Freedom of speech and the press took two steps forward and one back Tuesday. The good news came from Wisconsin, where U.S. District Court Judge Rudolph Randa put an end to the infamous "John Doe" investigation unleashed last year by vengeful local Democrats against political activist Eric O'Keefe, the Wisconsin chapter of Club for Growth and 28 other conservative political groups. Led by Milwaukee County Attorney John Chisholm, Special Prosecutor Francis Schmitz and three others, the defendants used police-state tactics to gather evidence of alleged campaign finance crimes and slapped a gag order on O'Keefe and the other targets to prevent them from telling anybody but their lawyers what was happening.
The “crime” O'Keefe and the others were alleged to have committed was taking positions shared by Gov. Scott Walker during his 2012 recall election campaign and creating issue ads advocating those positions to voters. The Democrats claimed that constituted illegal campaign coordination under Wisconsin law.
In a ringing 26-page opinion, Randa disagreed, saying the Democrats were improperly “rendering the plaintiffs a subcommittee of the Friends of Scott Walker and requiring that money spent on such speech be reported as an in-kind campaign contribution. This interpretation is simply wrong.” Randa added that had the Democrats succeeded in the case, it would mean “that any individual or group engaging in any kind of coordination with a candidate or campaign would risk forfeiting their right to engage in political speech.” Randa’s opinion is a significant victory for freedom of speech and political expression. Later in the day of Randa's decision, a federal appeals court stayed his order pending further deliberation.
Unfortunately, the steps taken in the nation's capital on the same day were in the opposite direction. The Washington Examiner's Paul Bedard reported Federal Election Commission Chairman Lee Goodman's warning that “there are impulses in the government every day to second-guess and look into the editorial decisions of conservative publishers.” There have already been several proposals before the FEC to regulate conservative media outlets, Goodman said. The proposals were defeated, but only because the FEC is evenly split between Republicans and Democrats. The Democrats voted for the proposals.
Goodman diplomatically observed that he has “seen storm clouds that the second you start to regulate them, there is at least the possibility or indeed proclivity for selective enforcement, so we need to keep the media free and the Internet free.” Using government power to gag political opponents would be the inevitable result of an FEC move to regulate conservative media. Such regulation would likely be justified by proponents as being “in the public interest.” That's why the regulation would quickly spread from the FEC to other federal agencies as politicians and bureaucrats across the government suddenly discover that criticism of their programs and policies “harms the public interest.”
The temptation to abuse such power would be irresistible to members of both political parties, but the present reality is that Democrats look like the party most likely to succumb. Sooner or later, Democratic leaders must decide if they are friends or enemies of the First Amendment.