Elections are rarely fun for constitutional law scholars to watch. Both Democrats and Republicans mutilate the Constitution to fit into neat political pitches and soundbites. However, Gov. Sarah Palin has reached a new low with her interpretation of the first amendment as threatened by criticism of her views in the media. Palinprudence is to Jurisprudence but Palintology is to Paleontology. Just as Palin believes man walked with dinosaurs, she appears to believe that free speech demands that people allow her to speak without contradiction.

On a conservative radio show, the vice presidential nominee spoke of “attacks” from reporters who have been covering her negative campaign against Barack Obama. The McCain camp is widely viewed by voters are running an extremely negative campaign and Palin has been the main pit bull, as promised, in driving those attacks. Now, Palin has raised a constitutional objection:

“If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations, then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.”

So, this is how it works under Palinprudence. While the free press is expressly part of the First Amendment, it is the media that is threatening Palin’s right to free speech but criticizing what she says. Put another way, the only way to protect the rights of free speech and free press is to have less of it — at least for critics.

It is a view that would require some considerable re-working of constitutional theory and language to maintain. Just to clear the palate of Palinprudence, here are a few helpful quotes:

“Free speech is not to be regulated like diseased cattle and impure
butter. The audience that hissed yesterday may applaud today,
even for the same performance.” Justice William O. Douglas

“An unconditional right to say what one pleases about public affairs
is what I consider to be the minimum guarantee of the First Amendment.”
Justice Hugo L. Black in New York Times Company vs. Sullivan (1964)

“[A] function of free speech under our system of government is to invite dispute. It may indeed best serve it’s high purpose when it induces a condition of unrest, creates dissatisfaction with things as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for understanding.” Potter Stewart (1967)

“It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable.
They are cognate rights, and therefore are united in the first Article’s assurance.”
Judge Wiley B. Rutledge in Thomas v. Collins (1944)

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