McConnell v. Federal Election Comm'n, 540 U.S. 93, 183 (2003)

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282

McCONNELL v. FEDERAL ELECTION COMM'N

Opinion of Thomas, J.

tution requires the reverse"). In fact, First Amendment protection was extended to that fundamental category of artistic and entertaining speech not for its own sake, but only because it was indistinguishable, practically, from speech intended to inform. See Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 501 (1952); Winters v. New York, 333 U. S. 507, 510 (1948) (rejecting suggestion that "the constitutional protection for a free press applies only to the exposition of ideas" as the "line between the informing and the entertaining is too elusive for the protection of that basic right," noting that "[w]hat is one man's amusement, teaches another's doctrine"). This principle clearly played a significant role in Buckley itself, see 424 U. S., at 42 (after noting that "the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application," holding that the "express advocacy" standard must be adopted as the interpretation of the relevant language in FECA). The express-advocacy line was drawn to ensure the protection of the "discussion of issues and candidates," not out of some strange obsession of the Court to create meaningless lines. And the joint opinion misses the point when it notes that "Buckley's express advocacy line, in short, has not aided the legislative effort to combat real or apparent corruption." Ante, at 193-194. Buckley did not draw this line solely to aid in combating real or apparent corruption, but rather also to ensure the protection of speech unrelated to election campaigns.13

Nor is this to say that speech with words of express advocacy is somehow less protected, as the joint opinion implies.

13 These cases are an excellent example of why such a bright-line rule is necessary. The Court, having "rejected the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy," ante, at 194, proceeds to uphold significant new restrictions on speech that is, in every sense of the word, pure issue-related speech. The Court abandons the bright-line rule, and now subjects political speech of virtually any kind to the risk of regulation by Congress.

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