Sounds like an end run on free speech

For several decades, most of the ingenuity that liberal academics have invested in First Amendment analysis has aimed to justify limiting the core activity that the amendment was written to protect - political speech. These analyses treat free speech as not an inherent good but as a merely instrumental good, something justified by serving other ends.

The good for which Zephyr Teachout would regulate speech is combating corruption, which, as she understands it, encompasses most of contemporary politics. A visiting law professor at Duke, writing in the Cornell Law Review ("The Anti-Corruption Principle"), she makes an astonishingly sweeping argument for emancipating government from First Amendment restrictions on its powers to regulate political speech.

Hitherto, most arguments for such emancipation have rested on the supposed need to curb corruption or the "appearance" thereof, with corruption understood as quid pro quo transactions, political favors exchanged for financial favors.

Teachout says the Framers thought limiting corruption was their "primary task." Therefore the "anti-corruption principle" should have "as much weight" as the First Amendment, giving Congress "leeway" to regulate the political "process," which is mostly speech.

She advocates, as proponents of an elastic Constitution often do, an "evolving standard," this time about how we define, measure and condemn "self-serving" behavior, aka corruption. This standard might license Congress to restrict speech in order to combat:

"Unequal access" to the political process; "unfair deployment of wealth"; "undue influence" by this or that group; speech that is "distorting" or lacks "proportionality" or results in "drowned voices" or a "passive" or "dispirited" public or that causes a "loss of political integrity" or creates "moral failings for members of Congress." Such speech might not be constitutionally protected.

So, political speech is not a right but a privilege, granted when government deems it consistent with what Teachout calls the "equally important" anti-corruption principle.

The word "corruption" or some permutation of it occurs 58 times in the 85 essays that are the Federalist Papers. James Madison wrote not only many of the papers but also this: "Congress shall make no law ... abridging the freedom of speech." He saw no conflict between that proscription and efforts to minimize corruption.

If corruption is as ubiquitous as Teachout's standard ("self-serving" behavior) says, then reasons for restricting political speech also are ubiquitous. Under today's regulatory and redistributionist government, which is busily allocating wealth and opportunity, politics frequently "appears" to many people "self-serving." It will not, however, be prettified by regulating speech.

If Teachout considers the politics produced by today's gargantuan government unlovely, she should not try to further enlarge the government by empowering it to comprehensively regulate speech about government. Instead, she should join the movement to restrain government's incessant regulating and redistributing transactions on behalf of myriad factions - transactions that create more and more clamorous factions. The movement is called conservatism.

© 2009, Washington Post Writers Group