Times still intent on suppressing speech, except for its own

Two days before Christmas in 1967, President Lyndon Johnson, visiting the Vatican, presented Pope Paul VI with a foot-high bust of Lyndon Johnson. Small choices can reveal the character of a person.

Or of an institution. Consider The New York Times' choices concerning MoveOn.org's issue advocacy ad in the Times calling Gen. David Petraeus "General Betray Us" and accusing him of "cooking the books for the White House."

Last June, the Times was in high dudgeon about the Supreme Court's refusal to affirm a sweeping government power to suppress speech. The court ruled that a small group of Wisconsin citizens had been improperly refused the right to run an issue advocacy ad urging the state's two senators not to filibuster the president's judicial nominees.

Because one of those senators was seeking re-election, the group's ad was deemed an "electioneering communication" -- one that "refers to" a candidate for federal office. McCain-Feingold bans such communications by corporations, including incorporated nonprofit citizens' groups, in the weeks before an election -- when the Times' editorial page is in full-throated enjoyment of speech rights it would deny to others.

Less than three months after the Times excoriated the court for weakening restrictions on issue ads, the paper made a huge and patently illegal contribution to MoveOn.org's issue advocacy ad. The American Conservative Union, under Chairman David Keene, filed a complaint with the Federal Election Commission, noting that the purchaser of the ad, MoveOn.org Political Action, is a registered multicandidate political committee regulated by the mare's nest of federal laws and rules the multiplication of which has so gladdened the Times.

The Times now says the appropriate rate for MoveOn.org's full-page ad should have been $142,000, a far cry from $65,000, which is what the group paid. So the discount of $77,000 constitutes a large soft-money contribution to a federally regulated political committee. The Times' horror of such contributions was expressed in its enthusiasm for McCain-Feingold.

MoveOn.org is going to send a check to the Times for $77,000. The Times has apologized, which is sweet, but normally the FEC does not accept apologies in lieu of fines. And often FEC fines are levied after intrusive investigations into motives and intentions. Will there be such an investigation of the Times?

Bob Bauer, a Democratic lawyer specializing in laws regulating political speech, notes --not approvingly -- that the Times supposedly has a policy of rejecting ads involving "personal attack" speech. But the Times accepted MoveOn.org's ad accusing a soldier of betraying his country. According to the Times' public editor, a Times official said the ad was "a comment on a public official's management of his office."

The Times' publisher, Arthur Sulzberger Jr., defending the decision to run the ad, said: "If we're going to err, it's better to err on the side of more political dialogue. ... Perhaps we did err in this case. If we did, we erred with the intent of giving greater voice to the people." Bauer notes that Sulzberger might have used words from a Supreme Court decision: "In a debatable case, the tie is resolved in favor of protecting speech." So spoke Chief Justice John Roberts in the Wisconsin decision that Sulzberger's paper denounced because it would magnify the voices of, among other things, "wealthy corporations." The Times Company's 2006 revenues were $3.3 billion.

The Times' performance in this matter confirms an axiom: There can be unseemly exposure of mind as well as of body.

© 2007, Washington Post Writers Group