The Missouri Bar 2012 Constitution Day Program
FREE SPEECH AND POLITICAL CAMPAIGNS
A Joint Project of the Missouri Bar and HEC-TV Live
September 17, 2012
STUDY GUIDE
(Prepared by Millie Aulbur, Director of Citizenship Education, The Missouri Bar)
INTRODUCTION
The Missouri Bar and HEC-TV are proud to host The Missouri Bar Constitution Day
Program for the fifth consecutive year. The 2011 Constitution Day Program on the
presidency won a Telly Award. (The Telly Awards was founded in 1979 and is the premier
award honoring outstanding local, regional, and cable TV commercials and programs, the
finest video and film productions, and online commercials, video and films. Winners
represent the best work of the most respected advertising agencies, production companies,
television stations, cable operators, and corporate video departments.)
This year we are pleased to announce that the program will be broadcast from Thomas F.
Eagleton Federal Courthouse in St. Louis. The program this year is on Free Speech and
Political Campaigns. This topic is a somewhat ironic choice for a Constitution Day
program because neither free speech nor political parties and political campaigns are
mentioned in the original Constitution. However, free speech is one of the guarantees of
the First Amendment, which was proposed to the Constitution in 1789 and ratified in
1791. However, there is absolutely no mention of political parties anywhere in the
current Constitution. Nevertheless, there are some very interesting constitutional issues
associated with political campaigns that our panelists will address during the Constitution
Day broadcasts.
The 2012 Constitution Day Program will air twice: 9:00-10:00 a.m. and 1:00-2:00 p.m.
Constitution Day participants will have the opportunity to listen to a panel of experts on
these topics and to submit their own questions and comments to the panel. The panel
members are:
 Diana Bartelli Carlin, Ph.D. Dr. Bartelli is Vice-President of Graduate
Education, St. Louis University and the creator DebateWatch.
 Governor Bob Holden. Governor Holden has served as both Missouri State
Treasurer and the Governor of Missouri.
 Jack Oliver. Mr. Oliver is a lawyer and is the former Deputy Chairman of the
Republican National Committee.
Objectives:
Students will be able to:
1. Identify and explain First Amendment free speech issues that arise during political
campaigns.
2. Identify and explain key court cases that have addressed free speech issues and
political campaigns.
3. Discuss how contributing money to political campaigns has been equated with the
right to free speech.
4. Distinguish the difference between protected speech and unprotected speech such as
libel and slander.
5. Discuss the role that political candidates have in making sure their campaign
speeches and advertisements reflect a responsible use of free speech.
6. Discuss what role a responsible voter should take in evaluating political speeches
and advertisements.
Purpose of the study guide
This study guide is intended as a resource for classroom teachers to prepare students for
the Constitution Day broadcasts and to provide follow-up activities. The study guide has
background materials, classroom activities, enrichment suggestions and links to
outstanding Internet resources.
THE MAKING OF THE CONSTITUTION AND THE BILL OF RIGHTS
We recommend several excellent websites for exploring the philosophical and historical
foundations and for learning about the Constitution and the Bill of Rights, and for
information about the Constitutional Convention of 1787 and the constitutional
ratification process:
 The National Archives site at http://www.archives.gov
 The National Constitution Center at http://constitutioncenter.org.
 The Constitutional Sources Project at http://consource.org
FREE SPEECH AND POLITICAL CAMPAIGNS
Historical background on political parties and campaigns
Although political parties are not mentioned in the Constitution, they certainly were on
the minds of the Framers of the Constitution and of the Founding Fathers. In Federalist
Paper #10 (all of The Federalist Papers may be found on the Internet from several
sources), James Madison did not speak of political parties but rather of “factions”.
The role of the Federal Communications Commission in political campaigns
Equal access doctrine
Fairness doctrine
The Fairness Doctrine was a policy of the United States Federal Communications
Commission (FCC), introduced in 1949, that required the holders of broadcast licenses to
both present controversial issues of public importance and to do so in a manner that was,
in the Commission's view, honest, equitable and balanced. The FCC decided to eliminate
the Doctrine in 1987, and in August 2011 the FCC formally removed the language that
implemented the Doctrine.[1]
The Fairness Doctrine had two basic elements: It required broadcasters to devote some of
their airtime to discussing controversial matters of public interest, and to air contrasting
views regarding those matters. Stations were given wide latitude as to how to provide
contrasting views: It could be done through news segments, public affairs shows, or
editorials. The doctrine did not require equal time for opposing views but required that
contrasting viewpoints be presented.[2]
The main agenda for the doctrine was to ensure that viewers were exposed to a diversity
of viewpoints. In 1969 the United States Supreme Court upheld the FCC's general right
to enforce the Fairness Doctrine where channels were limited. But the courts did not rule
that the FCC was obliged to do so.[3] The courts reasoned that the scarcity of the
broadcast spectrum, which limited the opportunity for access to the airwaves, created a
need for the Doctrine. However, the proliferation of cable television, multiple channels
within cable, public-access channels, and the Internet have eroded this argument, since
there are plenty of places for ordinary individuals to make public comments on
controversial issues at low or no cost.
The Fairness Doctrine should not be confused with the Equal Time rule. The Fairness
Doctrine deals with discussion of controversial issues, while the Equal Time rule deals
only with political candidates.
Red Lion v. FCC
ami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), was a United States
Supreme Court case that overturned a Florida state law requiring newspapers to allow
equal space in their newspapers to political candidates in the case of a political editorial
or endorsement content. The court held that while the statute does not "prevent
[newspapers] from saying anything [they] wish" it "exacts a penalty on the basis of the
content." Because newspapers are economically finite enterprises, "editors may conclude
that the safe course is to avoid controversy," thereby chilling speech. Furthermore, the
Court held the exercise of editorial judgment is a protected First Amendment activity. In
effect, this ruling reaffirmed the constitutional principle of freedom of the press (detailed
in the First Amendment) and prevented state governments from controlling the content of
the press. This case illustrates the medium with the most Constitutional protection:
newspapers, while Red Lion Broadcasting Co. v. FCC represents the medium with the
least protection: broadcast, television, and radio.[citation
The equal-time rule specifies that U.S. radio and television broadcast stations must
provide an equivalent opportunity to any opposing political candidates who request it.
This means, for example, that if a station gives one free minute to a candidate on the
prime time, it must do the same for another candidate.
However, there are four exceptions: if the air-time was in a documentary, bona fide news
interview, scheduled newscast or an on-the-spot news event the equal-time rule is not
valid. Since 1983, political debates not hosted by the media station are considered news
events, thus may include only major-party candidates without having to offer air time to
minor-party or independent candidates. Talk shows and other regular news programming
from syndicators, such as Entertainment Tonight, are declared exempt from the rule by
the FCC on a case-on-case basis.[1]
This rule originated in § 18 of the Radio Act of 1927 [1]. It was later superseded by the
Communications Act of 1934, where the Equal Time Rule is codified as § 315(a).
Another provision of § 315(a) prohibits stations from censoring campaign ads. A related
provision, in § 315(b), requires that broadcasters offer time to candidates at the same rate
as their "most favored advertiser".
The rule was created because the FCC thought the stations could easily manipulate the
outcome of the elections.
The Equal Time rule should not be confused with the Fairness Doctrine, which deals with
presenting balanced points of view on matters of public importance.
MONEY
Buckley v. Valeo, 424 U.S. 1 (1976), was a case in which the Supreme Court of the
United States upheld a federal law which set limits on campaign contributions, but ruled
that spending money to influence elections is a form of constitutionally protected free
speech, and struck down portions of the law. The court also ruled candidates can give
unlimited amounts of money to their own campaigns.
SUPREME COURT
Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), is a
United States Supreme Court case in which the Court held that issue ads may not be
banned from the months preceding a primary or general election.
DISCUSSION QUESTIONS FOR STUDENTS
AND SUGGESTIONS FOR FURTHER STUDY AND ENRICHMENT
1.
How many political parties have nominated a presidential candidate for the 2012
election? Who are the candidates for each party? How many parties have
nominated a gubernatorial candidate for Missouri’s 2012 election? Who are they
and who are their candidates?
2. What is the Federal Elections Commission? When did it come into existence and
why was it created?
3. James Madison defined factions in The Federalist Papers #10: “By a faction, I
understand a number of citizens, whether amounting to a majority or a minority of
the whole, who are united and actuated by some common impulse of passion, or
of interest, adversed to the rights of other citizens, or to the permanent and
aggregate interests of the community.” Some constitutional scholars argue that
political parties and factions are synonyms while other scholars opine that



Enrichment activity: Look at the arguments of both the Federalists and
Anti-Federalists pertaining to the presidency. Divide the class into two
sides and conduct a modern day Federalist/Anti-Federalist debate about
the presidency.
Enrichment activity: Have the students research how various Presidents
have used their executive powers in both domestic and international
matters. (Some excellent examples may be found in particular with:
George Washington, Thomas Jefferson, James Madison, James Monroe,
Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, Woodrow
Wilson, Franklin Roosevelt, Harry Truman, Dwight Eisenhower, John F.
Kennedy, Lyndon Johnson, Richard Nixon, Ronald Reagan and George
W. Bush.)
Further study: After further research, as a class, discuss which
President(s) the students think have been the most influential in expanding
the role of the President.
Don't swap horses in the middle of the stream
3. How has the evolution of factions into contemporary political parties influenced our
governmental processes? Should the Constitution be amended to include the functions
of major political parties?

How might new ways of communicating and transmitting information diminish the
importance of political parties?

Should we make it easier for new political parties to form and to qualify for a place on
the ballot—perhaps through greater public funding of campaigns?
ALIGNMENT WITH MISSOURI’S SOCIAL STUDIES STANDARDS
Constitution Day
Objectives
Identify and explain First Amendment
free speech issues that arise during
political campaigns.
Identify and explain key court cases that
have addressed free speech issues and
political campaigns.
Show Me
Knowledge/Content
Social Studies 1
Principles expressed in
the documents shaping
democracy in the U.S.
.
Social Studies 3
Principles and
processes of
governance systems.
Performance
Process
Course level expectations/
depth of knowledge
1.2 Conduct
research to answer
questions and
evaluate information
and ideas.
1.2 Conduct
research to answer
questions and
evaluate information
1-A
2-C
2
2
Discuss how contributing money to
political campaigns has been equated
with the right to free speech.
Social Studies 1
Principles expressed in
the documents shaping
democracy in the U.S.
Social Studies 1
Distinguish the difference between
protected speech and unprotected speech Principles expressed in
the documents shaping
such as libel and slander.
democracy in the U.S.
and ideas.
1.2 Conduct
research to answer
questions and
evaluate information
and ideas.
3.6 Examine
problems and
proposed solutions
from multiple
perspectives.
1-A/7-E
1-A/B
2
2
Discuss the role that political candidates
have in making sure their campaign
speeches and media ads reflect a
responsible use of free speech.
Social Studies 3
Principles and
processes of
governance systems
4.2 Understand and
apply the rights and
responsibilities of
citizenship.
1-A/7-E
Discuss what role a responsible voter
should take in evaluating political
speeches and advertisements.
Social Studies 3
Principles and
processes of
governance systems.
4.2 Understand and
apply the rights and
responsibilities of
citizenship.
2-C
3
3