Rand Paul’s father, Ron Paul (R-TX-14) developed a tremendous following on the Internet, and swayed a pretty significant number of young net-hip professionals to profess a belief in Libertarianism. It’s not surprising; political neophytes could guess the whole marketplace of ideas concept of the early Internet might just work for politics as well.

So I’m not surprised Rand Paul thought he could use the Rachael Maddow show on MSNBC to mine the liberal base for new voters. What he didn’t count on, is that libertarianism itself got a fair hearing. Paul had 18 minutes to answer Maddow’s question about the public accommodations clause of the civil rights act, and he couldn’t, because he knows Americans don’t like “letting the marketplace decide” people’s rights.

So now Paul and his lukewarm supporter Sarah Palin are trying to float the theory that Paul somehow got ambushed, even though that question had become a major problem for Paul in previous newspaper and radio interviews where he tried to make his case.

Blaming MSNBC is not an avenue available to a libertarian. As the conservative media group AIM pointed out, he chose to go on Maddow’s show, it’s a privately owned channel on a non-scarce distribution system, which its viewers watch as an act of free-market capitalism.

The free market doesn’t always work, but it worked this time. It pointed out what’s wrong with libertarianism as a 21st Century political philosophy. If Rand Paul were truly committed to his belief system, he’d be happy that it worked so well in practice.

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Liberty Counsel, the right wing religious legal group famous for amicus briefs in “10 commandments in the courtroom” cases, says they’ll back George Rekers should he decide to sue, reports today’s Washington Times. The article quotes Matthew Staver, dean of Falwell’s Liberty University School of Law. Since Mr. Staver’s private practice took place primarily in Orlando, Florida there is a distinct possibility should there be an action, he’d be involved.

I’m not an attorney, just an old news guy fascinated by communication law, but I see two problems here.

First, there is a strong possibility that George Rekers is a public figure. Since New York Times v. Sullivan, public figures have had a tough time suing for defamation. The theory is that robust public debate trumps the rights of an individual who is an actor in that public debate.

“Sullivan” was the police commissioner of Montgomery, Alabama and though he wasn’t even explicitly named, he believed he was held up to ridicule because of an advertisement in the NYT Times that attempted to raise funds to defend Dr. Martin Luther King against a trumped up Alabama perjury indictment.

Rekers was a founder and member of the board of a high profile organization that took an extreme position in an area of great controversy. Much of his income came from expert testimony in widely publicized cases that were extensively written about in the press. In two of these cases he was excoriated for testimony that was worthless and biased. This too was widely reported in the press.

When his activity, most of which he does not deny, became public knowledge, he was further elevated to prominence as the subject of the opening monologues on nearly every late night show, from Colbert to Craig Ferguson.

Should he file a case, that too will be newsworthy, and will have the additional protection that, because it’s litigation, it can be publicly discussed with impunity.

Second, we are now starting to see “he called me queer” cases being thrown out of court on the grounds that an imputation of homosexuality is not defamatory.

So once again, “poor” Mr. Rekers finds himself in the damnedest position. If he sues, the very defense in the case is going to highlight the struggle of a minority to even find a level playing field to argue its oppression against the person fueling that oppression. Rekers will find himself compared with the police commissioner of racist Montgomery, Alabama in the day of MLK.

In claiming he’s injured by being called gay, he will unwittingly call his own life’s work into question, because the very injury he’s claiming is one he has spent his professional life fostering.

He’ll serve himself up on a platter for every op-ed writer in the country that needs to fill 14 paragraphs with topical edginess, and they’ll be able to do it under the doctrine of qualified privilege.

Wouldn’t surprise me if he does sue. It’s the worst possible thing a man in his position can do, and he’s never failed to take the worst option before.

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It breaks down into three major categories:

1. The Former Media Monopoly — This includes the New York Times and MSNBC. You’ll find their exemption under U.S.C §431(9)(B)(i). Their howling has included some great moments in hypocrisy.

   The New York Times (whom you’ll recall as the petitioner who claimed the first amendment rights of its corporation had been violated in New York Times v Sullivan) opined: “Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights.” Since this was an unsigned editorial, this is a corporation complaining that corporations shouldn’t have first amendment rights. Of course, they’re exempted.

   Keith “You Sir” Olbermann, in a special comment assailed the decision with the personhood argument. His comment is actually a work for hire, the property of a corporation and disseminated by it; but of course, they’re exempted. If they weren’t exempted, they’d  be first in line with an amicus brief for Citizens United.

2. Those in Under The Wire — In 2005, the chilling effects to first amendment speech was clearly seen by the blogosphere. The Internet isn’t even mentioned in the media exceptions of BCRA, but the blogosphere wound up almost entirely exempted by an administrative decision of the FEC. As such, the FEC under another board, could change its mind. If it had decided otherwise in 2005, bloggers would have fought for first-in-line position to deliver amicus briefs along with legacy media.
3. The Exempted Political Idea Industry — This howling appears the loudest to those of us on a myriad of political action lists. This is another monopoly seeing itself lose power. Their exemption came through their ability to navigate the complicated work-arounds that resulted in the lawyered-up’s ability to express political opinions on behalf of the people paying them to do so. They’re the middlemen now cut out because anybody can go to a media distributor and buy time, or go to a computer store and buy DVD blanks and fill them with political commentary.

Poltitical contribution laws were out of step with the way media is changing. It resulted in Citizens United not being able to spew a load of crap, while Fox News does essentially the same thing every day.

It causes folks like Margaret McIntyre to be fined a hundred dollars for expressing her speech, while the Swiftboaters get awards.

The politically protected pundits can’t seem to agree what the effects of this will be. Perhaps we’ll hear nothing but corporate shills morn ’til night, perhaps we won’t.

But one thing it will do is change the game in a big way, because this decision gave a lot of freedom to a lot of people, and took away a lot of monopolies from a privileged few and its been those privileged few responsible for most of the noise that’s being made.

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One of the most important cases regarding mass political discourse was argued before an unusual early session of the Supreme Court Wednesday last. The case is Citizens United v. The Federal Elections Commission (FEC), and the ultimate decision may rewrite campaign finance law. Common Cause is justifiably concerned, but they’re just not being honest about the fundamental issue that made SCOTUS revisit the whole question of campaign regulation.

This is first and foremost a first amendment question. You see that clearly in the amicus brief from the American Civil Liberties Union:

This case involves core political speech protected by the First Amendment, long recognized as a fundamental foundation of our democracy. Such core political speech enjoys the maximum possible protection under our Constitution. Yet a federal agency claims the legal authority to prohibit the broadcast of such core political speech. We submit that this Court should redouble its vigilance in protecting the fundamental freedom in this case so essential to our very democracy and self-governance, and our very nature as a free people.

It’s very possible, listening to Common Cause, that you wouldn’t even know the First Amendment is involved. If you joined their webchat expecting to hear the facts in the case addressed, you’d discover the words “First Amendment” never appeared in the discussion, though they did receive questions about it.

Here’s the problem:

U. S. C. §431(9)(B)(i)

The term “expenditure” does not include—

(i) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate;

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