My latest article for Reason combines three of my favorite things: mezcal, free speech, and insulting Donald Trump. “Donald eres un pendejo,” says a popular campaign from Ilegal Mezcal:
Messaging like Ilegal’s has struck a chord, but it’s also in tension with the idea, popular on the political left, that corporations should not engage in political speech. Since the U.S. Supreme Court’s Citizens United decision in 2010, it has become common for liberals to assert that corporations don’t have free speech rights, that money is not speech, and that corporate expenditures intended to influence politics can be restricted unproblematically. A question worth asking then is: Would a hypothetical President Trump have constitutional authority to forbid mezcal companies from calling him a pendejo?
Nothing that Ilegal has done so far would have violated election laws as they stood before Citizens United v. Federal Election Commission. At the time of the decision, the Bipartisan Campaign Reform Act applied only to broadcast, cable, and satellite communications that explicitly mentioned a candidate by name. But if that decision had gone differently, it’s also easy to imagine election laws being extended in ways that would have a chilling effect on advocacy.