People continue to characterize the Court’s campaign finance decisions as resting on the theory that money is speech. And of course money isn’t speech.
But, as I wrote a few years ago, money isn’t abortion, either. Nonetheless, a law that banned the spending of money on abortion would surely be a serious restriction on abortion rights (whether or not you think that the Court was right to recognize such rights). A law that capped the spending of money for abortions at a small amount, far smaller than abortions often cost, would likewise be a burden on abortion rights, and dismissing this argument as “it is quite wrong to equate money and abortion” would be unsound.
Likewise, money isn’t education, and it isn’t lawyering. Yet a law that capped private school tuitions at $2000 (not just limited the amount of government-provided scholarships, but capped private spending by parents for tuition) would be a serious, likely unconstitutional, burden on the right to educate one’s child at a private school. Likewise, a law that barred wealthy defendants from spending more than $20,000 — or even $200,000 — for assistance of counsel would violate the Sixth Amendment. Even if for some reason you thought that these laws should be upheld, the response that “it is quite wrong to equate money and [education / lawyering]” would be an unsound response.
Similarly, we wouldn’t say “air travel is speech,” or “computing power is speech.” Yet surely a law that would limit the use of air travel or computers in political campaigns would be understood as a serious restriction on speech.
The problem with restrictions on independent spending on campaign speech — a problem recognized by Justices Brennan and Marshall and not just by today’s conservatives (though Brennan and Marshall would have allowed more such restrictions than today’s conservatives do) — isn’t that money is speech. It’s that restricting the use of money to speak, like restricting the use of air travel or computers to speak, interferes with people’s ability to speak. One can debate whether this interference is justified. But mocking the pro-constitutional-protection position as resting on the notion that “money is speech” strikes me as quite mistaken.
LTEC says:
Money has existed for thousands of years, but many people are weak on the concept. An example is Marie in my favorite line from “The Jerk”, when she finds out that her husband Navin is bankrupt:
LTEC(Quote)
rogervzv says:
I think that this essay absolutely nails the point as to why the Court decided this case correctly. Money is not speech. But to restrict the ability to use money to engage in speech is to effectively prohibit it. As you say, there is not much doubt as to what the Court would do if a state government prohibited or greatly restricted the amount of money that could be spent on abortions. And yet political speech is one of the most fundamental rights of all. Surely it is wrong to burden speech by draconian restrictions on funding it. rogervzv(Quote)
Chris Travers says:
The other mistake that folks make is the conflation of giving money to a campaign and independent expenditures on advertising. Chris Travers(Quote)
bbbeard says:
We’ve heard many times in the last year that “health care is a right”. It that were true, would it be constitutional for the government to limit the amount of money that one can spend on health care?
BBB bbbeard(Quote)
methodact says:
Your comparison of the wholesale auction of lawmakers to that of an indivual paying for a single medical procedure seems strained, at best.
Perhaps a better analogy is that of the electro-magnetic spectrum. Broadcasters are able to transmit their signals as long as no other broadcasters are transmitting on the same bandwidth for that area of coverage.
The preponderance of spending by copious big bucks corporations will essentially jam all lesser signals. methodact(Quote)
bchurch says:
I don’t think your analogies are entirely sound. In your examples, money is given for some concrete good or service– in which case, restricting the money restricts access to the good or service.
In the case of electioneering, the spending is the point– at least with contributions. Whatever concrete benefits accrue to corporations for donating money to various campaigns (or making expenditures on their behalf) could in fact be viewed as fruits of a criminal bribe. The majority in Citizens United was adamant that there was no quid pro quo going on here.
The money here isn’t simply providing access for venues in which to speak either (in which case your analogy might hold up a bit better). In the case of contributions at least, money is claimed to be the speech itself. bchurch(Quote)
Off Kilter says:
EV: You wrote: “But, as I wrote a few years ago, money isn’t abortion, either. Nonetheless, a law that banned the spending of money would surely be a serious restriction on abortion rights”
I’m sure this confuses very few, but I assume you are not contemplating a law eliminating the common medium of exchange. Rather, I think you meant “...a law that banned the spending of money ON ABORTION would surely be a serious restriction on abortion rights.”
[Whoops, thanks, fixed it. –EV] Off Kilter(Quote)
AJK says:
AJK(Quote)
Mark Field says:
Isn’t much of the disagreement on this point a function of the fact that some see the availability of communication channels as a rivalrous good? If you take that view (as is fairly common with respect to, say, TV broadcasts), then restrictions on money are logical (though I disgree with them). Mark Field(Quote)
Ilya Somin says:
Isn’t much of the disagreement on this point a function of the fact that some see the availability of communication channels as a rivalrous good? If you take that view (as is fairly common with respect to, say, TV broadcasts), then restrictions on money are logical (though I disgree with them).
Many communication channels are indeed a rivalrous good, in the sense that two speakers can’t use them at once. But the same is true of printing presses, computers, and so on. The fact that you can’t type words on my computer at the same time as I do doesn’t mean that the government can censor what I write using this tool. It just means that we need a system of private property rights to make clear who owns which computers. the same goes for printing presses, TV channels, and so on. Ultimately, nearly all material resources are rivalrous. That doesn’t mean that the Constitution allows the government to censor speech produced through the use of those resources. Ilya Somin(Quote)
ChrisTS says:
I suppose I am about to reveal my deficiency in political consistency, but what concerns me about this decision is not a matter of constitutional rights. I do, in fact, think it is silly to claim that corporations, unions, etc. are ‘persons’ in any meaningful sense, but that is another matter.
What really has me worried is that this decision strikes in effect at the heart of democratic process — and at a time when that process is already seriously corrupted in our nation.
We have people all over the political spectrum decrying the influence of ‘big money’ from varied sources on our system and the ever-decreasing significance of ‘ordinary’ citizens. The Congress tried to do something about it. The Supremes, with little concern for precedent, have just opened the chicken coop to the foxes.
And, let’s be clear, here: this is not a decision that affects the rights of persons to marry or have sex as they wish or to move freely about the country. It is a decision that will affect the the integrity of our democractic process. ChrisTS(Quote)
YYY says:
The US Supreme Court, in its 1976 decision in the case Buckley v. Valeo, essentially concluded that free expression can be counted in dollars. Money spent to influence elections, the court concluded, is a form of constitutionally protected free speech. Has this been overturned? YYY(Quote)
ricky says:
“this is not a decision that affects the rights of persons to marry or have sex as they wish”
Good point. Those are the only freedoms that really matter. ricky(Quote)
Fub says:
Until the communication acts are repealed, the government owns the broadcast TV and radio channels. The “owner”, in the sense of who gets to broadcast on the channel, is the licensee of the government.
Government does “censor speech” on broadcast channels. For example: There are words the licensee can’t broadcast without facing sanctions for “indecency”. Those same words can be printed legally (and are printed) in newspapers and magazines, or “broadcast” on the internet.
When a broadcast licensee allows a candidate for public office the use of the channel, the government requires him to offer substantially the same use to all other candidates for that office. Print media and “internet” media are not subject to that requirement. Fub(Quote)
PatHMV says:
Exactly, Chris. It affects the very heart of our democratic process. And what some people want to do is control that political process by having the government decree who can speak, and when, regarding elections and the issues before us. Campaign finance reform of the sort struck down here says: “If you are an individual, you can speak. But you cannot come together (peaceably assemble) with others who agree with you in order to speak collectively about a matter you all share the same thinking about.” Does this allow for some “abuse” by corporations (or unions)? Undoubtedly. Many of our rights are routinely “abused,” in some people’s thinking, but that is not a very good reason to usurp them.
This law didn’t just prohibit IBM or GE from financing campaign commercials. It meant that I couldn’t get together with a few of my friends, incorporate (so as to provide some internal rules of organization, if nothing else), raise funds, and spend that money pursuing a cause we all believe in (be it legalization of gay marriage or anything else).
So yes, the restrictions against speech which were overturned by this Court ruling struck at the very heart of our democracy, trying to subvert it so as to create a class of privileged speakers (the government, incumbent politicians, independently wealthy individuals, and news media corporations) at the expense of the rest of us, who cannot afford to broadcast and disseminate our beliefs without pooling our funds and organizing collectively. PatHMV(Quote)
ptt says:
Technology limits the number of printing presses? (I suppose it does, should we get to the point of exhausting our resources or running out of space.) ptt(Quote)
methodact says:
I could actually accept the stretch that money equates to speech, despite the pernicious dangers lurking in that proposition. But the Court does turn the Commerce Clause on its head, which it so liberally stretches in any direction and into any shape it so sees fit, (e.g. Raich), for outcome-oriented adjudicating, yet in a pure commerce case, it finds the powerful sacred-cow corporatist interests sacrosanct.
The Court goes out of its way to deny the putative inalienable rights in sexual-themed speech and nudity and child porn on the grounds that it offends some people’s delicate sensibilities.
Yet the danger of runamock corporatism (i.e., Fascism), literally ultimately threatens the majority’s existence.
We’ll have to wait and see if the Court will now rectify its fiat creations of other 1st Amendment exceptions, or if only the fiat personhood of corporations will receive the Court’s new-found largesse, (in which case the Court continues to display profound intellectual dishonesty, as ever furtively couched in circuitous abstract and arcane legalese). methodact(Quote)
geokstr says:
Yes, of course, “ordinary citizens” like foreign nationals, and those with names such as “Es Esh” and “Doodad Pro” and “Qwerty” that were able to donate a ton of money in 2008 to your hero because his campaign deliberately turned off the safeguards that the tiniest company uses routinely for credit card purchases. Or the woman whose name was appropriated to donate $174,800 to Obama but whose credit card was never billed. Or maybe you meant those donors who used prepaid credit cards, whose identity could therefore not be traced. Or maybe all those donations under $200, which made up a large chunk of his total take, whose identities the Obama campaign refused to release so it could never be determined if campaign limits were violated. Oh, those “ordinary citizens”.
WaPo: Obama Accepting Untraceable Donations
It’s an absolute fiction that so many “ordinary citizens” would throw their money at far leftists.
And I see a lot of comments that say that unions weren’t free to donate until this decision, but that’s BS. They contributed hundreds of millions in cash alone in 2008, plus an untold amount in services in phone banks and other in-kind contributions. geokstr(Quote)
methodact says:
Ilya Somin:
Apply Kelo to copyright. methodact(Quote)
S says:
Corporations are not persons and it is ludicrous to suggest they have constitutional rights. S(Quote)
Ken Arromdee says:
By this reasoning, for an individual to make a political donation is also bribery. Ken Arromdee(Quote)
Mark Field says:
I get this point and I generally agree. My point, though, is different. Many people believe that the availability of large amounts of money to broadcast speech results in “crowding out” or “drowning” the speech of others. It’s one thing if we all have access to the internet and more people listen to you than listen to me; both of us have an equal chance to be heard. But that’s not true in other situations. There, the use of money controls the access to and distribution of the speech. That money/speech is rivalrous because it swamps the available space, driving out access to other speech.
At least that seems to be how many people are intuitively seeing the situation. Mark Field(Quote)
S says:
Plainly untrue. I am certain you don’t know what the law said. Your analysis says it outlawed political parties.
The legislature creates corporations and is the only legit source for their rights. Otherwise, a criminal enterprise has rights — just the people coming together, after all S(Quote)
alligator says:
YYY:
bchurch:
No. “Money is speech” is a simplistic distortion of the Supreme Court’s reasoning in several campaign finance decisions. In McConnell, Scalia addressed this in a subsection titled “Money Is Not Speech”:
Please, stop saying that SCOTUS ruled that money is speech. It didn’t, nor has it in the past.
ChrisTS:
“Corporations are real people,” like “money is speech,” is a simplistic distortion of holding and reasoning. See here. alligator(Quote)
PatHMV says:
S... the statute makes certain exceptions for political parties, and a few types of federally-approved organizations:
So you go read that and figure out exactly how that I could get together and decide, with say 100 friends, to pool our funds and spend our money to buy ads and do direct mail-outs to try to persuade fellow citizens how they should vote. There are a few legal ways to do it, but not very many, and you frankly need to hire a lawyer to figure out what you can do and what you can’t.
Answer this. WHY exactly is it so bad for the NRA or the Sierra Club to spend money it raises to try to influence public opinion? Why is it so bad that individual supporters of guns or the environment, rather than speak directly, decide to combine their funds and speak collectively through those organizations? Why are you so very, very scared of speech? PatHMV(Quote)
methodact says:
S:
Since we bring up IBM, (disclaimer: I love IBM, I own and use IBM servers), IBM was more than willing to promote eugenics and provide equipment to the Nazis to help process Jews for extermination.
IBM recently developed advanced crypto-cracking abilities and are wedding to government in the faltering economy, and more particularly, embarked on a fresh new focused foray into, by all appearances, black ops. methodact(Quote)
bchurch says:
By the reasoning used in Prof. Volokh’s analogy, not mine. bchurch(Quote)
S says:
Why are you so very, very scared of speech?
Speech is obviously not the problem, government combines (ie. coporations) to spend money in this area are. Corporations don’t have speech and they don’t have rights against the legislature. S(Quote)
byomtov says:
Chris Travers,
The other mistake that folks make is the conflation of giving money to a campaign and independent expenditures on advertising.
They seem reasonably similar to me. Sure, someone who makes independent expenditures on behalf of a candidate may not be spending the money exactly the way the candidate would. But the expenditure is beneficial to the candidate nonetheless. The difference, in economic terms, is that the expenditure is worth somewhat less tahn its actual amount, but that doesn’t make it worthless. byomtov(Quote)
Octavian says:
All this commotion over the majority opinion in the SCOTUS decision for Citizens United recognizing corporations’ right to free speech reminds me of an exchange between Sir Thomas More and his son-in-law William Roper:
William Roper: So now you’d give the devil the benefit of law?
Sir Thomas More: Yes. What would you do? Cut a great road through the law to get after the devil?
William Roper: I’d cut down every tree in England to do that.
Sir Thomas More: Oh, and when the last law was down and the devil turned on you where would you hide Roper, all the laws being flat? This country is planted thick with laws from coast to coast, man’s laws not God’s, and if you cut them down — and you’re just the man to do it — do you really think that you could stand upright in the winds that would blow then? Yes, I’d give the devil the benefit of the law, for my own safety’s sake.
Robert Bolt, A Man For All Seasons, act 1, sc. 6. Octavian(Quote)
Brett Bellmore says:
The position that, any time you do something somebody else would approve of, you’re bribing them, proves too much. It makes bribery omnipresent. I could bribe a philanthropic politician by giving to charity.
If “bribe” it to have any meaning, it has to be limited. Brett Bellmore(Quote)
Kieth says:
I think the “crowding out” (Mark Field) argument has merit. The existing television bandwidth carries a huge amount of advocacy message, mostly advertising for products and services, overwhelmingly paid for by corporations. I realize televsion is only a major part of the media scene, not the entire thing, but it is representative. It should be recognized that an advertising message carries an implicit identification of its author and its intent (sell shampoo, attract deposits). That identification does not and will not apply to political messages (“paid for by the committee to save America” or other dissembling tag). It is reasonable to presume that political questions can benefit corporations as much as their product promotions and one has to ask where the dividing line (between advertising products and promoting political causes) will eventually be drawn. Could political advocacy become 20% of total advertising? maybe more? I think you would have to hope that the networks would limit the amount of political advertising but where would they get the power to do that? I guess we have to rely on people to turn off the set.
Corporations are not people, they are bigger than people. Kieth(Quote)
jareds says:
So, with appropriate legislation in place, the government can declare your family a criminal enterprise and confiscate all property jointly held by it, without making available any right of due process, right? One person has rights, but two or more people only have rights at the pleasure of the legislature, otherwise criminal enterprises would have rights! (Certainly you don’t seem to be making an argument limited to the corporate form, which criminal enterprises do not often take.) jareds(Quote)
PatHMV says:
You do believe in the Constitutional right to peaceably assemble and petition the government for redress of grievances, don’t you, S? How do you propose that people do that, in a country as large as ours, without spending money (for travel, communicating with each other, etc.)? PatHMV(Quote)
SteveMG says:
Corporations are not persons and it is ludicrous to suggest they have constitutional rights.
Great, then will somebody please go steal Frank Rich’s computer/word processor? Since the Times has no rights, you won’t be punished.
Afterwards, we won’t have to read his head-scratching columns anymore.
Oh yeah, grab Krugman’s too just for the helluva it. SteveMG(Quote)
Mark Field says:
I know you’re just being snarkastic, but theft is barred by statute, not by the Constitution. The legislature can give rights to a corporation even if the Constitution doesn’t. Mark Field(Quote)
bchurch says:
What constitutional rights
The Times can have property rights without being a person or having constitutional rights (other than 5th amendment takings clause). bchurch(Quote)
S says:
Jerads — the legislature does not create families it does create corporations.
Pat and Steve — There is nothting that prevents the legislature form creating different kinds of corporate forms and differnt types of ownership. S(Quote)
Fred says:
Octavian — if you think the majority cut down the laws of the land, you would be right. Fred(Quote)
PatHMV says:
The government doesn’t create families, S? So all this arguing over gay marriage is a waste of breath? And we could have polygamous families now, since families aren’t created by the legislature? Ok...
And sure, the legislature can create different kinds of corporate forms. What it can’t do is regulate the speech of those corporations, because that would be a law abridging the freedom of speech and the press. You might actually re-read the 1st Amendment, which doesn’t actually refer to persons, and simply forbids Congress from passing any law abridging the freedom of speech. PatHMV(Quote)
AJK says:
S, if a corporation is sued, can it demand a jury trial? AJK(Quote)
methodact says:
S:
Well, mentioned right along IBM was GE. GE is one of the worst government propagandists. With no fairness doctrine, we rely heavily on the Internet, to debunk and refute their lies. Since the Internet is not effectively controlled yet by those controlling the propaganda messages of corporate media, it shimmers conspicuously in the crosshairs for ongoing criminalization. Make sanctions terrifying enough and all but the most intrepid will be cowed into silence or be simply willing only to parrot the status quo, the orthodoxy, the party-line. As the expression goes, “once freedom is outlawed, only outlaws will have freedom’.
One thing we know from Operation Mockingbird, is that of the importance of the echo-chamber. The echo-chamber is where non-paid propagandists parrot the propaganda of the controlled elements of media, providing coverage for the controlled elements because those echo-chambers can be examined and no direct links to propaganda controllers can be traced back. Skeptics can then declare, “see, there is no government propagada” (partnership).
And what about K Street? methodact(Quote)
methodact says:
If you want specific examples, look at New York Attorney General Andrew Cuomo. AG Cuomo made his bones trying to kill Usenet, (all while shaking-down telcos and cable co’s). Now he is assured that the Big Money will find its way to his ambitions for the office of New York State Governor.
The previous limits actually somewhat protected corporations from major shake-downs by unscrupulous politicians methodact(Quote)
jareds says:
The legislature does not create criminal enterprises, so what was the point of this?:
jareds(Quote)
Ilya Somin says:
Many people believe that the availability of large amounts of money to broadcast speech results in “crowding out” or “drowning” the speech of others. It’s one thing if we all have access to the internet and more people listen to you than listen to me; both of us have an equal chance to be heard. But that’s not true in other situations. There, the use of money controls the access to and distribution of the speech. That money/speech is rivalrous because it swamps the available space, driving out access to other speech.
Actually, almost any kind of speech involves advantages that some people have and others don’t. For example, I can attract more attention to my speech than the average person because I’m a law professor, have access to a well-known blog (which was already famous before I joined it), and so on. Other people can attract a larger audience because they are celebrities, and so on. Money is far from unique in that regard.
However, the supposed “swamping” effect of money is limited by market competition and the importance of demand. If a large number of people want to hear a particular point of view, there’s a strong incentive for investors to provide an outlet for it, for their own self-interest. Ilya Somin(Quote)
Dick King says:
In terms of abridging rights to freedom of speech and press, personhood is not mentioned. Am I the only person to notice that congress is forbidden from abridging corporations’ freedom of speech or press, not because the corporations are legal persons, but because abridging freedom of speech and press are things that congress may not do, even to non-persons?
–dk Dick King(Quote)
Money & Speech « KELOLAND.com | Issues Blogs says:
MurphtheSurf says:
GIVING FOREIGN GOVERNMENTS ACCESS TO OUR GOVERNMENT:
THE BEST (OR WORST) THAT MONEY CAN BUY
This ruling gives foreign powers an enormous amount of power in determining American political life.
Here is a good (bad) example: Aramco, a corporation owned by the Saudi Arabian government, will have enormously more influence in choosing your senator than you will.
Saudi Aramco (Arabic: ?????? ???????? ) is the state-owned national oil company of Saudi Arabia. It is the largest oil corporation in the world with the largest proven crude oil reserves and production.[2] Headquartered in Dhahran, Saudi Arabia,[3] Saudi Aramco also operates the world’s largest single hydrocarbon network, the Master Gas System. It was known as just Aramco between the years of 1933–1988, an acronym for Arabian American Oil Company.
Associated companies/subsidiaries
* Aramco Services Company (ASC): HQ in Houston.
* Aramco Overseas Company B.V. (AOC B.V.) — HQ in The Hague.
* Aramco Associated Company (AAC)
* Aramco Training Services Company
* Saudi Refining, Inc. (SRI)
o Aramco Financial Services Company (AFSC), a wholly owned subsidiary of Saudi Refining, Inc.
* Saudi Petroleum International, Inc. (SPI) — HQ in New York.
* Bolanter Corporation N.V.
* Pandlewood Corporation N.V.
* Saudi Petroleum Overseas Ltd. — HQ in London.
* Vela International Marine Ltd.: HQ in Dubai.
Each of these companies will be able to spend money freely on issues or candidates they endorse. Current disclose rules will provide no relief from this. There is virtually no transparency now. How bad will it get when there is even more money flowing in the system and the motivation to create front groups or bury responsibility in jargon will be even stronger than it currently is?
Want to guess how interested this company will be in controlling our energy policy? Want to guess how interested this company will be in controlling our environmental policy? Want to guess how interested this company will be in controlling our trade policy? ....Our research and development policy?....Our international banking policy? ....Our Middle East Policy regarding Israel, Iran, Muslim Fundamentalism?
This will not stand. It cannot stand. There are too many Americans who love this country and won’t allow it to happen. Are you one of them? MurphtheSurf(Quote)
Oren says:
I don’t know, did you vote for a candidate just because Aramco sponsored a 60 second spot during the football game?
Do you know anyone that would? Oren(Quote)
MurphtheSurf says:
We know the power of advertising. We know its ability to influence decision making. We know it works. It’s why corporations are willing to spend millions of dollars for a 30 second spot during the Super Bowl.
All you need to do is examine the fiery rhetoric and unexamined ideas present in so many rallies, letter writing campaigns, and oratory to realize that the thinking of many is very easily influenced.
Sad, but true. I vote based on research. Perhaps you do as well. If so, we are in a distinct minority. Yes, I am very worried about the impact of media campaigns. I am worried about large staffs hired to serve a candidacy, or rallies bought and paid for in support of a cause.....from the deep, deep pockets of a Corporate Body (whether it be Big Business or Big Labor or Big Whatever).
I have worked more than 20 campaigns. I speak from experience. MurphtheSurf(Quote)
NickM says:
Mark Field — crowding out could not apply to expenditures on the internet, direct mail, periodical advertising (they can always add more pages), phone banking, or numerous other methods of common campaign spending.
Nick NickM(Quote)
methodact says:
We escaped the global warming conspiracy and its carbon taxes on every aspect of life, by the mere skin-of-our-teeth. And only because some Russians (or so it is believed), leaked the climate-gate e-mails in the nick-of-time before the Copenhagen Climate Summit.
Perhaps you don’t remember another earlier government propaganda campaign spewing 24/7 out of NBC/MSNBC, CNN, et. al., on the bugaboo like can currently be found here.
How does one counter a multi-billion dollar propaganda campaign that effectively conceals its controllers?
The same style model of propaganda blitzkrieg was planned for the emergency roll-out of carbon-taxes, with knee-jerk laws being passed without opportunity for ample rebuttal and certainly not the instantly available resources to mount a truth campaign against the giga-bankrolled propagada conspiracy.
We know they are planning the same model of propaganda blitzkrieg against file-sharing and fair use, etc., along with dead-of-the-night “emergency” law making that they foist so well.
People heard all the boogeyman hokem about “protecting the children” so often and without critical analysis that they were obliged to believe that specious campaign.
What makes anyone think that the same well financed secret propaganda war would not have succeeded as well for emergency carbon taxes or for that matter, emergency measures against “File-sharing” which we already know is in the works and yet-to-come? methodact(Quote)
uberVU - social comments says:
Brett Bellmore says:
Well, yes. Every censor wants to censor based on the belief that the words they’re silencing might otherwise persuade someone. Brett Bellmore(Quote)
David Schwartz says:
This only sounds sensible because of two very different meanings of the word “create”. The government didn’t create IBM either, but it did create the system of laws under which IBM organized and operated. Similarly, the government did not create my family, but it did create the system of laws under which we organize and operate.
Corporations are, just like families, a way people organize and operate. Governments create the legal structures in which they exist, and under any sensible government one can imagine, analogs of corporations and families would exist because human beings choose to organizes themselves in these ways. Only the details would differ. David Schwartz(Quote)
Arkady says:
I’ve always thought of the trope ‘money is speech’ along the lines of ‘time is money’. Obviously, time is not money, but one can surely understand what is meant. I recall a tv commmercial in which some great edifice is being built (it might have been a giant hamburger–the details are lost). The foreman yells, “C’mon guys, we’re burning time!” Of course you can’t burn time, but we know what he means.
I confess I’m surprised that anyone would press so hard on a trope that the metaphorical meaning is squeezed completely out of it. Arkady(Quote)
Ilec says:
Doesn’t that only work if a large number of people know that a particular point of view even exists for them to demand access to? Isn’t the common argument by those who are more on the fringes of political debate that there viewpoints are never aired within mainstream channels and hence the majority of the population are unaware that those viewpoints even exist? Ilec(Quote)
Fred says:
The government doesn’t create families, S?
Families, clans, etc. existed without government. Corprorations (and btw. criminal enterprises) never did. Fred(Quote)
Fred says:
Sounds dumb, when you consider the purpose of advertising is to create demand for things (arguably, that people don’t even need). Fred(Quote)
Fred says:
. . . It also sounds inconguent, coming from a theorist of political ignorance. Fred(Quote)
S says:
Pat — The difference between us is you imagine corporations can speak. They can’t. S(Quote)
AJK says:
I get one vote for my senator. How many does Aramco get? AJK(Quote)
PatHMV says:
That’s funny, S. I could have sworn I saw a talking gecko on TV the other day, speaking to me very directly on behalf of the Geico corporation. What an idiot I must be, to have assumed that was Geico speaking to me... Who was it, really? Don’t tell me the gecko is real! PatHMV(Quote)
S says:
Quite right, you buy into the fiction that a corporation speaks. S(Quote)
Oren says:
Fiction or not, speech (in the sense of “expression meant to convey an idea”) takes place. In fact, if you don’t believe it’s directly speech, it still falls under the expressive conduct definition. See, e.g. Tinker v. Des Moines or TX v. Johnson (quoting the latter):
[ As a side note, of course I don’t think one need the expressive conduct doctrine to vindicate a TV ad by a corporation promoting toothpaste. My point is that even accepting the argument that a corporation cannot “speak” and hence the ad is not protected speech it is still covered by the ECD. ] Oren(Quote)
LongCat says:
S: as noted above, if a corporation is sued, can it demand a trial by jury? If the government expropriates its land, can it demand compensation? Can the state search any property held by a corporation without a warrant?
Why does the first amendment matter less? LongCat(Quote)
Don Miller says:
Money isn’t speech.
Money buys a bigger stage to speak from.
1st Amendment guarentees the Right to Free Speech, it doesn’t guarentee that anyone will listen, it doesn’t guarantee that all speech is equal either.
Everyone in this country has the right to speak about political issues. Just because someone else has more money and can buy that bigger stage, doesn’t change my right to speak. It just means more people might hear him than hear me. Don Miller(Quote)
Martinned says:
That depends: How many do they need?
But seriously, of course there is a connection between money and speech. But that does not mean that campaign finance regulation should receive the level of scrutiny it currently gets under Buckley v. Valeo, etc.
While the distinction between companies and individuals is silly, and in most cases merely a way to get around the money = speech problem, regulating campaign finance (direct and indirect) should be possible without automatically getting in trouble with the constitution.
Well, yes. It works outside the area of speech, too. Why ban drugs except based on the belief that they do harm? Why require seatbelts except based on the belief that they actually work? Martinned(Quote)
Martinned says:
Well, that’s the reverse question. The real question here isn’t whether everyone can speak, but whether the government can do something about how big the stage may be. Martinned(Quote)
PatHMV says:
S, who is speaking in the Geico ad, then? Is that only the speech of the actor doing the voice-over?
Or do you believe that there is no such thing as collective action, that a group cannot organize and decide to speak with one voice, with the message being created through some sort of collective decision-making process? PatHMV(Quote)
Martinned says:
You mean like this? Martinned(Quote)
Mark Field says:
Agreed that money is not unique. But some of the advantages you mention are related to the merit of the speech (you’re a law professor), so those advantages are fully consistent with any theory of free speech.
The Citizens United situation is more analogous to a crowded room where everyone insists on talking at once. You might say that those with louder voices simply have a natural advantage. But the reaction of most people would be to impose some sort of rules in order to assure an equal opportunity to be heard. That sense of fundamental fairness is widespread and is violated by Citizens United.
As you might expect, I don’t buy (pun intended) this libertarian view. It’s utter nonsense IMO. Among other flaws, political advertising is not demand-driven, nor concerned with profit and loss. There’s no incentive to provide any particular view.
I agree regarding the internet and, to some extent, periodicals. The other media you suggest (especially phone banks) strike me as having very significant “crowding out” externalities.
You’re not the first or even the 10th person to raise this argument, but it has 2 fatal flaws:
1. You assume your conclusion by treating the 1A as applying to corporations when that is the very point in dispute.
2. You don’t believe in your argument. That’s not an insult; nobody believes in it. Nobody — certainly not the Supreme Court — believes that Congress can pass “no laws” regarding speech. Congress passes such laws all the time. The only question ever litigated is whether a particular law abridges speech too much. Mark Field(Quote)
PatHMV says:
The editorial cartoon linked to by Martinned is an excellent example of how this issue brings out the WORST sort of populism among some folks on both the right and the left. “Corporations” become the bogeyman responsible for all of our ills. Evidence is rarely provided, and what evidence is given is generally anecdotal, reports of isolated incidents of corruption, rather than systemic undermining of the democratic process. The invocation of the bogeyman also leads lots of folks to forget that what’s good for corporations is, in fact, very often good for us, too. Lower taxes for corporations tends to lead to lower prices for us. Reduced regulations make it easier, faster, and cheaper, for corporations to provide us with the goods and services we want.
What good reason is there to prohibit a corporation from telling folks that, for example, if they elect a protectionist politician, that will probably increase the costs of the goods the corporation sells? PatHMV(Quote)
Kirk Parker says:
MurphtheSmurf,
I’ll admit I haven’t read the entire decision, only excerpts, but I’m surprised to hear that it gives corporations the right to vote! Why isn’t anyone else talking about this aspect?
And no, we do not know “the power of advertising”, certainly not in the sense you mean. And I see it really comes down to, “I am wiser and more careful than my fellow-citizens”. Bleah. Kirk Parker(Quote)
Martinned says:
I choose to look at it as describing the influence of money on political speech generally. Anyway, weren’t you Americans supposed to be big fans of populism? (In contrast with us elist Europeans, where politicians allegedly don’t listen to their voters...)
You don’t think internet adresses are scarce? In theory, there’s an unlimited number of them, but that doesn’t change the fact that the famous ones and those that are easy to remember have significant scarcity = economic value, quite apart from any brand name value that might be connected to them.
(I mean, amazon.com is a brand, which the company spent a lot of money developing. That doesn’t mean it isn’t scarce, but at least it is scarce for all the right reasons. However, there are many other simple domain names you could think of that would have value even before anyone starts investing in them, simply because there is a finite number of simple, easy to remember, domain names.)
So no, neither on the internet, nor in periodical advertising can they “always add more pages”. Both the Volokh Conspiracy and the print version of the New York Times have room for a limited number of ads, or, put differently, adding more ads is subject to diminishing returns both for the ads and for the value of the entire product. (If 99% of the space in the NYT were taken up by adds, few people would read it anymore, even if the actual amount of reporting stays the same.) Martinned(Quote)
ShelbyC says:
But doesn’t the first amendment prevent the government from imposing those rules? Your arguement here would imply that the governemnt can impose financial restrictions, or time limits, or whatever, on speech for everybody, not just corporations. ShelbyC(Quote)
Martinned says:
If there is a sufficiently compelling government interest, I don’t see why not. But then they have to do it without discriminating against certain speakers, especially not on the basis of content. Many on the left in the US have been talking for decades about some form of public financing. Assuming such a scheme is designed carefully, I don’t see why it wouldn’t be constitutional. Martinned(Quote)
PatHMV says:
Martinned, there’s a world of difference between “populism,” as that term is used in our political realm, and support for the popular will and the belief that people left to their own devices generally make better decisions, in the long run, than “elites.”
Here, for example, Huey Long (Senator from Louisiana in the early 1930s) was a populist (and a demagogue), while President Roosevelt, a political nemesis of Long’s, was not, even though both supported a number of principles in favor of redistribution of wealth from richer folks to poorer folks. I’m sure there are any number of books on the subject of American political populism if you’d like more information. PatHMV(Quote)
Mark Field says:
I’m willing to treat the internet as effectively infinite.
The government can always impose time, place and manner limits. I don’t think that’s controversial.
To be clear, there are 2 separate and distinct arguments that I see being made against Citizens United:
1. Corporations don’t have 1A rights (or maybe any Constitutional rights).
2. Corporations do have such rights, but this particular restriction should have been upheld for the “crowding out” policy reasons I’ve suggested, because those raise time, place, and manner issues.
I’m only addressing the second issue. Mark Field(Quote)
David Schwartz says:
Certainly these laws reach an awful lot of speech that never had any chance of “crowding out” anything (under a reasonable reading of that term). So argument 2 is DOA — if you accept 1A rights are implicated, you need laws that are narrowly focused.
In any event, crowding out is a perfectly legitimate speech tactic. If I can crowd your speech out with my speech in a private forum, preventing me from doing so restricts my free speech rights. The marketplace of ideas doesn’t work by magic any more than any other marketplace does. People have to be free to fight in it. David Schwartz(Quote)
Martinned says:
Says who? Martinned(Quote)
Dan says:
Prof. Volokh,
Doesn’t your theory raise a standing problem that would prohibit corporations from challenging many contribution restrictions?
Consider a restriction on corporate donations to a candidate, which the candidate will then use for campaigning.
You argue that contribution limits are unconstitutional not because the contribution is speech, but because the restriction inhibits speech. If so, then a corporate donor would not have standing to challenge the above restriction, because only the candidate’s speech is inhibited — not the corporations. A third party doesn’t have standing to challenge a violation of another person’s rights.
Because of this problem, I’m not sure your interpretation is what the Court had in mind. They held that limitations on direct corporate expenditures amount to an outright ban on speech. Under that holding, it seems that the following would be protected:
- a corporation donating money to buy a candidate some new clothes. (Where is the speech? Whose speech is it?)
- a corporation purchasing some new clothes and giving them to a candidate. (What speech? Whose? )
In either of those examples, the corporation would have standing to challenge a restriction only if the Court felt that money is speech, not if the Court merely thought, as you posit, that money enables someone else’s speech. Dan(Quote)
ShelbyC says:
Fair ’nuff. But don’t time, place, and manner restrictions have to be content neutral? Restrictions on only electioneering communications aren’t, correct? ShelbyC(Quote)
David Schwartz says:
Well me, you’re quoting me. Crowding out in a speech market is just like any monopoly in a commercial market. And if you do think there should be laws against monopolies in commercial markets, I can’t imagine you think such laws would be permitted in areas protected by 1A. Surely if we had a “freedom of commerce” clause, laws against tying or monopolistic leverage would be unconstitutional.
The marketplace of ideas doesn’t work by magic. It works by people fighting for their ideas with all the resources they have available. David Schwartz(Quote)
Mark Field says:
Yes they do have to be content neutral, but restrictions limited to electioneering can be content neutral in one sense (though they maybe aren’t in another sense); depends on how you see it. Mark Field(Quote)
DonBoy says:
Is phone bank jamming protected speech? DonBoy(Quote)
ShelbyC says:
Isn’t the sense that you’re referring to typically described as viewpoint neutral, as opposed to content neutral? Or is there a sense that I’m missing? ShelbyC(Quote)
Martinned says:
I think you’re taking the marketplace of ideas metaphor too far...
Just a short inbetween point: I hope we agree that a “freedom of commerce” clause like you suggest would be a bad idea? How strictly to regulate monopolies depends — from the POV of economics — on the importance of innovation in the environment under consideration, and the ability of an incumbent to forestall future innovation. If innovation is less important, or if it is highly important but easily blocked by the incumbent, the optimal policy is to go after monopolists quite harshly.
In the “marketplace of ideas”, the relevant currency isn’t money. Ideas themselves come at zero marginal cost. Beyond that, the problem is to allow them to be understood and evaluated by voters. In a perfect market, that would be costless, meaning that all voters would consume (=receive, absorb) all ideas. (Perfect competition + zero marginal cost = infinite demand.) Analogising from a market for goods or services, that would be the total welfare maximising outcome.
Introducing market imperfections in the form of transaction costs, in this case the costs of communication and reflection, does not change the fact that total welfare created by the market is strictly increasing in the number of ideas consumed. You can’t consume an idea twice. It follows that the fairness doctrine must be strictly enforced.
Now to be clear: that is not what I am advocating at all. My point is merely to show that taking the “marketplace of ideas” metaphor too far leads to a conclusion that is unethical, not to mention the diametrical opposite of what you seem to prefer. So no, the marketplace of ideas is not magic.
You said that “crowding out is a perfectly legitimate speech tactic”. What I meant to flag in that statement is the word “legitimate”. That implies a value judgement, and in my humble opinion, as stated above, you can’t suffice by referring to the marketplace of ideas. Even Learned Hand’s famous dicta that “[t]he successful competitor, having been urged to compete, must not be turned on when he wins.” (in Alcoa) is a value judgement, not one that can — in all its generality — be supported with a strictly economic argument. (For the record, I’m not going near Hume’s Is/Ought problem. This comment is abstract enough as it is.)
Whether it is legitimate for Congress to put its thumb on the scale one way or another is a tricky issue, at least if we assume that they do so in a content neutral/viewpoint neutral way. If you come out and claim that it is legitimate for Congress to allow bully pulpits and bullhorns to be auctioned off to the highest bidder, that is a defensible position. But it is certainly one that is in need of further ethical argument, for example from a consistent libertarian world view. Martinned(Quote)
Oren says:
We already have public financing. What you can’t (constitutionally) do is make it mandatory. Oren(Quote)
Peter says:
It is absurd that the state could create a “person” who would then be entitled to constitutional rights. That is what a corporation is. It’s a legal fiction, entitled to immunities and privileges as such. It uses those immunities to amass capital and to shield from personal liablity the human beings behind it.
The Supreme Court’s decision is absurd. The whole (i.e., the corporation) is greater than the sum of its parts (i.e., the human beings) because of special legal protections it is given. It should not be given additional rights.
It also makes no sense to entertain the fiction that the shareholders are expressing their views through the corporation. The corporation acts as its own entity, with the best interest of the entity (and, indirectly, the shareholders) in mind.)
How many “shareholders” actually even know they have shares in today’s money market portfolio age? How many “shareholders” voted for Governor X while the corporation supported Governor Y? No one addresses these tough questions because its much easier to “analyze” the issue from the ivory tower of hypotheticals than from the actual data and facts at play. Peter(Quote)
Mark Field says:
Yes, sorry. Mark Field(Quote)
Oren says:
The right to political expression is not “additional”.
Whose views does the ACLU express?
Don’t know why shareholders is in scare quotes.
At any rate, the shareholders (by majority vote) are free to impose restrictions on the corporation’s spending. The fact of the matter is that shareholders give less than a fig about corporate political spending by a huge margin and would much rather invest in a company that supports the wrong candidate with a 5% return than one that supports the right one with a 4% return. Oren(Quote)
ShelbyC says:
Yes I’m missing something, or yes it’s viewpoint neutral :-).
What I’m getting at it that, unless I’m missing something, any time, place, and manner restrictions on corporate speech (at least speech that takes place in public fora) need to be “content neutral”, i.e. not limited to electioneering communications, and not just viewpoint neutral. ShelbyC(Quote)
AJK says:
Here’s a new law: A corporation may not request a jury in any criminal or civil proceeding.
Constitutional or not? AJK(Quote)
NickM says:
I’m assuming by externalities you’re referring to the fact that while the amount of direct mail you can receive is essentially infinite, a plethora from one entity will cause you to stop reading most or all of it (with a similar situation occurring in regard to phone banking). The sender ends up crowding himself out too, in effect.
I don’t see that as a proper concern of the government, and even if it were, I believe the fact the speaker’s aim is to persuade would lead them not to “overspeak”. Getting your audience to stop listening is highly counterproductive and acts as its own punishment.
Nick NickM(Quote)
Martinned says:
And what if the goal is to get your audience to stop listening to something else? (Like, say, the truth.) Martinned(Quote)
Mark Field says:
The agency problems inherent in corporations make me skeptical of this claim.
If the audience only stopped listening to the overproducer, that would be fine. If the audience tunes out everyone, that’s an externality the others shouldn’t have to bear.
I’m not sure that’s right (though it may very well be), but it shouldn’t be the case if, as I’ve suggested, there are in fact problems particular to that specific technique. Mark Field(Quote)
Dan says:
Really? How so? I don’t think this is true under Delaware or Massachusetts Corp Law. Shareholders are only allowed to vote on “sale of assets not in the ordinary course of business” or some conflict of interest transactions.
Of course, most shareholders are not individuals, but are themselves corporations or funds. It’s even more questionable to assert that individual mutual fund holders can ‘speak’ through a corporation in which the fund holds shares by directing the corporation to speak in one way or another.
The fact is, “owners” of a corporation do not have the power to express political speech funded by corporate spending. Dan(Quote)
Oren says:
Sigh, Delaware Corporate Law Section 141(k) states that the majority of shareholders can remove the entire board of directors without cause:
Again, the plain fact of the matter is that the vast vast vast majority of shareholders have no desire to limit corporate political spending.
And the equity in that corporation or shares in the fund must, eventually, be owned by a person (or perhaps the trust of a deceased person, which is an interesting corner case).
You miss the entire point of joint-stock ownership. Shareholders do not, as a general matter, want to direct anything. They want to hire some managers and delegate all the authority that they had onto those managers. This is even more true for mutual funds.
You are asserting as ‘questionable’ something that no one claims — that equity holders want direct control over the political speech that the corporation makes in their name. Their freedom to speak does not get erased simply because they contractually delegate that authority to someone else.
I don’t understand this. First, do you mean the actual owners or the “owners” in some scarequote sense?
The shareholders in a joint-stock corporation have entered into a contractual agreement in which they voluntarily surrender decision-making power to management (more than voluntarily, they pay management many millions to make the decisions!). The vast majority express no desire to change this arrangement despite their manifest power to do so.
In these parts, we usually refer to it as “trying to get the audience to stop believing (someone else)‘s lies”.
In the end, the only thing we can do is hope that open political discourse is the best way to ferret out the truth. This is the principle of deliberative democracy and, while its failings are obvious and manifold, I don’t think anyone realistically believes that there is a viable alternative method. Oren(Quote)
David Schwartz says:
No, I don’t agree. I don’t agree that central command is a better way than a marketplace to decide how important innovation is.
I don’t know what it mean to talk about the marginal cost of an idea. If you mean the cost to produce on more good idea, it’s definitely not zero. If you mean the cost to get an idea to be held by one more person, again, it’s not zero.
If you mean the cost to produce a digital or paper copy of any idea, sure, it’s zero. But that’s not what the marketplace of ideas is about. Hollywood is not selling us ideas. The marketplace of ideas is about producing the best ideas and gaining mindshare.
And that’s what these companies are doing. They are producing clever arguments and advertising, and they are using them to gain mindshare.
I could not disagree more strongly. That would be a horribly malfunctioning market. The point of the market is to filter out the crap so that the marketplace is filled with the best. Do you really think that poison labeled “baby food” should be competing on an even playing field with applesauce?
That would be awful, the most effort would be needed to sort the good ideas from the bad.
I don’t think you understand how I think ideas should compete. David Schwartz(Quote)
Martinned says:
No, you should read carefully.
I didn’t say anything about anyone believing the truth. I spoke only of “listening”. In fact, whether the message spread by the other is true or false is irrelevant. All that matters is that someone with deep pockets objects to it, and now has the option of drowning it out with white noise, or with whatever else they feel like.
Regardless of whether people can recognise the truth if they see it, they won’t be able to recognise it unless they see it first. Maybe one of the people who keep emailing me really is a Nigerian prince with money issues. But I’ll never know... Martinned(Quote)
Martinned says:
I tried to do some economic modelling. (As I do for a living.) I’m sorry if that confused you. Let me try to clarify some of the other questions raised as well.
Your first suggestion is the fixed up front (R&D) cost of idea production. Your second suggestion is the transaction cost involved. But for the transaction costs of finding a listener (customer) and transferring the idea (transferring title), the cost of sharing an idea around is zero. Ideas are non-rival. (And non-excludable, but that’s not important for now.) If you analogise the market for ideas with the market for goods, the only costs that remain are the fixed cost and transaction costs, but not the marginal costs (of production).
Are you arguing in favour of government intervention now?
Anyway, we were talking about (perfect) markets as they are described in micro-economic theory. Poison and applesauce are two different goods, and the perfectly rational economic actors who trade on perfect markets wouldn’t need to be told which is which. (Yet another reason why the analogy doesn’t work.)
In the marketplace of ideas, the consumer needs to have access to as many ideas as possible, in order to maximise the chance that the best idea will be among them. If you’re going to propose a mechanism that acts as a filter, increasing the chance that the best idea will float to the top, that is fine. But then please do so, and explain where that leaves your idea that “crowding out is a perfectly legitimate speech tactic” and/or your idea that spending by wealthy individuals or corporations does not hurt the efficiency of this purported market, or even improves it. Martinned(Quote)
David Schwartz says:
That’s just not how the marketplace for ideas works. Finding a listener and transferring the idea to him does not do it. You have to sell him on the idea. You have to acquire mindshare. The idea does not do it itself by the magical power of its correctness.
No. In fact, it is precisely government intervention that breaks this feature of markets. In a perfect market, you would have to work really hard to find a crappy product. Since nobody would be buying them, nobody would be selling them. Equal access is *NOT* a feature of a healthy market. It should, by natural market forces, become very hard to keep a crappy product on the market and very easy to keep a good one.
One example that’s particularly relevant here is market gateway keepers. If I make a product that is poisonous and claim it’s baby food, I will not be able to get Walmart to sell it. This is a critical function of a healthy market — market forces keep the junk out. Some retarded “equal access” or “no crowding” rule that lets me sell my poisoned applesauce at Walmart would be sheer idiocy, not “fairness” or any such nonsense. The argument that rational consumers won’t buy it is true, but they won’t buy it because they shop at stores that don’t sell it. That is, they *benefit* when market gateway keepers can crowd out the junk to increase the value of their gateway functions and thus their own product.
Nonsense. He needs to have access only to the best idea, and he can employ market filters to save him the trouble, and the risk, of having to evaluate all the ideas himself.
Walmart will not sell poisoned applesauce at their stores. It really is that simple — the same thing applies in the marketplace of ideas when idiotic misguided regulation doesn’t stop it.
The best products float to the top *because* they can crowd out the crap. They win in the market *because* people don’t put their money and effort behind losers and do put theirs behind winners.
This law is based on a fundamental misunderstanding of how markets (for either products or ideas) actually work when they are real, healthy markets. David Schwartz(Quote)
Buddy Hinton says:
I am surprised no one has thought of an answer to the Citizen’s United / McCain-Feingold problem. I have, and the answer is this:
Tax money spent on speech promoting political candidates and tax it at sharply progressive rates.
If one (a corporation, an individual) spends within current limits, make that tax exempt.
If one spends a few thousand over those limits, tax it at 40%.
Marginal rate at tens of thousands: 60%
Marginal rate at hundreds of of thousands: 80%
MR at millions: 95%
It is win / win and does nothing to violate the First Amendment. Money is speech, but it is also a special type of speech that is susceptible to taxation. And therein lies the solution. Buddy Hinton(Quote)
Martinned says:
I have no idea of what that even means. Or rather, I do, but only because I know about the world outside of economics as well. If you’re going to invoke metaphors like “marketplace”, it suggests you have an analogy with some economic model in mind. In my comments, I tried to construct such a model. (Though admittedly not very coherently, being constrained by the blog comment format and my own lack of ability.) “Mindshare” couldn’t be further from an economic concept. It’s psychology, pure and simple.
Now I’m not one of those people who say psychology isn’t science. It is. (It generates falisfiable hypotheses, etc.) However, you can’t just bring in this one concept and otherwise keep talking as if you’re doing economics. If you bring in mindshare, you are stuck with the whole crowding out argument as well. There is a vast amount of psychological theory and evidence about how people process information, and how their ability to do so changes in the face of more or less information, or information communicated differently. To the extent that I know about such research, I’d say the crowding out model offered above is a valid description of what might happen.
Most importantly, none of this backs up your claim that “crowding out is a perfectly legitimate speech tactic”. Your Wall-Mart example fails on its face: Wall-Mart doesn’t promote the best products, but only the products with the best profit margin. (Eye high, etc.) Moreover, in a perfect market, Wall-Mart would sell the full range of products, from super high quality to almost literally poison, each with an appropriate price. People with a low willingness to pay could accept a non-zero risk that they’re buying poison. (But now we’re back in real economics.)
Good ideas don’t magically float to the top. The question of which ideas float and which sink depends on the incentives of the players. In a perfect market for goods or services, everyone’s incentives are aligned. In an imperfect market, not so much. Please feel free to describe what the marketplace for ideas looks like anytime.
Probably no one has though of this because it would be an unconstitutional burden on the freedom of speech under Buckley v Valeo. Martinned(Quote)
Shane says:
Unfortunately, I know a lot of sheep who are dazzled by, and make their decisions according to what they see on tv. From both ends of the spectrum, be it conservatives with “death panels” or liberals with “Bush was a nazi”, (my lord, this is going to sound so elitist),this country is filled with people who either do not have either the intelligence, or pride to investigate what they hear or read for truthfullness; if it fits neatly into their sphere of belief, they will automatically believe it. That is what I fear with the SCOTUS ruling, unhampered smear campaigns like the swift boaters or what ever the liberals will now dream up. Shane(Quote)
speech fan says:
Great idea Buddy Hinton! If you don’t like something, but the Court says it’s constitutionally protected, then TAXING it can’t possibly be a problem!
I look forward to seeing Justices Stevens et al. upholding South Dakota’s abortion tax, along with mega-taxes on porn and contraception.
That was easy. speech fan(Quote)
Buddy Hinton says:
Porn is taxed, liquor is taxed even more and the plan I propose (that is, taxing large campaign comtributions at a steeply progressive rate) here is not like Buckley v. Valeo in the slightest. Buddy Hinton(Quote)
Martinned says:
I tried to reply to you earlier without using the kind of snark that speech fan used. But now you’re just asking for it. Martinned(Quote)
dcp says:
Taxing something at different rates based on the content of the speech is still a violation of the First Amendment, is it not? dcp(Quote)
Buddy Hinton says:
Frankly, I would rather have snark than a completely irrelevant case.
If you like the corrupting influence of big money in government, then, of course, you will hate my taxation proposal on politically motivated grounds. I have yet to see a real First Amendment objection to it. Way I look at it is this:
much fairer and better policy to tax large political contributions than my income. Buddy Hinton(Quote)
Dan says:
Martinned says:
Buckely establishes that direct and indirect political spending is speech. As a result, taxing it at a punitive rate is an unconstitutional burden on speech. Alternatively, as dcp suggests, your proposal could be considered content-based speech regulation, in which case it is again unconstitutional. (Unless saved by a compelling state interest, etc.)
Either way, the problem starts with the case that I linked. You’re welcome. Martinned(Quote)
Buddy Hinton says:
Punitive? Nonsense!
It is a simple matter of paying for what you are buying. Buddy Hinton(Quote)
Suzy says:
I guess I don’t understand, and perhaps someone can clarify, why it matters so much whether the corporations can use money from their “general treasury”, as opposed to other monies raised from their employees and others? I was not able to follow, when Pat said that the previous situation was restricting speech, “at the expense of the rest of us, who cannot afford to broadcast and disseminate our beliefs without pooling our funds and organizing collectively”, because I had assumed that people were already able to raise and spend funds collectively. They just weren’t able to use all the resources of the corporation in this effort; only what the individuals who were part of it had raised. Why isn’t that sufficient to cover the demand for unrestricted speech? I honestly don’t know. Suzy(Quote)
David Schwartz says:
The reason a market works is because these are the same things. The attributes that make a product the best also make it the ones with the best profit margins.
Perhaps, but with some way for purchasers to tell which is which. Walmart is not a neutral product access provider, it’s a market gateway, and part of its value is the fact that customers can determine certain attributes about a product simply by it being sold at Walmart. This is a market inefficiency from a theoretical point of view, but real-world markets will always contain market gateways because they add value by reducing transaction costs.
Perhaps, but then a lot of other people wouldn’t shop there at all because the extra cost of personal effort to make sure they’re not buying poison would make it easier for them to shop someplace else. That is, Walmart doesn’t just sell products at a low cost, it also filters products and that is part of the service it provides. This filtration is vital for an effective market.
If people complain to a supermarket that a product is simply unfit for the purpose claimed on the package, they won’t drop its price. They will drop the product. Part of the service they provide is filtering out the unsuitable products from the suitable ones. We don’t see this too much in the United States because laws already do a lot of this filtering. You pretty much can’t sell meat that’s unsuitable for consumption at any price. But if you did, supermarkets would build their reputation on either not carrying such products or clearly distinguishing them.
Since there can be no such regulation in the marketplace for ideas, market gateway functions are *vital*. They perform the quality control that is needed unless every single consumer is to become an expert in quality determination of every product. And that’s risky, dangerous, and people just won’t bother.
An effective real-world market requires that the companies that bring you products also help you distinguish the good products from the bad ones. It is ridiculous to argue that every consumer must personally bear the full cost of evaluating every possible product and should somehow be prohibited from being assisted in this function. Real-world middleman provide exactly this valuable service.
It looks like a dysfunctional and badly-regulated market right now. It’s equivalent to a marketplace for food in which there are no regulations against selling bad food and ‘must carry’ regulations requiring supermarkets to put poison alongside quality food and sell them at the same price with no distinguishing markings.
If you aren’t going to regulate a market for quality, and we sure aren’t going to do that for ideas, then you have to let companies position themselves as market gateways. Otherwise, the cost to tell the good from the bad allows products to be pretty darn bad and still be accepted simply because they’re not bad enough to overcome the cost of evaluating them accurately. David Schwartz(Quote)
Martinned says:
But how do you know that anyone has the incentive to do that? Remember, the peculiar thing about a market for information is that there is no way to verify it’s quality until after you’ve already bought it, and even then it still may be difficult. That’s why lawyers get paid based on whether they win, not based on whether they give good legal advice. (The former is used as a proxy for the latter.) Martinned(Quote)
David Schwartz says:
You are confusing the market for ideas with the market for content.
Look at the market for content. You can’t personally tell the quality of a movie until after you’ve bought it. What is the result of this peculiar circumstance? People rely heavily on movie reviews, opinions of friends, and the like. Theaters carefully control the movies they show to ensure they maintain a reputation. Laws to require Hollywood to make any script or movie theaters to show any movie would be obviously disastrous.
But the market for ideas is not like that. Consider two advertising campaigns for a candidate for President:
One makes a ten second ad “Vote for Joe”. That’s their idea, right? And they show it where it’s cheapest, in Canada. They expose millions of Canadians to the idea.
Another makes a sixty second ad that explains *why* you should vote for Joe. And they don’t show it where it’s cheap, they show it in swing areas.
Both campaigns cost the same amount and the second exposes far more people to the idea. But clearly one is much better than the other, and it’s not the first one.
The marketplace for ideas is a battle for mind share just as the marketplace for products is a battle for money share. It is all about presenting the idea in the right way to the right people such that they will “buy” it.
Introducing a person to an idea is akin to introducing a person to a product. That’s not the sale, it’s the precondition to the sale. David Schwartz(Quote)
Peter says:
Oren,
You don’t seriously think you are responding to the points, right?
The point is that shareholders are not using corporations to exercise their First Amendment rights as a factual matter. I have my money in money market accounts mangaged by Vanguard. As a result, I’m a shareholder in many publicly traded companies. I don’t even know what those companies are! I’m willing to bet that most people are like me.
Even the ones who are not like me (i.e., they know what shares they own and in which companies) aren’t using those companies to express their political views or otherwise exercise their free speech rights.
Furthermore, the corporate entity is created by law. Something that is created by law cannot have constitutional rights bestowed to people. It makes no sense. If the State of Maine passes a law saying dogs should be treated as people in every way, the Federal constitution does not suddenly bestow on these dogs free speech rights (or any other rights). It just doesn’t.
It’s shocking how conservative scholars (like the ones who blog here) are so interested in strict constitutional intepretation, except for the Second Amendment and the First Amendment (as applied to corporations). Straight up crazy. Peter(Quote)
Martinned says:
This, at long last, is an analogy that makes sense. (I still don’t quite follow the rest of your comment, but never mind.)
The problem is, of course, that Hollywood movies suck. By and large, Hollywood produces drivel, drivel and more drivel, and when they produce something good it gets released “in selected cities”, meaning that nobody gets to see it. If our political discourse (yours or ours here) were as bad as the average Hollywood movie, we’d be in pretty bad shape.
If the government had a sufficiently compelling interest in assuring that good movies get made, as opposed to the entertaining drivel that audiences actually want to see, they could make a law limiting the amount that could be spent on a single movie. That would have a positive effect on the total number of movies made, and presumably on the total number of good movies made, at the expense of making things like Avatar unlawful. (Haven’t seen it yet, so I don’t know if it is any good.)
Don’t get me wrong, the market for movies works reasonably well, but that is because the demand they satisfy is the demand for entertainment. They don’t focus on making good movies, but on making entertaining ones. That is a much simpler problem, because it is much easier to assess whether a movie will be entertaining than to assess whether it is good. Just checking Imdb usually tells me whether I’ll enjoy watching a certain movie. It certainly doesn’t tell me if the movie is good. (I think I’ll be OK with Avatar, though I suspect all the preaching about the environment and/or Bush will get old after about 30 minutes or so.)
So no, just like Hollywood produces entertaining movies, not good ones, a free marketplace of information would be entertaining, but not reliable. Fox News is the ultimate example: what they do is tell their audience what they want to hear. And they’re good at it, too. Fair & Balanced it is not. Reliable/good/filter even less. Martinned(Quote)
Oren says:
Political opinions are not analogous to babyfood, where there is some objective standard against which they can be judged. The value of a political opinion is instead identical to its acceptance by the populace.
Well, there are plenty of corporations whose purpose is to exercise first amendment rights. See, e.g. Wisconsin Right To Life, the ACLU, the NRA, ...
Moreover, even in a traditional for-profit corporation (e.g. not an advocacy group that is incorporated as a non-for-profit), you have delegated your right to speak (within the parameters of the charter and the relevant law of incorporation) to the management of the corporation. When they speak, they can do only so because you authorized them too — that is, the management of the corporation has no power but that delegated to them by the owners.
So much for New York Times v. Sullivan and Planned Parenthood v. Casey (both of the plaintiffs there are incorporated, mind you). Oren(Quote)
David Schwartz says:
I don’t agree, but ultimately is doesn’t matter. The Constitution and 1A demand a free market in ideas, if that doesn’t result in the best ideas rising to the top, that’s too bad. As I’ve argued, it works best without regulation so that market gateway keepers can filter out the crap. But even if you don’t agree, that mechanic is part of the marketplace for ideas.
The marketplace for ideas cannot work if the government declares an equality of access for both good and bad ideas. Controlled access is part of how real markets work properly.
You want Hollywood to make “good” movies, but Hollywood makes entertaining movies. 1A says the government doesn’t get to change the system, even if to make those movies it considers good.
We need Hollywood precisely because there is no central command way to promote the good. David Schwartz(Quote)
Martinned says:
OK, now you’re back to defending the Court’s interpretation of the first amendment by referring to the Court’s interpretation of the first amendment.
Ignoring, for the moment, the fact that no one’s arguing for a 100% totalitarian version of the fairness doctrine, the question remains: why not? Isn’t that the point of a jury trial, for example? There are two sides to the story, each party presents their best case, and perfectly ordinary citizens decide what the truth is. Traditionally, civil and criminal litigation only involves two parties, but there’s no fundamental reason why a jury can’t pick from three or more alternatives. If a jury, why not the American public?
Say what now? Depending on the circumstances, “controlled access” may well be a felony under the Sherman Act. Real markets work best with free entry and exit.
Now you’re begging the question again.
Who said anything about central command? The problem is political spending, not a system of declaring truth by government fiat. That we reserve for libel suits. Martinned(Quote)
Oren says:
As opposed to government fiat preventing people from telling (their version of) the truth? Oren(Quote)
David Schwartz says:
Right, but the Sherman act creates a looking glass version of free entry and exit. The Sherman act is based on the same misunderstanding of the goods market as the misunderstanding of the idea market the BCRA is based on.
A free market works because it creates obstacles to bad products. A free market in ideas works because it creates obstacles to bad ideas. This is done by people acting in their own interest — market gateway keepers lose their gateway role if their customers are unsatisfied.
The best ideas will not win if regulation guarantees equal access to both bad ideas and good ideas. It requires information gateway keepers to filter out the bad from the good and keep or lose their role as keepers based on how satisfied their customers are with their gateway keeping.
Otherwise we all lose out to rational ignorance, in both goods markets and idea markets.
In any event, it’s pretty clear to me that if the Constitution guaranteed any kind of freedom in commerce comparable to the freedom of speech, the Sherman act would be unconstitutional. David Schwartz(Quote)
Martinned says:
If you limit the amount any one person can spend, no one is prevented from telling the truth. They are only limited in how loudly they can tell it, something that is, in abstracto, justified if there is no likely connection between how loudly someone is speaking and the probability that they are speaking the truth.
So free entry and exit is bad?
No, it works because it allows an appropriate price to be negotiated for good and bad products alike.
I don’t remember off the top of my head whether this is true in the US as well, but over here the cheapest supermarkets are the ones where you literally have to get your groceries out of the cardboard boxes they arrived in. The store essentially looks like one big warehouse, and the only store employees are the people behind the cash register. On the other end of the spectrum you have your wholefoods, etc., with a wide range of products of high quality, etc. In the end, you get what you pay for. The reason why that is possible is that the competition laws forbid the giants in the industry from using their market power to prevent entry.
Example?
No. In imperfect markets, incentives are not aligned. (Any market for information suffers from moral hazard, for example. See above for my lawyers example.) In the news/information business, even perfectly aligned incentives would produce entertainment, not news.
Yes, that would be great. But where, other than in the imaginary world in your head, is that actually happening? Think about the golden age of newspaper publishing. William Randolph Hearst writing whatever he felt like to help the Democratic cause. He could do that, because his was one of two enormous newspaper conglomerates. These days, the same seems to be happening on US cable news. Newspapers today are forced by competition (i.e. reputation mechanisms, etc.) to be more honest. Free entry and exit in the newspaper business assures some measure of equality between newspaper publishers, which keeps them all (relatively) honest. But I probably don’t need to remind you that that only seems to be working to a limited degree for, say, the New York Times.
You do lose out to rational ignorance. In goods & services markets, customers have an incentive to get informed. However, that is not always possible, hence moral hazard, exploding health care costs, etc. In the marketplace of ideas, voters are rationally ignorant, as explained on this blog many times before.
There are no good solutions for that, but moderately good solutions include a republican form of government (i.e. no direct democracy), strictly enforced limits on what those elected politicians may do (i.e. a bill of rights with judicial review and — where appropriate — a system of conferred powers), highly competitive news media (to keep them all honest, i.e. to assure that all truths have the best possible chance of being voiced), a good, government subsidised education system (government intervention justified by the positive externality of having a well educated electorate, amongst others), etc.
That is true. It would also be a bad idea. Martinned(Quote)
Oren says:
(1) BiCRA would prevent Citizens United (and WI RTL, the ACLU, the NRA ...) from spending even a penny promoting or attacking a candidate within 60 days of an election.
(2) I see no justification in the First Amendment for limitations on the “volume” of speech (either volume in the sense of loudness or quantity). Oren(Quote)
Martinned says:
Oh, sorry, my bad. Throughout this thread (and others about Citizens United), I’ve argued that the Court got it right given the premise that political spending is protected speech. It’s that premise that the original post discussed. I have no interest in defending these provisions from BCRA as such. Companies and natural persons should have the same rights under the first amendment.
Well, that’s the problem with a bill of rights that is as short as the American one. As the wingnuts never hesitate to remind us, the first amendment, on its face, does not provide for any justification of any limitation of speech whatsoever. And yet such limitations exist, with the approval of the courts. The only way to sort such things out is to consider the degree to which the proposed measure would be consistent with existing precedent, with what we know of the intentions of the drafters and the political and legal culture of the founding era as well as, quite bluntly, whether such a thing would be a good idea.
This last point led mr. Schwartz and myself to a discussion of the phenomenon of the marketplace of ideas, a metaphor frequently invoked but — I think — poorly understood. (At least by me.)
P.S. I just quickly checked how this works under ECtHR case law. The relevant articles are article 10:
and article 3 of the first protocol:
Limits on campaign spending have generally been upheld under the heading “protection of the rights of others”. Cf. Bowman v. UK (1998), where the national law was actually struck down because it was found to fail the “necessary in a democratic society” criterion (it was found to fail the proportionality requirement):
Martinned(Quote)
David Schwartz says:
It’s not that simple. Free entry is sometimes good and sometimes bad. You need a free market to decide which, to what extent, and when. It cannot be done by central command.
Some free entry is good. If new good products can’t get to market, that’s bad.
Some free entry is bad. If new bad products can easily get to market and customers can’t easily distinguish them, that’s bad.
You need competition between open sub markets and closed sub markets to find the optimal level of ease of access. Walmart would not be better if they carried every product with no good way to tell the good from the bad.
The mistake, behind both the Sherman act and BCRA, is to misunderstand that open access to the market means that nobody stops you, not that somebody holds back everyone else. A level playing field, with the good and the bad having equal chance, is *not* ideal.
The point is not that the free market is good or bad (or operates perfectly or imperfectly), it is that there is no conceivable way central command can make it better. It has no advantage and numerous disadvantages. Most central command decisions are based on horribly confused understandings of what a “healthy market” is, in this case, the specific misunderstanding that a healthy market is equally open to both good and bad products and that therefore market gateway keepers are inherently bad. David Schwartz(Quote)
Martinned says:
OK, that makes absolutely no sense at all. You need a free market to decide when to have a free market? Huh???
What about quite simply more producers of the same product? Competition and all that...
I don’t know what this means, but I’m starting to wonder whether you do. What does “competition between open sub markets and closed sub markets” mean, specifically? Real world examples, please.
It is if you trust voters, like jurors, to recognise the truth if they see it.
I still object to you characterising my arguments as “central command”. Anyway, I’d like to point your attention to the FDA. It may have many flaws, but it is certainly better than having no FDA at all.
You’re still talking about those gateway keepers without explaining who you have in mind. MSNBC? Wall-Mart?
In a healthy market good products drive out the bad, or rather each of them gets the price/profit margin it deserves, through informed consumer choices. To improve that, we have labelling laws, various government agencies, truth in advertising laws and a variety of other ways to make sure consumers are more informed.
Of course, consumers have much more of an incentive to get informed than voters, but even they need a little help from lawmakers. Martinned(Quote)
Peter says:
Judicial Philosophies of the Conservative Members of SCOTUS:
“Stare decisis, when we agree; radical activism and overruling of precedent when we don’t.”
“The Constitution is to be interpreted narrowly and in its original context when we agree; we get to make up what it says when we don’t” (right to bear arms, corporate free speech, etc.)
“States rights when we agree; Federal dominance when we don’t” (Bush v. Gore)
“Always vote 100% in the direction of our personal political and religious views”
What hypocrites. How embarrassing. Peter(Quote)
Oren says:
Agreed. Existing precedent on content-based restrictions have always subjected them to strict scrutiny and I think it’s nigh-impossible to come up with a compelling government interest in restricting (any) political speech.
Wow, enough loopholes to sail a Carrier through in there. Let’s see how many notable 1A we could overturn with this monstrosity.
(0) New York Times v. United States — in the interest of National Security.
(1) New York Times v. Sullivan — reputation of others
(2) Tinker v. Des Moines — public safety
(3) Brandenburg v. Ohio — reputation/rights of others
(4) Hustler Magazine v. Falwell — reputation of others
(5) Cohen v. California — prevention of disorder
(6) Near v. Minnesota — reputation of others
(7) Texas v. Johnson — interest in Democratic society
(8) Miller v. California — protection of morals
(9) Reno v. ACLU — protection of morals
(10) Stromberg v. California — democratic society
(11) Yates v. United States — democratic society
(12) R. A. V. v. City of St. Paul — protection of the rights of others
(13) Landmark Communications v. Virginia — protection of judicial “integrity” / confidence
No thanks, I think I prefer the version that isn’t swallowed, wholesale, by these exceptions. Oren(Quote)
David Schwartz says:
Sure. Open sub markets generally will carry any product regardless of quality and make no attempt to distinguish them. A good example of an open sub market is “pricewatch.com”, your local mall, or the advertising in your local newspaper. People who shop at an open sub market know that they will find pretty much any product there, but they have to go to the extra effort of ensuring that product is suitable for its intended purpose. They can conclude very little merely from the fact that the product is available in that forum.
Closed sub markets, as part of the service they offer, filter what products are available. This may mean that if you want something more unusual, it’s not available. But the costs of rational ignorance are reduced by the filtration the market itself provides. Your local Walmart is an example of a closed sub market. High-end grocery stores are examples of even more closed sub markets. A product can command an extra price simply by virtue of it being carried by some sub markets, as the risk that the product won’t be suitable is reduced. Risk that you will be unhappy with a product reduces its effective value to you.
In a healthy free market, open and closed sub markets compete and closed sub markets compete with each other. A sub market the reduces risk can command higher prices because part of the hesitation in purchasing is fear that the product won’t perform as claimed.
Laws such as the Sherman act and BCRA utterly fail to understand that a truly open market is also open to closed sub markets. Access for bad products to sub markets *should* be worse than access for good products and attempts to “level the playing field” actually cripple the market.
A law that required your local supermarket to carry any product with whatever label the supplier wanted to put on it and prohibiting them from warning consumers away from crap would cripple the supermarket’s ability to command higher prices by abating consumer fears about product unsuitability. BCRA does this with speech, with similarly disastrous effects. David Schwartz(Quote)
Oren says:
While I’m absolutely no fan of BiCRA, it does not force any outlet to publish any speech whatsoever. Oren(Quote)
Oren says:
This is only true insofar as the price premium charged by the exclusive-retailer is comparable to the average consumer’s utility-gap from the “bad product”.
That is, even if the exclusive-retailers product is objectively better in some fashion, it might not be better enough to justify the difference in price. Oren(Quote)
Martinned says:
Agreed. But I don’t see why a cap on political spending should be considered content-based. For sure, it is political and not, say, commercial, but it does not distinguish based on what is being said, it does not favour criticism or praise, republican or democratic, or even between slander or detailed argument.
Thanks for the support on that one. I’m pretty sure I have tried to make that point at least three times now. Martinned(Quote)
David Schwartz says:
A law that said that newspapers who publish a daily official release from the Federal government are exempt from Federal income taxes doesn’t “force” any outlet to publish any speech whatsoever either, does it?
If the government prohibits particular companies from advertising, that doesn’t “force” consumers to buy their competitor’s products, does it?
If the government prohibits people who sell vitamins from truthfully mentioning the results of studies that show their health benefits, that doesn’t “prohibit” anyone from buying them, does it?
And my answer to all of these things is — *yes*. If you use force and it has the obvious and intended effect of causing X, then you forced X. If it prevents Y, which would have otherwise occurred, then it prohibited Y.
What possible purpose would BiCRA have it had no effect on who said what in which forum?! Whatever effect it has, it forces. David Schwartz(Quote)
Martinned says:
Does that go for actions by private parties, too? (That whatever effect I have on others, I force...) Is there really no basis on which to distinguish, say, between a tax on cigarettes and an outright ban? Martinned(Quote)
David Schwartz says:
Martinned: Is there really no basis to distinguish people acting in their own interest from people who are compelled by law to act against their own interests? Sure, there’s a difference in degree between a tax on cigarettes and an outright ban, and BCRA is much closer to the ban side. David Schwartz(Quote)
Oren says:
That is content-based (but viewpoint-neutral). For it to be content-based, it has to be defined without reference to the content of the speech — it must treat speech about toothpaste to be identical to speech about candidates.
Nope. Nor do I believe it qualifies as an unconstitutional condition.
No, they can go without the product in question. Such a law would be illegal for other reasons, of course (equal protection, freedom of commercial speech, rational-basis ...)
No, and since commercial speech is less protected than political, it har
Well, if you want to use the English language to communicate with other English language speakers, you should use words that we are likely to associate with the meaning that you intend. I did not understand what you were talking about and only now do I realize that you use the word ‘force’ to mean (variously) ‘induce’, ‘make-more-likely’, ‘dissuade’ and so forth.
Of course. It forces certain people not to speak on certain matters (and this is why I’ve been opposed to it).
What it does not do, however, is force a newspaper or any other media outlet to speak on certain matters.
Hence the difference between forcing people to quit and inducing them to quit. Oren(Quote)
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