Over the weekend, the WSJ published an interesting interview with First Amendment advocate Floyd Abrams on the Citizens United decision.
Over the weekend, the WSJ published an interesting interview with First Amendment advocate Floyd Abrams on the Citizens United decision.
The less deceived says:
There are an awful lot of journalists, as Abrams says, “that do not recognize that they work for corporations.” And other journalists who think they can depend upon what he calls “the largess of Congress to exempt it from regulations on speech that affect the rest of American society.”
So where’d they get that idea? Someone else, not Abrams, said that political journalism is a lot like a protection racket. And a few years back the McCain-Feingold act literally privileged them with a right the rest of us weren’t allowed. Journalists are exempt, according to journalists themselves, from the corruption everyone else is prey to. McCain-Feingold just codified the smugness and complacency journalists apparently already felt.
But journalists are competitors in the market-place. Just like everyone else. They don’t have any superior claim to monopolise and control the debate. Their cartel’s been broken. Now they want their friends in the Congress to help them out once again, and criminalise their competition. Again.
February 2, 2010, 8:06 amGeneral Disarray says:
For some reason that link only lets me see the first few sentences of the article. If you Google [floyd abrams the media and corporate speech], the first link will get you to the full article. (But when I try to copy that link here, it somehow ends up taking me to the abridged version.)
February 2, 2010, 10:06 amWordsmith says:
Free speech isn’t always free.
February 2, 2010, 10:46 amSuperSkeptic says:
Thanks for the google tip general disarray, I had no intention of paying and may now read.
February 2, 2010, 11:26 amBored Lawyer says:
IMO, Mr. Abrams hit the nail on the proverbial head. In any First Amendment case, if you rule on the side that what is at issue is protected speech, then you are always going to get some “bad” (meaning socially undesirable) speech). The reason we tolerate that because the alternative is relying on the government to decide which speech is “good” and permitted and which speech is “bad” and can be banned. Granting such power to the government is worse because that power can, and often is, abused.
Thus we allow the Nazis to march in Skokie and Klansman to march in Selma. We acknowledge that speech by Nazis and Klansman is a bad thing, socially. But the alternative — allowing local functionaries to ban parades they don’t like and allow parades they like (based on the content) is worse — that power can easily slip into tyranny.
The same thing applies to Citizens United. Yes, some big bad corporations will now spend money to put out advertisements directly attacking candidates for office. Yes, that will give them disproportional influence. But the alternative is worse — allowing the government to decide that, a hit piece on a candidate paid for by GE is bad (and a felony!) but a hit piece paid for by the NY Times or Fox News is good (or at least permitted) is a power we should not grant to the government.
February 2, 2010, 11:54 amMike says:
What was also interesting about this case is that it focused on corporations. When people think of corporations, they generally think of huge multi-billion dollar corporations, but in fact most of the corporations in this country are small corporations; small businesses. The law was excluding them from political free speech.
February 2, 2010, 12:04 pmJohn Dewey says:
It is frustrating that Democrats/Leftists have been able to focus the debate on such silliness as “corporate personhood”. Citizens United is not about rights of a corporation. As I explained in my letter to the Dallas Morning News:
“The Supreme Courts ruling in Citizens United vs. Federal Election Commission was not about rights of a corporation but about the rights of the citizen.
The First Amendment protects the citizen from a powerful government that would decide what speech the citizen may hear or read. It matters not whether the speaker is a person or a corporation. It’s the listener who is being protected from censorship.”
February 2, 2010, 12:15 pmyankee says:
If there’s any argument more nauseating than “but it’s for the children!” it’s “but it’s for small business!” Especially when small business is not actually impacted: the decision has no practical impact on small businesses, which lack the revenue and profitability to be taking out campaign ads. It affects the rights of nonprofit advocacy organizations and large publicly traded business enterprises.
Also, do you have any statistics for your claim about most corporations being small businesses? Some number of small businesses are sole proprietorships because the owners don’t want to pay for lawyers and accountants to discuss the impact of incorporation; others are partnerships or LLC’s. Conversely, aren’t a lot of corporations part of arcane subsidiary structures created for tax reasons?
February 2, 2010, 12:38 pmAdam J says:
John Dewey- come on, it’s pretty silly to claim that a listener is the one who benefits most from free political speech. Certainly the listener MAY benefit, but the speaker is the primary beneficiary of free speech. Just look at the market for political speech- a listener pays nothing to hear it, yet speakers often pay millions for ad space.
February 2, 2010, 12:43 pmyankee says:
Adam—that’s not entirely true, extraordinary numbers of people will pay good money for the latest book by Ann Coulter or Michelle Malkin. The reader is definitely not the one benefiting from that transaction though.
February 2, 2010, 12:51 pmAnonsters says:
Actually, it wasn’t. Read the law that was struck down. It regulated:
(That’s from page 27 of Stevens’ dissent.)
Not exactly a sweeping “ban” on speech. Which is why Kennedy’s obsessive use of the term “ban” is ridiculous, as Stevens pointed out at p. 23 of his dissent:
February 2, 2010, 12:54 pmAbdul Abulbul Amir says:
Have you not heard of trade associations? BTW election communications is not limited to mega-buck television ads. A local radio station ad is not that expensive.
The UK at one time in the fairly recent past used to have a number of small businesses offering pistolsmithing services. Should a pol in the US seek to similarly put those small corporations out of business you can bet they would speak up. And they should. The state should protect that right.
February 2, 2010, 1:05 pmAdam J says:
yankee- Granted, but that’s not the type of political speech we’re talking about here- rather we’re talking about direct advertisements for specific election candidates.
February 2, 2010, 1:09 pmDavid Schwartz says:
The speaker of any given piece benefits disproportionately, but the listeners benefit at least a little from each piece. Eliminating the forum significantly impoverishes the listener. For example, because companies are willing to pay for my ears, I get to watch TV for free. Each company benefits disproportionately from its ad, for sure. But I benefit massively from the fact that my ears have value and I control them.
When you’re thinking how little an individual listener benefits from a given thing he hears, don’t forget how little the speaker benefits from that one listener as well. It’s all from aggregation, and that cuts both ways.
February 2, 2010, 1:20 pmAdam J says:
Abdul Abulbul Amir- Lemme get this straight, you’re claiming that these anti-competitive non-profit organizations which represent an entire industry are “small business”?
February 2, 2010, 1:20 pmDavid M. Nieporent says:
The problem is, advocates of the law can’t have it both ways. It can’t be the case that it’s a very narrowly tailored law that bans only a few things and that overturning the law will lead to dogs and cats living together.
February 2, 2010, 1:26 pmBored Lawyer says:
It depends on whether the dogs and cats work for corporations or for the media. ;)
February 2, 2010, 1:30 pmJohnF says:
What I find very disheartening is this passage from the interview:
“Professor Neuborne argued that the potential for social harm due to the expenditure of large sums by corporate America was dangerous and worse—that it cannot be tolerated. . . ”
This is an argument offered as to why the Supreme Court blew it in Citizens United. That such an argument is even listened to as a basis for interpreting the Constitution is a very bad thing, and it infects Constitutional interpretation throughout the courts. If the Constitution does, in fact, preserve rights that are “dangerous and worse,” then by all means let us amend it. But whether the preserved rights are or are not “dangerous” in some one’s judgment does not help to provide an answer to whether the Constitution protects those rights.
February 2, 2010, 1:30 pmAdam J says:
David Schwartz – “The speaker of any given piece benefits disproportionately, but the listeners benefit at least a little from each piece.” Interesting theory, but how often do you feel you’ve ever received any benefit, whatsoever, from a political advertisement? Frankly, many (if not most) advertisements provide a detriment to their listeners as they tread the line between puffing and a deliberate misrepresentation of a candidate.
Also, I’m confused how you can claim that advertisements are of benefit to you when, as you put it, they are the price you pay for free television.
February 2, 2010, 1:42 pmGuest Again says:
Anonster. I don’t get it. You say that “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate” is not a ban? on free political speech? what is narrowly tailored about that? It seems to me that is the most basic free speech one could conceive of in relation to the 1st amendment. And M-F didn’t “regulate” it; a weasel word if there ever was one; it prohibited it under threat of criminal penalty.
February 2, 2010, 1:56 pmAbdul Abulbul Amir says:
A hypothetical trade association representing all of the pistolsmiths in the US would indeed be a small business.
February 2, 2010, 2:06 pmArthurKirkland says:
The legal point was a tough one. The Supreme Court has ruled (after what could be termed some unseemly procedural gyrations). The discussion now should relate to changing the laws governing corporations — the balance between special privileges and obligations of corporations (and, perhaps, of other limited liability forms) — instead of to the First Amendment.
Taking on corporate interests seems a winner to me, from a political perspective. Might we expect the legislative battles to develop soon?
February 2, 2010, 2:18 pmS says:
Whether the listener benefits or is, in fact, harmed is up to the listener, NOT you.
February 2, 2010, 2:30 pmRedlands says:
And if a number of small businesses, say those who were engaged in the same type of commerce, wanted to pool their resources to promote or oppose a candidate, what then?
February 2, 2010, 2:41 pmLarryA says:
How?
Before elections the national media come up with their list of “important issues.” Often they leave out issues I follow, and don’t consider the information I want relevant. A political ad by a corporation tells me, the listener, something the corporation thinks is important about the candidate. If that something is untrue it will immediately be refuted by the other side, giving me more information. If it’s not an issue I’m concerned about, I can tune out.
OTOH, by knowing what certain corporations consider important, I can tune in. The National Rifle Association and the Texas State Rifle Association are invaluable to me during election cycles. Also, knowing which corporations are for or against individual candidates often allows me to deduce even more information about them. Just the fact that the Violence Policy Center airs ads in favor of a candidate pretty much tells me what I need to know when I pull the lever.
See the National Shooting Sports Foundation.
Which “corporate interests” are you talking about? Are you saying GM and Nabisco should be restricted? Are you including the NRA and the VPC? What about the New York Times and the Washington Post? What about PajamasTV and the Huffington Post?
February 2, 2010, 2:49 pmDavid Schwartz says:
The money I earn at my job is the price I pay for satellite television. You wouldn’t argue that’s not a benefit to me.
It’s certainly a huge benefit to me that my eyes are sufficiently valuable that they get me free television. Anything that reduces the value of my eyes harms me. Fewer buyers for what I’m selling reduces the value of what I’m selling.
How is it anything but a negligible benefit to someone that I see their ad? It’s negligible all around until you add it all up.
February 2, 2010, 2:59 pmAnonsters says:
I don’t think I’ve ever been on the “opening the floodgates” bandwagon. Therefore, there are some of us who think the decision was wrong, revealed in a stark way how hypocritical Roberts is, etc., but who don’t think it portends corporate takeover of elections. Corporate money had already taken over the political process. In my opinion, anyway.
I guess you somehow missed the other five conditions that had to be met in order for the regulation to be applicable.
February 2, 2010, 3:19 pmloki13 says:
Um…. ever heard of the Constitution not being a suicide pact? The Court has performed this balancing many times- for example, your right to free speech ends at, inter alia, perjury, or selling nuclear secrets to the enemy, or (falsely) yelling fire in a crowded theater. You may disagree with that, but at the boundaries, “dangerousness” is a factor.
February 2, 2010, 3:43 pmloki13 says:
To add to that, we see this context in other areas as well. For example, the due process accorded to you when you are deprived of liberty is different in the context of a quarantine (public health) than it is in other areas.
February 2, 2010, 3:44 pmAdam J says:
David Schwartz – “The money I earn at my job is the price I pay for satellite television. You wouldn’t argue that’s not a benefit to me.
February 2, 2010, 4:10 pm” I certainly would argue that the price you pay isn’t a benefit to you. What I wouldn’t argue is that the price you pay is less valuable to you then satillite TV. That’s the beauty of free market exchange- it helps ensure you get more then you pay. But that doesn’t mean the price itself is a “benefit” to you.
“Anything that reduces the value of my eyes harms me.” That’s certainly not true in this context- false advertising laws decrease the value of the market that broadcasters make from advertising, yet they certainly help consumers such as yourself far more then this loss of revenue.
Adam J says:
LarryA- “If that something is untrue it will immediately be refuted by the other side, giving me more information.” I think you’re forgetting about the costs involved- one can’t simply “immediately refute” an untruth in the public stage- that’s the whole problem. In order to refute your adversary in an election, you gotta buy camera time… which doesn’t come cheap. Of course, someone else might be willing to buy it for you… if the price is right.
February 2, 2010, 4:22 pmloki13 says:
“If that something is untrue it will immediately be refuted by the other side, giving me more information.”
A lie can travel around the world while the truth is still putting on its pants.
You’re also forgetting that individuals don’t always make perfect decisions even when all the information is out there. See also, the recent posts about vaccinations.
February 2, 2010, 4:32 pmArthurKirkland says:
February 2, 2010, 5:29 pmGuest Again says:
Anonster. So you agree #5 is a 1st amendment violation standing alone, i.e. criminal conviction for political speech. Then its only a violation if its free speech on television or “satellite Communication” . Hmmm satellite communications… that is radio too I guess? But wait, there is still the traditional route – newspapers! So free speech in newspapers is o.k.? Right? Wait aren’t newspapers on the webby thing? does some of that come over the webby thing by satellite? or by a cable? I don’t know from reading the statute if that means newspapers are out too. Maybe the FEC has some guidelines that say its o.k. if it’s in a newspaper on the webby thing?? If they do, I notice most newspapers do have web sites that let you play a video clip so you can make your free speech orally and actually have it broadcast if its in a newspaper, well a newspaper website anyway? I mean a video on the web isn’t at all like a “movie” like those Hillary haters wanted to be a “broadcast communication.” Or oops, maybe a video is also a “broadcast communications.” Does it matter whether its on the newspaper web site or can it be “aired” on You Tube? Oh this is all so confusing…but I guess its really important if I don’t want to be a criminal when I exercise my free speech. So maybe you can or can’t put your free speech written or verbal in a newspaper or on You Tube?? The FEC will tell us won’t they.
But, Oh wait! #2! A small newspaper or even TV and satellite communication might be o.k. and your free speech won’t be criminal …if there are 50,000 or less in the “relevant electorate”. So its only BIG elections where your free speech is criminal. Well that’s a relief; that’s a nice way to “tailor” free speech: keep it small and mostly irrelevant. Don’t get me wrong it is important who gets elected dogcatcher. Free speech for small- less important, I guess, elections is O.K.!. I can live with terribly ineffective free speech except in really small elections in small towns. It makes sense, I guess. When the constitution was adopted 50,000 was a pretty big electorate so I guess that’s a pretty reasonable number the congress selected. They were thinking that if it was good enough for George Washington and John Adams, it was good enough for us today. Yeah, back to the good old days. Very nice of them to reach back to the founding fathers that way. So free speech is not criminal in really small electorate venues. I get it. And then again I can exercise my free speech as loud as I want for as long as I want but it won’t be criminal until day 30 or day 60 before the upcoming election. Gosh, that’s so reasonable and really won’t make my message ineffective because, heck we all know most people make up their mind well in advance of the election. Heck, I bet it’s only those stupid undecided people that won’t hear my message because, heck, they heard me 30 and 60 days ago and I didn’t persuade them then so it won’t matter if I waste my time and money on them. I wonder what the people that are running for office that I oppose are doing during that 30 60 day period? Were they pointing out that I had shut up and gone away? Did they air a bunch of outrageous stuff? that I can’t respond to? Well I suppose congress was real reasonable in saying my speech on day 61 was great free speech, but that same speech or its rebroadcast on day 60 was criminal. Yeah that makes a lot of sense, perfectly reasonable – not at all arbitrary or capricious. After all the two moon cycle (one moon for primaries) is an old indian tradition related to once in a blue moon. There is such an open and obvious, dramatic, difference between the free speech on day 61 from day 60 that I don’t understand how anyone could call that arbitrary. Why our whole economy operates on 30, 60, 90 day cycles. (The moon thing) Of course this makes sense. It had nothing to do with giving an uniformed electorate time to forget my free speech and everything to do with the moon cycle and protecting the electorate from have to listen to my stupid free speech. I should be ashamed of wanting to make them listen to my stupid free speech during the holy moon cycle. Of course my free speech became criminal when it entered the holy period.
Oh wait. I forgot to turn in my union card. Whew, my free speech is still free because I’m just a poor working stiff. Can’t be giving that Walter Reuther and Jimmy Hoffa a free speech microphone. Those communist b**trds. Good going congress, keep those union thugs out. They shouldn’t have a voice in an election ‘cuz they’re only for the working man; they don’t care about the important things and they will only want to elect people like them selves. Good job congress. Keep free speech for everyone else, but shut up them union guys because there’s plenty of history about their abuse of electioneering. They really know how to do it. So, yeah, congress exercise reasonable judgment to bar the unions. Oh, and while your at it, just to be even handed, bar the corporations too. They don’t have a track record like the unions of electioneering high-jinks but, heck, they have a lot of money and, you know, that’s inherently dangerous. So yeah, unions and corporations – give’m the boot. Very reasonable restriction. Send ‘em to jail if they open their mouth on day 60.
Well those are all pretty reasonable criminalizations of free speech. But just in case some fool thinks these are unreasonable restrictions on free speech,lets put an “out” in this legislation: if the free speech occurs on day 60 (or 59, i.e., during the moon cycle) and its broadcast (or rebroadcast) to 50,001 persons or more in the electorate and its by one of them union thugs or them badass corporations then lets not send them to jail if they don’t pay any money for the free speech or its broadcast. Yeah when it free of “general treasury funds” then its free speech, right? Free is free. So no crime there. And after all the airways are always free right before an election. The corporations and unions just have to have the communications companies give them free air time. No problem. Great thinking congress, that’ll really satisfy the constitutuion: free speech is not a crime if it is free. What could be more clear.
So yeah, you were right I didn’t really look at those other very reasonable restrictions that clearly demonstrate that free speech is criminal when its in the moon cycle and to more than 50,000 people and the networks don’t let you air it for free.
February 2, 2010, 5:45 pmBrett Bellmore says:
Why, yes: I’ve invariably heard it from people whose argument boils down to the notion that the Constitution, as written, IS a suicide pact, and as such we should violate it. Now, me, I think the Constitution really isn’t a suicide pact: It wouldn’t be the least bit suicidal to enforce it, every word and punctuation mark.
February 2, 2010, 8:44 pmAnonsters says:
Guest Again:
tl;dr
February 2, 2010, 9:13 pmDavid Schwartz says:
I don’t believe your counter-example works, nor do I believe any counter-example will work. False advertising laws, if they were effective in protecting consumers, would mean that advertisements would be more reliable, and consumers would likely rely on them more. This would increase the value of advertising, not reduce it.
February 3, 2010, 12:37 amAdam J says:
David Schwartz – “False advertising laws, if they were effective in protecting consumers, would mean that advertisements would be more reliable, and consumers would likely rely on them more. This would increase the value of advertising, not reduce it.” It would increase value, sure, but it almost certainly decreases the market and therefore the money to be made. Just ask cigarette companies, who have by and large bowed out of advertising. It will certainly makes advertisements more reliable and of greater value to consumers. But it also means bad products will be less likely to advertise, which decreases demand & therefore price.
February 3, 2010, 11:14 amDavid Schwartz says:
Adam J: Regardless, your argument is akin to refuting the claim that sugar damages teeth by imagining a toothpaste that contained a small amount of sugar. The sugar in the toothpaste still harms the teeth, the compensating benefit of the other ingredients doesn’t change that.
So even if this law does both benefit consumers and reduce the value of advertising, it doesn’t benefit consumers *by* reducing that value. It harms consumers by reducing the value of advertising, yet could have other compensating benefits that make it a net boon to consumers.
This doesn’t refute the claim that anything that reduces the value of advertising harms consumers. It just points out the obvious qualification that the harm is to the extent that it reduces that value and that it can, of course, have other compensating benefits.
February 3, 2010, 6:05 pm