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Cover Your Ears

Protecting democracy by protecting voters from clashing opinions

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"This ruling strikes at our democracy itself," President Obama declared on Saturday. "This ruling opens the floodgates for an unlimited amount of special interest money….I can't think of anything more devastating to the public interest."

The president was referring, of course, to the Supreme Court decision that last week overturned restrictions on political speech by corporations. Like most of the criticism provoked by the ruling, his reaction was long on outrage and short on constitutional interpretation.

Which is weird, because the Court was interpreting the Constitution—in particular, the part that says "Congress shall make no law…abridging the freedom of speech, or of the press." It is hardly a leap to conclude that Congress violates this injunction when it passes a law that, as in this case, prohibits an activist group from distributing or advertising a documentary close to an election because the film portrays a candidate in an unflattering light.

The closest that critics of the decision came to a constitutional argument was their claim that the First Amendment was meant to protect the rights of individuals, not the rights of corporations. As a New York Times story put it, they argued that the Court "committed a grave error in treating corporate speech the same as that of human beings."

For the record, I think intelligent extraterrestrials residing in the United States would be covered by the First Amendment. I am less sure about self-aware robots. But since the corporations at issue in this case are created and run by human beings, the Court did not need to address those issues. As Justice Antonin Scalia noted in his concurring opinion, "the individual person's right to speak includes the right to speak in association with other individual persons."

The 1990 precedent that the Supreme Court overturned in this case was based on the premise that the government has a legitimate interest in preventing "the corrosive and distorting effects of immense aggregations of wealth…that have little or no correlation to the public's support for the corporation's political ideas." Yet the vast majority of corporations do not enjoy "immense aggregations of wealth"; they are either small businesses or nonprofit organizations like Citizens United, the conservative group that brought this case. Furthermore, the anti-distortion rationale would allow censorship of rich individuals as well as newspapers, TV shows, websites, and books, since these are all produced by wealthy corporations.

Instead of addressing the merits of this dangerously misguided precedent, critics of last week's decision, like censors throughout history, worried that freedom of speech would have bad consequences. "It gives the special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way—or to punish those who don't," Obama warned. "Any public servant who has the courage to stand up to the special interests and stand up for the American people can find himself or herself under assault come election time."

It was a bit rich for Obama to bemoan the influence of "special interests" the same week Massachusetts voters expressed their anger over bailouts he enthusiastically supported, the week after he cut a deal that exempted union members from a tax everyone else would have to pay, around the same time he was bragging about a spending binge that has stimulated lobbying more than the economy, and in the midst of his attempt to salvage health care legislation backed by big corporations. In any case, democracy is a clash of interests, which we call "special" when we don't like the policies they support, and the election-time "assault" of Obama's nightmares is nothing more than public criticism of politicians.

Obama and other supporters of restrictions on political speech believe voters can't handle clashing versions of the truth, that they need to be shielded, in the name of democracy, from messages that would otherwise mesmerize them into doing the bidding of "powerful interests." The Framers thought otherwise, and that's why we have the First Amendment.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.

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  1. Good morning, Suki.

    I think all corporations with aspirations of using their resources for public policy advocacy should tack a “media group” or “communications” at the end of their names, and make sure to call their P.R. department “The Herald” or “The Times”. Problem = solved.

    1. Good Morning Fist of Etiquette! Good Morning reason!

      I think all corporations with aspirations of using their resources for public policy advocacy should tack a “media group” or “communications” at the end of their names, and make sure to call their P.R. department “The Herald” or “The Times”. Problem = solved.

      Thanks mister assault on our rights through creative wording. Why don’t we just leave the speaker alone unless they are committing some actual offense like slander?

      1. yahoo 4 suki. Fuck dat shit.

    2. You know, I always read your handle as Fisting Etiquette. Something is broken in my head, I think.

      1. Etiquette is such a slut.

      2. Perhaps, it’s not something in your head that is broken, rather something on your head.

      3. I guess I can’t have nice things.

      4. You only think something is broken in your head? Trust us, it’s all busted up in that joint, Warty.

  2. Former Justice O’Connor had some interesting comments on how this ruling might effect judicial elections in states that require judges to stand for competitive election on a regular basis.

    http://www.npr.org/templates/p…..=122993719

    Suki,

    I think states may begin to rework their libel statutes in response to this ruling. Which could set off another round(s) of court cases. Libel laws already vary greatly from state to state.

    1. I call on the United States Congress to enact legislation, perhaps calling it the Defense of Libel Act, to enforce a nationwide standard for libel. Individual states should not be permitted to differ from the Federal standard.

      1. I say let each State decide, and hence each business decide.

        Every other state will flow for loss of revenue.

      2. I call for truth-in-advertising laws on political campaign speeches. Fire the bastards if they default.

        Er… when, not if.

    2. Same way DC set to work right away trying to violate what the Supreme Court told them about their gun laws? Should have expected that.

    3. I’m just dying to see a legislature stand for re-election after passing a law giving itself special libel protections.

  3. “Any public servant who has the courage to stand up to the special interests and stand up for the American people can find himself or herself under assault come election time.”

    Coming a couple of weeks after negotiating a carve out for unions from his “Cadillac” Health plan tax, Obama has no credibility for resisting the insidous influence of the “special interests”.

    1. you sound physically burdened by snow. Shall we dig you out?

    2. It’s kind of the mother of false dichotomies, too. You’re either for “the American people”, or “special interests.” Right, because all the American people think exactly the same way and want exactly the same thing, while these special interests are composed not of American citizens, but of bug-eyed monsters from space. You know, for a guy who’s supposedly a good speechifier, Obama’s speeches lately have sounded like he just reached in the Big Bag o’ Political Cliches and grabbed a handful.

      1. Big Bag o’ Political Cliches – sound like something they should be selling next to the Cheetos. I like it!

  4. Obama has no credibility

    He doesn’t need it. His fans are all idiots, evil fucks who like how he lies to idiots, or evil idiots who think he’s lying to somebody else.

  5. Obama is a liar. Period. No different from Bush, Clinton, etc. Big Government rolls on … no matter what the pols say. And there is very little we can do about it.

    1. Meet the new boss, same as the old boss, eh?

      1. Pete Townshend.

        1. Get the h in there.

    2. They’re not lies. They’re in-progress promises.

    3. Obama is different from Bush. I speak as a conservative who complained long and loud about Bush’s big spending, big government ways.

      For all his faults, Bush put Roberts and Alito on the Court. If we had two Al Gore appointees, instead of Roberts and Alito, we wouldn’t be talking about this recent decision upholding the First Amendment.

      It’s actually hard these days to find people who don’t share Algore’s view that the Constitution should be viewed as a “living, breathing document,” subject to change at the whims of activist judges.

      The history teachers and history profs are largely to blame: http://historyhalf.com/judicia…..n-context/

  6. Coming a couple of weeks after negotiating a carve out for unions from his “Cadillac” Health plan tax, Obama has no credibility for resisting the insidous influence of the “special interests”.

    Indeed. Even if he was just another white president, his nose would be brown from his dealings with labor unions.

  7. Can we retire the term “public servant” once and for all? So-called “public servants” have comparable pay, better job security, and much better retirement packages than everyone else, so it’s more than a bit disingenuous to act as if they’re making a huge sacrifice serving the public.

    Oh, and pubic servants get their student loans forgiven after 10 years under Obama’s new plan, while the rest of you schlubs have to wait 20.

    1. I prefer the term “leeches.”

    2. I have no idea if you intentionally wrote “pubic servants”, but I like it nonetheless.

      1. I was a pubic servant!

        1. Yes, yes you were.

  8. And, of course, the ads put out by the political parties are completely truthful and a tribute to democracy.

    [cough][bullshit]

  9. Most Americans have little familiarity with the Constitution, let alone the history of Constitutional law, but I wonder how many of them realize that their paychecks come from a “special interest.”

    1. Or that each of them is a special interest. Usually there is a lobbyist on each side of an issue – creditor/debtor; vendor/consumer; powerbroker/mistress

  10. Oregon: Tax small businesses to bail out public sector pensions? YES WE CAN!

    Oregon has set aside its history of shooting down tax increases on statewide ballots, with voters endorsing higher taxes on businesses and the rich amid a brutal economic slump.

    Democrats in the Oregon Legislature made it as easy as they could for the voters to raise taxes on somebody else, and the electorate responded Tuesday by approving Measures 66 and 67.

    The increases approved Tuesday will hit people with taxable income upward of $125,000 ? estimated at fewer than 3 percent of filers. Many businesses who had been paying an annual $10 minimum will see that rise to at least $150.

    It was a victory for public employee unions who were the spearhead of the campaign for the taxes and raised enough money to outspend the opponents.

    A Common Cause analysis put their fundraising advantage to date at $6.85 million to $4.55 million in one of the state’s most expensive campaigns.

    “The bottom line is the unions bought the election,” said State Republican Chairman Bob Tiernan. “It’s going to be a sadder day as more businesses leave the state and more don’t want to come here.”

  11. Sullum argues that the first amendment protects free speech, period. But there are many laws restricting speech when it harms the public interest: falsely crying “Fire!” in a crowded theater, announcing secret troop positions during wartime, and so on.

    So the question is: does this harm the public interest? No, says Sullum, because most corporations are little guys. Which is asinine on many counts, but most fundamentally because it embraces the idea that one’s right to speech is synonymous with the size of one’s bank account.

    http://www.earthlab.net/#/p=210

    1. Generally, political speech does not qualify for the “yell fire in a theatre” exception to 1st amendment rights. If so, then sedition laws are constitutional; many people would argue that criticizing the government during wartime “harms” the public interest – so should that speech be curbed? You don’t think so because you have a different definition of something that “harms the public interest”. So think again, are you sure you want to make this argument

    2. I can’t fucking stand that old excuse about fires and theaters and shit. Threats, fraud, etc. are kinds of speech that include coercion or stealing, and thus directly harm people beyond the one doing the speaking. Speaking ones opinions about a political candidate does not fall under the category of force.

    3. How can it harm the “public interest” when in the end its the public who votes for the very politician the corporation or union advocates?

  12. Yeah buddy, I would have to say you got that right

    RT
    http://www.online-privacy.int.tc

  13. But there are many laws restricting speech when it harms the public interest: falsely crying “Fire!” in a crowded theater, announcing secret troop positions during wartime, and so on.

    You seem to think that because prohibited speech that causes immediate harm can be limited because it “harms the public interest.” I suggest that this is quite a leap from a relatively narrow set to a very broad and vague one.

    1. Yeah, is anyone else besides me sick and tired of hearing the “but you can’t yell FIRE in crowded theater” line when a discussion about free speech comes up? Also when someone uses language such as “harms the public interest” to stifle speech, I cringe as my mind envisions soviet style political censorship.

      1. is anyone else besides me sick and tired of hearing the “but you can’t yell FIRE in crowded theater” line when a discussion about free speech comes up?

        YES !!

      2. We’re working on Soviet-style political censorship, but even My abilities are not quite godlike.

        Yet.

      3. HELL YES.

        I just posted something along these lines in direct response to that tard’s comment before I bothered to read this.

  14. Brandon, please explain to me who is to determine what a Corporation is. Why is Citizens United a corporation and The New York Times not? If Citizens United had changed to movie to a dramatization (fictionalized) would that be all right? If not, then can we start censoring Hollywood movies? What if NBC bought the original movie and aired it themselves? Who draws the lines and where do you stop? One of the stupidest things Liberals do is change the rules when they are in power not thinking far enough ahead to realize it might come back to bite them in the ass (Exhibit A: Massachusetts special Senate election). A second big problem with liberals is that they, like you, somehow are immune to things like ‘Corporate Speech’ but the rest of the population, not being as wise and intelligent as you are, needs to be protected. I suggest you educate yourself by reading J. S. Mills On Liberty and then come back and rejoin the discussion when you have something intelligent to bring with you.

    1. in response to one of your points:

      ‘A second big problem with liberals is that they, like you, somehow are immune to things like ‘Corporate Speech’ but the rest of the population, not being as wise and intelligent as you are, needs to be protected”‘

      The merits of the debate, and the legislation that the court struck, down does rest on whether the electorate is ‘susceptible’ to corporate speech and in need of protection.

      The issue is about corruptive influence.

      If company A supports person B in their campaign, person B, if elected, is more likely to favor company A.

      As long as there are politicians willing to accept company money or support during an election, and companies willing to spend money in support of candidates, the corruptible influence and quid pro quo scenarios exist.

      It is irrelevant if a company’s expenditure helps the candidate.

      As a secondary issue, you imply that many (or most) of the electorate is not susceptible to corporate speech and therefore a company’s expenditure is not beneficial to that end. I would contend that companies spend on elections and candidates accept their money, because it is mutually beneficial.

      1. So, does this mean that you support censoring the New York Times? The Wall Street Joural? The Economist?

        They all write at length about the merits of different politicians and policies at all times of the campain cycle.

        Surely that influences the outcome of the election. So why is that not a problem?

        Note that claiming that “they are press, so they are OK” does not get you out of hot water. Who decides which group is press and which is not? If the answer is the government (court, Congress, bureaucracy, whatever) it violates the Freedom of the press. And what if, for instance Exxon-Mobile buys the Chicago Tribune? May they then write whatever they want, even thought they couldn’t before?

      2. As long as the politician has the power to favor Company A and regulate to death its competition, the money will find that politician no matter what laws there are against political speech, lobbying, or bribery.

      3. But it’s okay if YOUR party does it, right, joe?

    2. “Brandon, please explain to me who is to determine what a Corporation is. Why is Citizens United a corporation and The New York Times not?”

      Exactly! NBC is owned by GE, GE is heavily invested in green tech and NBC and MSNBC most especially were outright cheerleaders if not sycophants for Obama last election.

  15. The problem with limiting political speech because it may harm the public interest is that the political party in power gets to decide what is harmful.

    What I find more than a bit amusing is that President Obama, in supporting limits on political speech, it essence admits he cannot adequately counter arguments from his political opponents — he needs Mother Government to protect him from those big bad corporations.

    President Obama, like many politicians, believes the plebes cannot listen, think and decide for themselves whether an idea has merit. In truth, an idea’s merits can only be discerned in the crucible of public debate.

    In a period when the current government seems to be working so badly I want to hear ALL ideas, no matter how outlandish or ridiculous. One can never know when or where genius will strike.

    1. “The problem with limiting political speech because it may harm the public interest is that the political party in power gets to decide what is harmful.”

      WIN!

      …and this is necessarily the crux of the matter

    2. “President Obama, like many politicians, believes the plebes cannot listen, think and decide for themselves whether an idea has merit. In truth, an idea’s merits can only be discerned in the crucible of public debate.”

      Typical dime-a-dozen progressive group think. Its why progressives feel they need to perfect the human being and why they know best for all how they should live their lives etc…

  16. I’m not quite sute why progressives are so horrified.

    The group in question was clearly not a corporation, but a group of activists who *happened* to get corporate money to fund their movie.

    Are we going to ban anyone who is politically active from accepting corporate donations to help fund their activities? That would certainly crush a heck of a lot of political speech. I hardly think of any activist group of significant size that does not accept corporate donations of some kind.

    Ruling against Citizens United would effectively have prohibited even groups like Amnesty International from saying anything in the closing days of an election.

    Just because your group accepts money from a corporation does not imply that your speech is “corporate speech”.

  17. Reason.com does a disservice to itself by addressing the issue with superficial rhetoric.

    Reason.com would do well to make this issue less about Obama or democrat ideology vs. republican ideology.

    The ruling specifically overturned a 1990 decision by the US supreme court. That 1990 decision was upheld in other rulings. Last week’s ruling had a 5-4 split of votes. Those facts alone should indicate that the legitimacy of constitutional arguments on either side of the debate are questionable. Certainly no where near as cut and dry as you seem to imply.

    The ruling overturned republican and democrat initiatives alike, derived from a long history in our country to limit potential corruptive influences in our elections.

    You find it ‘rich’ about the apparent inconsistency of Obama’s view on the issue, by way of the fact that he is a politician. Because in your view, someone functioning in a system where there are obvious examples of corrupting influences (Unions and health care lobbyists – in your present example), is unable to create legislation beyond his/her own self interest or the interest of the corrupting influence. Position-neutral campaign finance rules are not even a hypothetical reality in this view, unless they are created to favor one side or the other.

    Corruption begets more corruption.

    What a cynical and unworkable conception of our government; an endless cycle, where we’ll all pay with our liberty.

    1. This has been addressed above, but….
      the crux of the matter is the government deciding which influences are “corrupting” as you put it, and which are not.

  18. While media or political critics may be speaking from emotion, you can find criticisms based on the Constitution by reading the dissent in the opinion. It is a long opinion and dissent and I haven’t had a chance to digest or analyze it all, so won’t yet make a judgement as to which side makes the best argument. So there is Constitutionally based criticism out there, you just need to be willing to look for it and at it.

  19. “they are either small businesses or nonprofit organizations like Citizens United, the conservative group that brought this case.” Funny…those things called facts, aka SMALL groups called corporations that get denied commenting on…elections!

    On the other hand, I was a virgin when I started reading reason…uh, I am still a virgin. But all the filth, perversity, obscenity, smut and free thinking on this site has totally corrupted me. Censorship would have saved me from a dissolute life of thinking about…freedom…and that Reason girl in the tight, tight t shirt.

  20. Sorry about that shirt… there it goes. Better now?

    1. Now you’re not wearing the t shirt!?!?
      I’m gonna faint!

    2. Pictures. Or it didn’t happen.

  21. “For the record, I think intelligent extraterrestrials residing in the United States would be covered by the First Amendment. I am less sure about self-aware robots.”

    If the robot was made by an intelligent being, then the robot is basically a media for speech by the person and should be protected by the first amendment and possibly second amendment.

  22. Sullum argues that the first amendment protects free speech, period. But there are many laws restricting speech when it harms the public interest: falsely crying “Fire!” in a crowded theater, announcing secret troop positions during wartime, and so on.

    In neither of those cases is some nebulous and ill-defined “public interest” harmed, rather specific people are put in mortal danger.

    Falsely shouting fire in a crowded theater is a crime a gross negligence (and a tort as well), and exposing troop positions to the enemy is the same unless it is treason.

    Crimes with specific victims subjected to specific harm.

    Arguing for a particular political position is a beast of a different stripe. Who would you allege is the victim, are what harm is done? It can’t be the guy who ended up not getting his way, or every policy decision that was not unanimous would require hunting down the criminals who opposed it.

    There is under every claim that some act should be illegal because it “harms the public interest” an assumption that the person making it can always identify the side of the angels. Well, if you have found this paragon, why do not support making her dictator?

    I’ll tell you why: because you have found no such person.

  23. Well, I don’t know about you folks, but esp. even at the reduced cost of only $395.99, Nashville is looking good. I here they too will have a special free speech zone… somewhere around Memphis.

  24. “No one would argue, for example, that because a corporation is not an individual, the Fifth Amendment’s protection against the taking of property without just compensation doesn’t apply to it, or the Fourth Amendment’s protections against unreasonable searches and seizures. How can corporations be entitled to some of the protections in the Bill of Rights but not others?”

    http://www.realclearpolitics.c…..00113.html

  25. In democratic societies like the United States, the voting process is a means by which citizens hold their government accountable, conflicts are channeled into resolutions, and power transfers peacefully. Our system of representative government works only when honest ballots are not diluted by fraudulent ballots. When elections become corrupted, democracy becomes threatened.
    The FBI has a limited role in ensuring fair and free elections in the United States. Election crimes become federal cases when:
    The ballot includes one or more federal candidates;
    The crime involves an election official abusing his duties;
    The crime pertains to fraudulent voter registration;
    Voters are not U.S. citizens.
    First Name: kenyan born at the white house
    Last Name: TRUTH
    Address: AMERICA
    Address: INPEACH OBAMA
    City: USA
    State: usa THE END OF AMERICA
    NPR archive describes Obama as ‘Kenyan-born’
    Michelle say Barack born in Kenya
    Obama’s grandmother say he was born in Kenya
    Subject: OBAMA SAID approval ratings are still very high in the country of my birth.
    Message: INPEACH OBAMA TO THE WEAK-KNEED REPUBLICANS AND DEMOCRAT
    obama people have no idea of the extent to which they have to be gulled in order to be led.” “The size of the lie is a definite factor in causing it to be believed, for the vast masses of the nation are in the depths of their hearts more easily deceived than they are consciously and intentionally bad. The primitive simplicity of their minds renders them a more easy prey to a big lie than a small one, for they themselves often tell little lies but would be ashamed to tell a big one.” “All propaganda must be so popular and on such an intellectual level, that even the most stupid of those towards whom it is directed will understand it. Therefore, the intellectual level of the propaganda must be lower the larger the number of people who are to be influenced by it.” “Through clever and constant application of propaganda, people can be made to see paradise as hell, and also the other way around, to consider the most wretched sort of life as paradise. “pelosi don’t see much future for the Americans … it’s a decayed country. And they have their racial problem, and the problem of social &^% …obama feelings against Americanism are feelings of hatred and deep repugnance … everything about the behaviour of American society reveals that it’s half &^%, and the other half &^& How can one expect a State like that to hold TOGTHER.They include the angry left wing bloggers who spread vicious lies and half-truths about their political adversaries… Those lies are then repeated by the duplicitous left wing media outlets who “discuss” the nonsense on air as if it has merit? The media’s justification is apparently “because it’s out there”, truth be damned. State: *usa Obama chuckles at America*
    If YOU PASS THE NORTH KOREAN BORDER ILLEGALLY YOU GET 12 YRS HARD LABOR, YOU PASS THE AFGHAN BORDER ILLEGALLY YOU GET SHOT. Under the Mexican law, illegal immigration is a felony, punishable by up to two years in prison,There is no immigration allowed in China, India, Bangladesh, Russia, Japan, Cuba, Saudi Arabia, Iran, Syria, Turkey and MOST other countries YOU PASS THE AMERICAN BORDER ILLEGALLY YOU GET A JOB, DRIVER’S LICENSE, ALLOWANCE FOR A PLACE TO LIVE, HEALTH CARE, EDUCATION, BILLIONS OF DOLLARS SPENT SO YOU CAN READ A DOCUMENT. WE CARRY PASSPORTS IN OTHER COUNTRIES OR FACE JAIL TIME. REPOST THIS IF YOU AGREE!! ((STOP COMMUNIST OBAMA)) THE COMMANDER

  26. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight…the Bible’s books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on…the Bible’s books were written by people with very different mindsets…in order to really get the Books of the Bible, you have to cultivate such a mindset, it’s literally a labyrinth, that’s no joke.

  27. I mean, er, awesome thoughts, Liz – I need some time to think about this!

  28. Intelligence agents arrested the president of Venezuela’s only remaining independent television station on Thursday, leading to concerns that freedom of speech …

  29. they argued that the Court “committed a grave error in treating corporate speech the same as that of human beings.”

  30. We’re working on Soviet-style political censorship, but even My abilities are not quite godlike.

  31. Commonly, driving Car political conversational won’t are eligble for that “yell hearth in the theatre” exemption to Very first change rights. If so, then sedition regulations tend to be constitutional; lots of people would state which criticizing the government during wartime “harms” the population fascination : so must which conversational end up being curbed? You don’t consider so due to the fact you have a several distinction regarding some thing which “harms the population interest”. So consider once more, are you convinced you want to help make this specific discussion.wolves gray

  32. ranging from cameras plus camcorders to computer spare parts and game playing consoles.

  33. what the heck is he speaking about? he was not even all over the place near the institution if this stuff was taking place.

  34. it is getting to be authorized to fester for your previous 40 many years.

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