For Sale: One Amendment, Slightly Used

The Supreme Court’s decision in Citizens United v. Federal Election Commission purports to protect the First Amendment, but in fact, it erodes the very basis upon which that amendment, and the Bill of Rights entirely, is founded. It further occludes the transparency of the elective process, making it ever more likely that the public will not be informed about candidates’ positions, records, and personalities, and indeed that the candidates themselves will be less likely to retain control over their own campaigns. It does this by allowing huge piles of corporate money, allegedly to fund “speech,” to overwhelm a candidate’s own message in favor of whatever that corporate-funded speech wants to say.

For this reason (as well as for the Court’s overreaching, about which this New York Times editorial provides good background), the decision corrodes the potential of representative democracy. The purported First Amendment issues are a bit of a smokescreen. The First Amendment does not permit any speech, at any time, by anybody. There are clear and recognized limitations, many of which your average middle-school student is aware of: speech that defames another is not protected, speech that causes a clear and present danger is not protected (“fire!” in a crowded theater), among others. Further, some speech is essentially subsumed into the larger situation in which it exists and is categorized as “behavior”: this is the rationale behind the notion of “fighting words” and “disorderly behavior” (even though both have been subject to abuse). I cannot parade around in front of your house with a megaphone at 3 in the morning alleging that you kill babies and sodomize them. Assuming that’s not true, that’s one reason I can’t do so (I’m defaming you). Even if it were true, the conditions of my speech (that it’s enhanced by megaphone, that it’s the middle of the night) subject it to further limitations concerning disorderly behavior.

So the notion that limiting speech violates the First Amendment is not necessarily correct. The larger problem, though, comes from the notion (originating, I believe, in Santa Clara County v. Southern Pacific Railroad, and see the link to the actual case if you don’t trust Wikipedia) that corporations can be regarded as “persons” under the law. A curious sort of person: immortal (except for “suicide” a/k/a bankruptcy or reorganization), immune from any form of punishment or penalty available to actual persons (except financial—and even there, often able to evade the consequences via “suicide”), and of course utterly amoral. As has been pointed out several times, if a corporation is a “person,” it is a very, very psychologically ill person. The other problem here is the idea that spending money is a form of speech. Sure, such expenditures are to be regarded as “speech” only to the extent that they’re used to fund actual speech…but it’s naive in the extreme (by which I mean “quite knowing”) to imagine such an open-ended notion will limit what is essentially a forum for bribery and blackmail. (My offer of a generous contribution to the police fund, to be conveyed in person by this very trusted police officer who has stopped me for a traffic violation, is political speech in that it contributes toward funding my constitutionally protected rights of freedom of movement. See how well that works.)

Finally, there would seem to be a philosophical problem regarding “freedom” in limited venues. If we want to encourage freedom of expression, but a particular venue is limited in time or space or access, regarding money as a mode of speech creates huge problems. If there are ten slots for radio stations in a given market, arguing that corporate spending is “speech,” and therefore there should be no limits on how much corporations can be allowed to buy up and dominate those ten slots, clearly the only parties who will be able to speak are those who can afford it. And that creates quite the opposite of freedom of speech. While Citizens United does not address this issue, it may be seen as analogous: the ability of corporate interests to dominate media access is further enhanced.

That Times editorial notes that the Constitution was formed with a much more mobile notion of its terms, with an understanding that the goals it sought to protect should determine its interpretation. Corporations were severely limited; a free press was subsidized in various ways; and the goal of an informed public was paramount (at least in theory: not always in practice, of course). Between the withering economic viability of traditional news media organizations, and the ever-expanding ability of corporate interests to blanket the media with its and only its viewpoint, the preconditions for democracy become frailer and frailer.

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