The High Price of Free Speech

By all accounts, oral argument before the Supreme Court in Citizens United v. Federal Election Commission did not go well for the proponents of McCain-Feingold and limitations on corporate cash overwhelming the political process.  Even the New York Times has given up the ghost of anticipating a ruling that would prohibit corporate contributions from corrupting politics, begging instead for a decision limited to the rather peculiar facts of the case, that it acceptable for big money to fund Hillary, The Movie, for broadcast on pay per view.

While there is certainly a conceptual ledge to stop the slide down the slippery slope of unfettered free speech when it comes to corporate political funding, there is similarly a purist’s concern that gaming free speech to inhibit its exercise by those who can, and will, corrupt politics hits at the heart of this fundamental right.  On the one hand, multinational corporate cash does not reflect the political speech of people, and may well represent the ideological views of foreigners who own the corporations, and clearly dwarfs, and thus minimizes if not undermines, the ability of individuals to exercise their right to political speech.  All this is certainly true, even though the conservative wing of the court appears to ignore it.

The conservatives also seemed incredulous that vast amounts of corporate money flooding into campaigns could be seen as corrupting the system. We agree with Senator John McCain, who told reporters after the argument that he was troubled by the “extreme naïveté” some of the justices showed about the role of special-interest money in Congressional lawmaking.
And yet, it remains free speech.  Who says rich people can’t exercise their rights because they can do so more effectively than poor people? It may not feel fair, but as the philosopher, Reb Tevya said, it’s no crime to be rich.

Assuming that the Supremes will strike down limitations on corporate spending and, in the name of the First Amendment, open politics in the United States to any and every influence big money can exert, will that trigger the end of democracy as we know it?  Will the influence of individuals, of interest groups long on will and short on cash, be drowned out by well produced movies, television commercials, radio ads, all the media conventions that big money can buy?

That’s up to us.  It’s not like we don’t know that these influences exist and are being used to manipulate public opinion.  Some may reflect legitimate, fact-based opinion.  Others may be flights of fantasy, deliberately deceiving us into hating those they want us to hate.  And bear in mind, it’s not like Michael Moore, whether you love him or hate him, has no agenda. 

While I have some doubts whether our forefathers anticipated the influence of multinationals on the political process when they decided free speech mattered, they certainly expected the wealthy and educated to have the ability carry greater sway over public opinion than the poor and ignorant.  Indeed, democracy is held hostage by the ignorant.  It can be argued that the manipulation of media by wealth will render us all ignorant, feeding us only the crap they want us to swallow.

But this can also be seen as part of the maturation process of American politics. The Fourth Estate, assuming it continues to exist in some form, can still provide us with information about our candidates and issues, meaning that we will still have an opportunity to educate ourselves no matter how glossy and easily digestible the corporate influence might be.  We also know that big money is being used to manipulate our beliefs, and have the ability to guard against it, to recognize it for what it is, to accept or reject it.
Of course, the cynical view is that Americans are too stupid and lazy to make the effort to learn.  It’s so much easier to sit back in the la-z-boy, beer in hand, and let the information flow from the tube to the brain, accepting it at face value and believing ourselves fully competent to decide our fate.  Like lambs to the slaughter.

This leaves it up to us.  Democracy takes work.  Nobody promised that it would be easy to maintain a free nation without getting out of the recliner, except for bathroom breaks during commercials.  Perhaps we’ve had it too easy for too long, being spoon fed politics in 90 second intervals.  McCain’s “extreme naïveté” is one that assumes that Americans will never get off the couch and think for themselves.  He may be right, but we do have the power to alter the equation, and we have it on our own, no law needed.

And of course, we always get the government we deserve.  No Supreme Court decision can change this.  It’s entirely up to us.

5 thoughts on “The High Price of Free Speech

  1. Jeff Gamso

    Asked what kind of government they’d cooked up at that constitutional convention, Ben Franklin is said to have answered, “A republic, if you can keep it.” Which is sort of your point, I think.

    And though they didn’t really mean that stuff about free speech to be taken too literally (note the Sedition Act of 1798, just 7 years after the Bill of Rights was adopted), it actually works best when it means what it says.

  2. SHG

    Bear in mind that things went back and forth between the federalists and the anti-feds for a bit, though they all quickly realized that rights are really inconvenient when you’re the guy in charge.

  3. John Kindley

    There is a minority libertarian tradition, represented best I think by Henry George, that sees a more egalitarian distribution of property as essential to a free society, and sees government itself as a major contributor to much of the unnatural disparities in wealth that exist.

    It seems our corporate law has some things bassackwards. Tax-exempt non-profit corporations aren’t allowed to engage in explicitly political speech, while for-profit corporations are (within the strictures of McCain-Feingold). Seems to me that religious organizations, as well as other non-profit public interest corporations, should be allowed to engage in explicitly political speech without losing their tax-exempt status, and should be allowed to do so as close to an election as they want. After all, according to the democratic mythos who gets elected affects the public interest. (And religious organizations are properly concerned with conduct in this world, including the conduct of politicians.) On the other hand, the purpose of for-profit corporations is to make a profit. Shareholders of for-profit corporations sign up to make a profit, while contributors to non-profit corporations sign up to further what they perceive to be in the public interest. While there’s a gray area there (political speech by for-profit corporations is presumably made in furtherance of their legitimate for-profit mission), since corporations are creatures of the state and not natural persons I don’t see much wrong with the state putting significant limitations on the political speech of for-profit corporations. It could be argued that such political speech when made by a for-profit corporation is akin to commercial speech, and commercial speech traditionally has been afforded less protection under the First Amendment.

    SCOTUS, therefore, could rule in favor of Citizens United, a nonprofit corporation whose contributors are trying to further the public interest, while keeping the floodgates closed against for-profit corporate cash.

  4. John Kindley

    So long as Citizens United gets zero money from for-profit corporations, seems we’re as okay as we can be. Now if a wealthy individual or group of individuals whose interests happen to be aligned with this or that for-profit corporation contributes to Citizens United, there’s not much we can or should do about it consistent with the First Amendment. I know shenanigans go on where corporate management is expected/required to contribute to this or that cause, but that’s not as bad as actually enlisting resources owned by the shareholders for political speech to presumably benefit the shareholders. (I actually know precious little about corporate law, so I should probably stop now.)

    After visiting Citizens United website I see that contributions are not tax-deductible, and upon reflection I think that’s as it should be.

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