Dworkin

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.