Header Graphic




Under Stalin, any known criticism of the government, its leadership, socialism, or the communist party, resulted in the gulag or even death. Now that the Soviet Union has shrunken into merely Russia, and that a supposedly "free-ish" country has emerged, things are supposed to be different.

A Virginia-based non-profit organization, the Law Enforcement Alliance of America, has been running television ads suggesting that a Democrat candidate for the Pennsylvania Supreme Court was not hard enough on criminals, particularly compared to her Republican opponent.

Apparently, the ads hit home so the Democrats, rather than countering the charges with a rebuttal, responded in the all-American way: they sued. The Pennsylvania Democrat Party Chairwoman and a state senator/county chairman filed a lawsuit alleging that the ads’ sponsor had failed to meet registration and disclosure requirements for political committees, improperly accepted corporate contributions, and improperly spent money to influence the election. "This type of characterization of your opponent on TV is a very bad way of campaigning," said the senator, whose oath of office requires him to uphold the Constitution of the United States.

The Democrats’ allegations were enough to get a preliminary injunction out of a Common Pleas Court judge, who barred the commercials from running unless their sponsor complied with the state Election Code. Apparently, that was acceptable to the Pennsylvania ACLU, whose spokesman said the ruling did not violate the First Amendment.

He is mistaken.

Even conceding for the sake of argument, as the plaintiffs’ lawyer argued, that the ads’ sponsors had violated the Election Code (for which there are independent penalties), the injunction’s prohibition flatly violates the First Amendment because it is a prior — and thus unconstitutional — restraint on speech. It is one thing to punish violations of law stemming from speech. It is quite another to silence speakers in advance, as the Department of Justice found out in the Pentagon Papers Case.

There, the United States Government tried to enjoin The New York Times and the Washington Post from publishing the contents of a secret classified study — History of U.S. Decision-Making Process on Viet Nam Policy — that they had obtained.

The question for the Court was not whether the study had been wrongly (even illegally) obtained (it had), whether the newspapers could be penalized for having so obtained it (they could), or whether revealing the study would be detrimental to the Government (it would). The sole question was whether the two newspapers could be enjoined from publication — and the Supreme Court answered that question with a resounding "No": "Any system of prior restraints of expression comes to this Court," it said, "bearing a heavy presumption against its constitutional validity. * * * The Government thus carries a heavy burden of showing justification for the imposition of such a restraint."

In the Pentagon Papers Case the Government tried to carry that burden by arguing that publishing the Pentagon Papers "would pose a grave and immediate danger to the security of the United States." However, even though the Government may have been correct, that risk was held not to be sufficient cause to justify prior restraint of the speech and press rights of the two newspapers. Indeed, Justice White, joined by Justice Stewart, said this: "I do not say that in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations. Nor, after examining the materials the Government characterizes as the most sensitive and destructive, can I deny that revelation of these documents will do substantial damage to public interests. Indeed, I am confident that their disclosure will have that result."