The Supreme Court issued its opinion in Doe v. Reed today, holding that compelled disclosure of petition signatures must be analyzed under the First Amendment, but does not necessarily violate the First Amendment.  The Court remanded the case for further consideration.  The decision is 8-1 with Justice Thomas dissenting.  Several Justices filed concurring opinions.  We will have analysis of the opinion shortly.  The opinion is available here.

Imagine if every time The New York Times published an editorial about politics, the government cut a check to the New York Post, the Daily News, and The Wall Street Journal so they could respond.  The Times would rightly condemn this policy for discouraging that paper from exercising its First Amendment rights.

Nonetheless, the Times lauds Arizona’s so-called “Clean Elections” system, which does essentially the same thing to groups of citizens that merely want to speak about politics.  The Times also decries the U.S. Supreme Court’s decision to temporarily halt that system while the plaintiffs, represented by the Institute for Justice and the Goldwater Institute, ask the Court to review a decision of the Ninth U.S. Circuit Court of Appeals upholding that system.

Under Arizona’s law, when people spend money to advocate for a political candidate, the state gives a check for an equal amount of money to each of that candidate’s government-funded opponents.  If there are three government-funded opponents lined up against a candidate who raises money through voluntary contributions—that’s three checks sent to the traditional candidate’s opponents.  This system violates the First Amendment—no less than the hypothetical newspaper law described above would—and the Supreme Court was right to temporarily freeze it.  The Court should follow up by taking the case for consideration next term and striking down Arizona’s bad “Clean Elections” law for good.

Welcome to Congress Shall Make No Law, a complement to the Institute for Justice’s fight, both in courts of law and the court of public opinion, to defend the freedom of speech from government encroachments—particularly so-called “campaign finance” laws.

Freedom of speech is one of the most important rights Americans enjoy, yet one of the least understood and most neglected. Like the air that we breathe, speech is so integral to our lives and so ubiquitous—think twitter, Facebook, blogs, cell phones, and email and much more—that most Americans take it for granted.

Yet we ignore the right to free speech at our peril. Indeed, it was not until 1931 that the Supreme Court first struck down a statute under the First Amendment, and the relatively vigorous legal protections our speech enjoys today have only existed for about 50 years.

When the U.S. Supreme Court stated in Citizens United that the FEC’s “business is to censor,” Justice Stevens protested in his dissent that this characterization was “nonsense” and “deeply disconcerting.” According to Justice Stevens, “[t]he FEC’s business is to administer and enforce the campaign finance laws.”

So who’s right? Well, both.

The FEC’s job is to enforce the campaign finance laws, but to do that, it has to censor speech. That is true whether or not the FEC is composed of a bunch of well-meaning bureaucrats who use smiley faces instead of “censored” stamps.

The NRA is rightly catching a lot of flack for dropping its opposition to the DISCLOSE Act on the condition that it is shielded from the law’s provisions. But, in truth, it was simply responding to the incentives provided by a political system in which it is accepted that the government can limit speech with so-called "campaign finance" laws. Limiting the overall amount of speech puts the government in position to ration speech. The result is a zero-sum game in which groups are left to duke it out in the political process in order to determine who gets how much of the speech pie.

It’s no surprise that the victors will be those well-established powerful groups, like the NRA, that have the most political muscle. Smaller, less-established groups will inevitably lose out. (Remember that the next time someone tells you that "campaign finance reform" benefits the little guy.)

Yes, it’s outrageous that the NRA sold out the latter groups in order to guarantee its government-apportioned allotment of speech. But it’s a predictable result of what happens when Congress—having eschewed a free market in speech—arrogates to itself the power to dole out those allotments. Yet another reason why the public should demand a return to the United States’ first, and still best, policy on speech: "Congress shall make no law . . . abridging the freedom of speech."

It’s a sure bet that several of the Senators who sit on the Judiciary Committee will use Solicitor General Kagan’s confirmation hearing as a platform to continue attacking the Supreme Court’s decision in Citizens United v. FEC. For a primer on the top five myths promoted by the critics of this landmark victory for free speech—including the assertions that Citizens United is like Dred Scott and that it will allow corporations to "buy" our democracy—click here.