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Friday, February 15, 2013


Ronald Dworkin has died. I respected him, but disagreed, respectfully of course, with his denunciation of Citizen's United. This is tricky, because I am political liberal, and the decision of the SCOTUS in the case was by the conservative. I ought to be against the decision, but I am not. I view it as a straightforward First Amendment case. I'm no free speech absolutist, but I think Citizen's United is correctly decided from a constitutional perspective. Of course, what do I know? I'm no constitutional scholar.

Dworkin writes:
Decisions on these and a hundred other issues require interpretation and if any justice’s interpretation is not to be arbitrary or purely partisan, it must be guided by principle—by some theory of why speech deserves exemption from government regulation in principle. Otherwise the Constitution’s language becomes only a meaningless mantra to be incanted whenever a judge wants for any reason to protect some form of communication.
So to protect free speech, the burden is on the judge to have a particular theory about why particular speech "deserves exemption" from the government? I think the burden is on the government to prove that it has the right to regulate speech. The idea of judges running around arbitrarily preventing the govt. from protecting our speech is just bizarre. Of all speech issues, moreover, the most protected is political speech. Thus there is an extra special burden put on restrictions of political speech.

Opponents of this decision often rely on the idea that corporations are not people. So a corporation or a union should have no rights. Yet surely people have a right to form associations (like unions or non-profit corporations) in order to put forward certain views? The New York Times is a corporation, and should have 1st Amendment rights.

The other argument I hear is that this decision is based on the fallacy that "speech is money" or "money is speech." The idea is that the govt. has a right to regulate money spent, and that regulating money is not automatically regulating speech. But I don't think that this argument holds water. The only purpose of regulating money, in this case, was to restrict the ability of a group to get a message out. By saying you can't spend money to get the message out, you are effectively saying you can't get the message out at all. Once again, the so-called "conservative" majority on the court saw this issue very clearly. Dworkin does not seem to see this basic issue here at all.

Dworkin argues for the necessity of a well-informed electorate. That's a great ideal. The idea is that if too much money from a certain source or sources is allowed (or too much speech?) then the electorate will be less informed. The problem here with his argument is that even partisan speech that leads to ignorance is constitutionally protected. You can't just rig the system for an ideal result.

He also argues that you just sweep away rights because the vehicle people choose to express them is a corporate entity.
Kennedy tried to appeal to this understanding of the First Amendment to justify free speech for corporations. “By taking the right to speak from some and giving it to others,” he stated, “the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice.” But this is bizarre. The interests the First Amendment protects, on this second theory, are only the moral interests of individuals who would suffer frustration and indignity if they were censored. Only real human beings can have those emotions or suffer those insults. Corporations, which are only artificial legal inventions, cannot. The right to vote is surely at least as important a badge of equal citizenship as the right to speak, but not even the conservative justices have suggested that every corporation should have a ballot.
This reasoning seems bizarre to me. (Dworkin's, not Kennedy's). First of all, speech is not like a ballot. I can speak as much as I want, but I only get to vote once. Even if every fortune 500 company had a ballot, that would be only 500 votes and would have no effect at all. If people want to put their money together in a way to organize themselves financially to have "more speech," I cannot see why the govt. has the right to stop that. A liberal billionaire could have a corporation that promotes liberalism or even Marxism.

My view is that the first amendment protects speech and the press generally. It applies to me if I write a poem without any ostensible political content at all, or a political protest poem. You shouldn't have to justify on a case by case basis why the govt shouldn't regulate any particular kind of speech. So I don't need a theory to say I can write this poem with no fear of censorhip, or spend money to self-publish it a los cuatro vientos, even setting up a corporation to do so. By looking at several narrow theories of why we need the 1st amendment, Dworkin misses the larger picture that no censorship should be the default position. In other words, the span of the amendment is larger than any particular justification or set of justifications that explains why we need it.

Whenever I make this kind of argument, I feel dumb, because it seems so obvious to me that I am sure I must be missing something that all good liberals like me ought to see.

Here is one liberal who agrees with me. And another.


Clarissa said...

"By saying you can't spend money to get the message out, you are effectively saying you can't get the message out at all."

- The problems begin when one entity spends so much money on getting its message out that nobody else can afford to do so. If a mega-billionaire corporation decides to buy off all advertisement in a particular medium at a price that nobody can beat, then nobody else will able to share their messages.

I like the way elections are organized in Spain (I mean, the general principle, not the result.) If every contender in an election got a specific and limited amount of money and exposure on TV, the process would be more transparent and the result more fair.

Vance Maverick said...

I don't think anyone, particularly a liberal, would say they like the way elections work here. The question is what can and should be done about it. Guaranteeing the right to vote? Abolishing the Electoral College (or making it a formality)? Yes, please. But restricting who can make and transmit what kind of message? Attractive as it might be in some cases, it really does go against our current understanding of the freedom of speech.

(An understanding that changes over time, obviously -- Debs wouldn't go to jail today, though the publicity for saying something unpopular seems to be worse than 100 years ago.)

Jonathan said...

Right. It is restricting who can make and transmit messages that I find troubling. Of course, there are so many virtually free ways of getting out a message (blogs, facebook, twitter) that no mega corporation can monopolize the public discourse.

Leslie said...

They can in smaller venues. Where I live the Democratic Party has given up, no support for candidates here, and ownership of radio airwaves and billboards and television advertising and tv shows by oilfield and related mentalities conditions what is tweeted and put on facebook as well. And it is disingenous to say people should take personal responsibility and be sure to listen to alternative media when most do not have anywhere near those kinds of research and critical skills.

But the liberal position is, in fact, formal commitment to free speech and equal treatment before the law without consideration of the material conditions that might make the exercise of these rights possible or even probable. I am not saying that is necessarily wrong or that in a liberal state it may not be the only way to remain consistent/coherent. Historically, though, it has often meant that one had a set of rights on paper which had very little to do with the material conditions in which one lived.

Jonathan said...

Good point. I'd guess that where the right is hegemonic they probably don't need to pour in billions more in extra campaign spending. The people get it from their churches, their relatives, and from the general cultural ambience. In principle, though, restricting free speecsh will not benefit the left in the long run. An entire new organization like Fox News which is exempt from campaign restrictions (because it is a media company) can do what is essentially 24 hour campaigning all year round. The law struck down by the SCOTUS did nothing to restrict AM talk radio or Fox News. In my view it was next to worthless.

Leslie said...

It may be so since mega-dollars can always be given to Fox. I still want to know who actually paid for the myriad Jindal signs here, which started sprouting very early and gave the impression it would hardly be worth registering to run against him -- it seemed to be a fait accompli.

I'm not for limiting free speech but I do note you have to have money to exercise this right.

Jonathan said...

If you need money to have speech then limitations on money are also de facto limitations on speech. I think the answer is to have enough money on both sides of any race so that speech is unfettered for everyone. I hate it when people complain that 6 billion was spent on a federal election. There are more than 300 million people in the country so that is just like 20 bucks per capita. How much do people think it ought to cost?

Vance Maverick said...

Leslie, I agree with you completely about the ill effects of lopsided media spending. As with the second amendment, I fear this is a case where the repugnant conclusion is baked into the cake.