakers' paying their own traveling expenses.) The Wisconsin Supreme Court struck this down as a violation of the freedom of speech.

The interesting thing is that this happened in 1916, in State v. Pierce, 158 N.W. 696 — and the arguments about this sort of speech restriction were in many ways quite similar to what we hear today. Here are some excerpts, first from Chief Justice Winslow's majority opinion:

Freedom of speech and freedom of the press have always been supposed to be the very corner stones of Anglo-Saxon democratic institutions.... The Constitution of Wisconsin declares (section 3, art. 1): "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press" [and Section 12.05 violates this provision] ....

Under [the] terms [of section 12.05] a man, or body of men, who are honestly convinced of the necessity of a change of policy in the state government, commit a crime if they spend any money in another county than their own in bringing their views to the notice of the voters of such other county. There is really but one exception to this, and that is that a public speaker may pay his traveling expenses in going to and from his own meetings, but even he may not hire a hall in which to make his speech. If this be not an abridgment of freedom of speech, it would be difficult to imagine what would be.

Under such a law no pioneer in any reform which depends for its success on a change in the law could leave his own county and communicate his sentiments at his own expense to his fellow citizens of other counties without committing a crime. Under such laws no great propaganda for better laws and better political conditions which has not been formally taken up by a political party can ever be carried on, and the reformer whose eye kindles with the dawning light of a better day must be content to confine his personal activities to the inhabitants of his own small bailiwick.

Almost every forward step in political and governmental affairs comes as the result of long agitation and discussion in the press, on the rostrum, and in the open forum of personal contact. This agitation and discussion often goes on for years before the idea is formally indorsed by any party. Yet it will generally be the case that during this period there will be individual candidates in one party or the other, or both, who favor the new thought. Now this law means that in such a situation no man, or group of men, can do a stroke of political work involving expense in any other county than their own, however legitimate and praiseworthy be the means which are used. No political committee will take up the work, for the very good reason that the party organization has not indorsed the doctrine.

There are times also when devoted citizens firmly believe that no organized political party stands for the right or deserves support, and that an independent candidacy is necessary. Can it be that under such circumstances these citizens can be wholly deprived of the right to go to any part of the state at their own expense, collect information on the subject, and endeavor by word of mouth or by the distribution of printed matter to put the issue as they see it before such fellow voters who are not residents of their own county? ...

We are by no means unmindful of the high and admirable purposes which inspired the authors of the Corrupt Practices Act. There is no member of this bench who is not in the fullest sympathy with any legislation which will tend to reduce to an absolute minimum the danger of corruption and coercion during political campaigns, but when such a law goes beyond regulation, and absolutely prohibits that which the Constitution expressly protects, the court can do nothing but say so....

Now here's Justice Siebecker's dissent, joined by Justice Kerwin:

The terms of section 12.05 are not, in my opinion, an invalid restraint or abridgment of these rights [to speak and publish] in the light of an urgent necessity to regulate the mischievous expenditures of money in elections. It is important to observe that the statute does not regulate the expenditures of money by persons in their political activities, or in promulgating their sentiments and convictions on any subject or any policy of government disassociated from and independent of any activity of influencing voters in an election, and also that no person is precluded from participating as a speaker in political campaigning in elections and speaking his sentiments freely, except that when a person so participates as a speaker in an election campaign to influence voters ... [he must] carry on his work at the expense of a party committee, a personal campaign committee, or a local county agency ....

The act also permits the widest freedom to all persons and groups of persons to promote and agitate for any cause by the press, and print through the mails at the place of their residence, and thence throughout the state. This shows that the freedom of speech and press is wholly unaffected by the provisions of this act, and is as unconfined as ever as to all matters other than campaigning for votes in an election, and in such campaigns all persons have the unrestricted liberty to speak throughout the state as they please and employ the mails of their counties, and thence throughout the state to publish their sentiments and expound their doctrines, policies, and reforms concerning any cause. [Note the echo of the modern "media exception." -EV] A very broad and unrestricted field for activity is thus available to every publicist, speaker, reformer, or any body of men honestly concerned with the necessity of bringing their views to the notice of votters of the state....

Reasonable regulations to guard the ballot are necessary to prevent unbridled license in the exercise of these fundamental rights [of speech and press] in order to maintain a government of laws.... [C]orrupt practices acts are enacted to remedy these evils, and the right of free speech and press does not imply that its inviolability is such that it can do no wrong. Indulgence of it is always conditioned on the proposition that its exercise does not subvert the government, and "is limited, but not abridged, by laws passed in the exercise of police power for the protection of the moral health of the community."

The legislative provisions of section 12.05 are directed at the evils in elections, and seek to correct them by limiting contributions and expenditures of money, and by requiring all persons engaged in political campaigning to carry on their activities through the prescribed agencies of committees and local groups. To accomplish these purposes the Legislature found it necessary and expedient to subject the citizen to these methods of campaigning, which in some measure operate to confine the rights of the freedom of speech and press in elections to the prescribed manner of exercising them.

[The free speech/free press clause of the state constitution], in common with all other provisions, is subordinate to the great leading purpose for which constitutional governments have been established, namely, to form a more perfect government and to promote the general welfare, and, like all fundamental rights, requires regulation to prevent these rights from being abused, which is the law of liberty. This doctrine is forcibly and clearly expressed in the words: "Power to determine such questions so as to bind all must exist somewhere, else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of many, provided only they are permitted to do as they please. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the state and to determine primarily what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety."

Where the abuse of the purity of elections begins, through whatever means it be accomplished, liberty of speech and press must end, for without such a check this right could be made a most effective instrument of mischief. The Corrupt Practices Act was framed to guard against such mischiefs, and the Legislature found its provisions appropriate and necessary to check existing evils, which threatened to subvert the rights and privileges, of the elective franchise. In the light of the public evils and the pernicious influence on voters in elections which flow from the lavish expenditure of money, there is much justice and sound public policy in the legislative restrictions imposed on persons by the Corrupt Practices Act.

No doubt exertion of the legislative power in this regard has its difficulties and embarrassments in order to preserve and protect the elective franchise from abuse and the rights guaranteed by liberty of speech and press.... [But the law is] within the discretion which obviously animated the legislators in their vigilance to correct existing mischiefs that threaten to subvert the purity of elections, and ... its provisions do not operate to unreasonably restrain or abridge the liberty of speech and press in the light of eradicating the evils that have grown up in the political field from lavish expenditures of money which menace the freedom and purity of the ballot....

	[Eugene Volokh, May 6, 2008 at 4:50am] Trackbacks Nothing New Under the Sun: Charles E. Pierce was prosecuted for violating section 12.05 of the Wisconsin Corrupt Practices Act, which bars spending aimed at "influenc[ing], directly or indirectly, voting at any election or primary," except (1) by a candidate or a candidate's campaign committee, (2) by a party committee, or (3) by people "residing with the county where such expenses are incurred" who are spending the money "for rent of hall or other rooms, for hiring speakers, for printing, for postage, for telegraphing or telephoning, for advertising, for distributing printed matter, for clerical assistance and for hotel and traveling expenses." (There was also an exception for speakers' paying their own traveling expenses.) The Wisconsin Supreme Court struck this down as a violation of the freedom of speech. The interesting thing is that this happened in 1916, in State v. Pierce, 158 N.W. 696 — and the arguments about this sort of speech restriction were in many ways quite similar to what we hear today. Here are some excerpts, first from Chief Justice Winslow's majority opinion: Freedom of speech and freedom of the press have always been supposed to be the very corner stones of Anglo-Saxon democratic institutions.... The Constitution of Wisconsin declares (section 3, art. 1): "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press" [and Section 12.05 violates this provision] .... Under [the] terms [of section 12.05] a man, or body of men, who are honestly convinced of the necessity of a change of policy in the state government, commit a crime if they spend any money in another county than their own in bringing their views to the notice of the voters of such other county. There is really but one exception to this, and that is that a public speaker may pay his traveling expenses in going to and from his own meetings, but even he may not hire a hall in which to make his speech. If this be not an abridgment of freedom of speech, it would be difficult to imagine what would be. Under such a law no pioneer in any reform which depends for its success on a change in the law could leave his own county and communicate his sentiments at his own expense to his fellow citizens of other counties without committing a crime. Under such laws no great propaganda for better laws and better political conditions which has not been formally taken up by a political party can ever be carried on, and the reformer whose eye kindles with the dawning light of a better day must be content to confine his personal activities to the inhabitants of his own small bailiwick. Almost every forward step in political and governmental affairs comes as the result of long agitation and discussion in the press, on the rostrum, and in the open forum of personal contact. This agitation and discussion often goes on for years before the idea is formally indorsed by any party. Yet it will generally be the case that during this period there will be individual candidates in one party or the other, or both, who favor the new thought. Now this law means that in such a situation no man, or group of men, can do a stroke of political work involving expense in any other county than their own, however legitimate and praiseworthy be the means which are used. No political committee will take up the work, for the very good reason that the party organization has not indorsed the doctrine. There are times also when devoted citizens firmly believe that no organized political party stands for the right or deserves support, and that an independent candidacy is necessary. Can it be that under such circumstances these citizens can be wholly deprived of the right to go to any part of the state at their own expense, collect information on the subject, and endeavor by word of mouth or by the distribution of printed matter to put the issue as they see it before such fellow voters who are not residents of their own county? ... We are by no means unmindful of the high and admirable purposes which inspired the authors of the Corrupt Practices Act. There is no member of this bench who is not in the fullest sympathy with any legislation which will tend to reduce to an absolute minimum the danger of corruption and coercion during political campaigns, but when such a law goes beyond regulation, and absolutely prohibits that which the Constitution expressly protects, the court can do nothing but say so.... Now here's Justice Siebecker's dissent, joined by Justice Kerwin: The terms of section 12.05 are not, in my opinion, an invalid restraint or abridgment of these rights [to speak and publish] in the light of an urgent necessity to regulate the mischievous expenditures of money in elections. It is important to observe that the statute does not regulate the expenditures of money by persons in their political activities, or in promulgating their sentiments and convictions on any subject or any policy of government disassociated from and independent of any activity of influencing voters in an election, and also that no person is precluded from participating as a speaker in political campaigning in elections and speaking his sentiments freely, except that when a person so participates as a speaker in an election campaign to influence voters ... [he must] carry on his work at the expense of a party committee, a personal campaign committee, or a local county agency .... The act also permits the widest freedom to all persons and groups of persons to promote and agitate for any cause by the press, and print through the mails at the place of their residence, and thence throughout the state. This shows that the freedom of speech and press is wholly unaffected by the provisions of this act, and is as unconfined as ever as to all matters other than campaigning for votes in an election, and in such campaigns all persons have the unrestricted liberty to speak throughout the state as they please and employ the mails of their counties, and thence throughout the state to publish their sentiments and expound their doctrines, policies, and reforms concerning any cause. [Note the echo of the modern "media exception." -EV] A very broad and unrestricted field for activity is thus available to every publicist, speaker, reformer, or any body of men honestly concerned with the necessity of bringing their views to the notice of votters of the state.... Reasonable regulations to guard the ballot are necessary to prevent unbridled license in the exercise of these fundamental rights [of speech and press] in order to maintain a government of laws.... [C]orrupt practices acts are enacted to remedy these evils, and the right of free speech and press does not imply that its inviolability is such that it can do no wrong. Indulgence of it is always conditioned on the proposition that its exercise does not subvert the government, and "is limited, but not abridged, by laws passed in the exercise of police power for the protection of the moral health of the community." The legislative provisions of section 12.05 are directed at the evils in elections, and seek to correct them by limiting contributions and expenditures of money, and by requiring all persons engaged in political campaigning to carry on their activities through the prescribed agencies of committees and local groups. To accomplish these purposes the Legislature found it necessary and expedient to subject the citizen to these methods of campaigning, which in some measure operate to confine the rights of the freedom of speech and press in elections to the prescribed manner of exercising them. [The free speech/free press clause of the state constitution], in common with all other provisions, is subordinate to the great leading purpose for which constitutional governments have been established, namely, to form a more perfect government and to promote the general welfare, and, like all fundamental rights, requires regulation to prevent these rights from being abused, which is the law of liberty. This doctrine is forcibly and clearly expressed in the words: "Power to determine such questions so as to bind all must exist somewhere, else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of many, provided only they are permitted to do as they please. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the state and to determine primarily what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety." Where the abuse of the purity of elections begins, through whatever means it be accomplished, liberty of speech and press must end, for without such a check this right could be made a most effective instrument of mischief. The Corrupt Practices Act was framed to guard against such mischiefs, and the Legislature found its provisions appropriate and necessary to check existing evils, which threatened to subvert the rights and privileges, of the elective franchise. In the light of the public evils and the pernicious influence on voters in elections which flow from the lavish expenditure of money, there is much justice and sound public policy in the legislative restrictions imposed on persons by the Corrupt Practices Act. No doubt exertion of the legislative power in this regard has its difficulties and embarrassments in order to preserve and protect the elective franchise from abuse and the rights guaranteed by liberty of speech and press.... [But the law is] within the discretion which obviously animated the legislators in their vigilance to correct existing mischiefs that threaten to subvert the purity of elections, and ... its provisions do not operate to unreasonably restrain or abridge the liberty of speech and press in the light of eradicating the evils that have grown up in the political field from lavish expenditures of money which menace the freedom and purity of the ballot....