The Remedy Is More Speech | Eastern North Carolina Now

    Publisher's note: This article appeared on John Hood's daily column in the Carolina Journal, which, because of Author / Publisher Hood, is linked to the John Locke Foundation.

    RALEIGH     North Carolina's political establishment is fit to be tied.

    In the May 6 Supreme Court primary Robin Hudson, a Democratic incumbent in an officially nonpartisan race, faced two Republican challengers: former Court of Appeals Judge Eric Levinson and Jeanette Doran, who chairs the state's Board of Review and used to lead the North Carolina Institute for Constitutional Law. Having placed first and second, Hudson and Levinson will move on to the general election in November.

    The reason the establishment is up in arms is that the money the three candidates raised and spent during the primary was dwarfed by more than $1 million in independent expenditures, including ads from the North Carolina Chamber supported Levinson and Doran and blistering ads from Justice for All North Carolina opposing Hudson.

    The most widely discussed TV ad, from Justice for All, accused Hudson of having "sided with the predators" in a dissenting opinion in 2010 challenging the constitutionality of requiring child molesters to wear electronic monitors upon release from prison. Hudson wrote that for criminals already convicted and serving time before the ankle-bracelet law was enacted in 2006, the requirement was a second, ex post facto punishment.

    Four of the seven Supreme Court justices – including current members Mark Martin, Bob Edmunds, and Paul Newby – concluded otherwise. They observed that according to a test set out by the U.S. Supreme Court in 1963, not all measures imposed on criminals after their convictions constituted an unconstitutional ex post facto punishment. Laws blocking criminals from working in particular professions, for example, or even involuntarily committing them in mental institutions after the conclusion of their prison sentences have been declared constitutional by the U.S. Supreme Court because they were intended to prevent future harm, not to punish the offenders a second time.

    North Carolina's ankle-bracelet law had a similar "nonpunitive" purpose, concluded the majority, and certainly wasn't as much of an imposition as occupational bans or involuntary commitment. Hudson disagreed, arguing that the monitoring system was unlikely to be effective. "Given that the program as implemented essentially fails in its nonpunitive purpose," she wrote, "the numerous affirmative restraints and intrusions it imposes on its enrollees become, in my view, punitive in effect."

    Which side do you think had the better argument? Perhaps you and I would disagree. But we'd probably agree that the issue is fully capable and deserving of being debated.

    Like many others, I found the script of the Justice for All ad objectionable. As long as North Carolina elects its judges, however, judicial candidates and the people who support them will engage in debate about legal issues as well as individual cases. Voters will see and hear messages in support of or opposition to particular candidates.

    The real issue here is who gets to decide which messages are legitimate, including which words can be used in them. As independent expenditure campaigns have exploded, journalists and self-styled reformers have demanded new limits on the freedoms of speech, press, and association of persons involved in IE groups. Oddly, journalists and activists seem to think they are the only ones who enjoy First Amendment protection, or that the New York Times and the NAACP are distinguishable from the Chamber of Commerce and Justice for All when it comes to exercising individual rights through corporate institutions.

    The proper remedy to political messages you don't like — be they TV ads, newspaper editorials, or biased "news" stores — is to distribute your own political messages in response, as Hudson and her defenders did. The proper remedy is not to enact unconstitutional limitations on political freedom.

    I can understand why the Justice for All ad (which neither Levinson nor Doran endorsed) left the political establishment fit to be tied. Still, that doesn't justify attempting to tie the hands of citizens seeking to exercise their political freedom. A better answer would be to reform the campaign finance laws so that those who wish to participate in judicial elections can give their money directly to political parties and the campaigns themselves – to be used in real, competitive, partisan races.