Editor's Notes

Leno v. Migden, and a reflection on the First Ammendment


I was away with the kids and missed the state Democratic convention in San Jose, but from what I hear, it was quite the show. The big local news, of course, was that Assemblymember Mark Leno blocked State Senator Carole Migden from winning the party's endorsement for her reelection bid. That's a big victory for Leno, who is trying to unseat her.

And the way a lot of my favorite blogs told the story, it was also a victory for the grassroots activists in the party: the Sacramento establishment, they say, was working for Migden.

I don't think that's entirely true; both sides had their heavy hitters. And I'm going to sound a note of caution here: Leno and his team papered the hall with some nasty negative fliers attacking Migden, not just for her travails with the Fair Political Practices Commission but for her driving record.

Leno told me he had to educate the delegates in a short period of time and that the fliers contained "nothing but facts." Which is true. But I don't think he needs to go negative on Migden; she's doing a fine job of that herself. And the attacks open ugly wounds in the community and could help the third candidate, Marin's Joe Nation.

Leno needs to keep a tight leash on his campaign team as this heads for the finish.

And now we pause for a brief reflection on the First Amendment.

Matt Smith over at the SF Weekly took a shot at us last week, arguing that our lawsuit would somehow damage his paper's ability to produce good journalism. Migden was in court this week to argue that the state shouldn't prevent her from spending campaign money in violation of campaign-finance rules. Both claims rely on a dangerous interpretation of one of the most important pieces of law in the history of the world.

Smith's theory: since we nailed the Weekly and its corporate parent for predatory pricing violations, we are somehow guilty of seeking to force the chain to cut back its editorial staff.

We heard the same sort of argument in court, and I suspect the Weekly's lawyers will trot out the First Amendment on appeal. Gee, they will say, the government can't tell a newspaper how much to charge for its ads. That's unconstitutional.

In fact, I think it's pretty clear that the Weekly, not the Guardian, has been the paper attacking the First Amendment. The whole notion that James Madison had in mind when he introduced the Bill of Rights was that a free marketplace of ideas made for a more free and democratic society. Big chains that swallow independent papers limit that marketplace, particularly if, like the SF Weekly's owners, they enforce ideological consistency. Chains that try to kill other papers are even worse. That's what our lawsuit was about.

Then there's Senator Migden, whose legal papers cite one of the worst Supreme Court decisions of my lifetime, Buckley v. Valeo, which says that money is speech and that the rich can spend whatever they want on political campaigns. Again, the problem is the marketplace of ideas: if one side can corner the market with cash, there's no free exchange. Campaign finance laws, properly written, don't diminish the First Amendment; they enhance it. So do fair-competition laws in the media. Because both promote what Madison had in mind — a level (or at least relatively fair) playing field of ideas.

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