The New York Times now concedes that it charged MoveOn.org too little for its now famous anti-General Petraeus ad.  MoveOn will pay more, to quell the controversy and moot, if it can, the issue raised  with the Federal Election Commission by the American Conservative Union.  This is one of the missteps for which the Times has been criticized by Clark Hoyt,  its ombudsman.  It seems that Hoyt also would have expected the paper to reject the ad as inconsistent with its policies against selling space for “attacks of a personal nature.”  Apparently, there is “rough” and therefore “acceptable” speech and other speech so negative that it not fit to print. 

     Here is shown how utterly lost the Times is on speech issues and how much embarrassment, as consequence of its confusion, it must suffer.

     Let’s dispose first of the easiest point.  The campaign finance laws that the Times has so righteously championed have, by its own admission, trapped the paper in a violation.   A salesperson got the rate wrong, and though the advertisement is not aimed at an election, does not support a candidate, and does not promote a political party—though its purpose is to weigh in on a debate over national security policy—the discounted price paid by MoveOn is arguably an illegal contribution in kind from the Times to a federally regulated “political committee.”  Silly as this may seem, the Times is the last publication in the land to grouse about the madness and injustice of it all.

      Then there is the question of the kind of speech this was.  Distasteful to some, for sure, and those who have denounced it include members of both parties.  On the ad’s wisdom or incivility, there will be differences, sharp ones, but the Times, it turns out, administers a policy of  refusing ad space for nasty  “personal attack” speech, consistent with its sermonizing generally on “acceptable” speech in political argument.  These policies are easier to proclaim than to administer, the Times has learned.  According to Hoyt’s account, the executive who approved the ad thought it "rough," but concluded that it was excusable and appropriate as “a comment on a public official’s management of his office”  

      Comment on a public official’s management of his office. “ Issue advertising,” it is called elsewhere: issue advertising similar to that protected by the Wisconsin Right to Life decision, a case that the Times found offensive in the extreme.

      Experience can soften hard positions such as those that the Times has taken when urging restrictions on speech that is not its own.  There is some evidence of this softening at the Times, in the aftermath of the MoveOn.org episode.  Hoyt tell us that, when defending the Times' judgment in the acceptance of the ad, the publisher, Arthur Sulzberger, Jr., said this:

If we’re going to err, it’s better to err on the side of more political dialogue.  Perhaps we did err in this case.  If we did, we erred with the intent of giving greater voice to people.

      When in doubt, "err on the side of more political dialogue"?   Sulzberger might have put it this way: "in a debatable case, the tie is resolved in favor of protecting speech," or in another formulation:  "Where the First Amendment is implicated, the tie goes to the speaker, not the censor." 

      But while Sulzberger might have expressed himself splendidly with these maxims, he did not.  Chief Justice Roberts did, in Wisconsin Right to Life.  127 S.Ct. 2652, 2669 n.7.