Free Speech, Democracy, and Citizens United

NPR's This American Life recently discussed corporations and the First Amendment in the wake of the Supreme Court's Citizens United decision. Among the legal experts that the show quoted was Pacific Legal Foundation attorney Timothy Sandefur, who has a great post inspired by his appearance:

After my comments [on This American Life], a law professor is quoted saying that "conservatives" have "turned the First Amendment into democracy's foe." I think this is a very revealing comment, for two reasons.

First, the view that the government should censor the speech of people who do business in the form of corporations is rooted in the idea that free speech is an instrumental good that serves "democracy." That is the Progressivist interpretation that sees "democracy" as the central value of the Constitution, and sees individual liberty as a privilege that is created by the government in order to promote "democracy." This is the opposite of the view of the Constitution's authors: they believed that the fundamental constitutional value was liberty, and that democracy existed only to serve liberty. That's why the first sentence of the Constitution declares that liberty is a "Blessing," and why the Constitution goes on to impose serious limits on democracy. In their view, speech is protected because individuals have the right to express themselves--not because speech has a relationship to democracy. Obviously they understood that free expression was good for democratic decision-making, but their primary concern was protecting the rights of individuals, not with preserving some vague conception of "democratic society."

Read the whole thing here.

Comments

[R C Dean]

Totally agree. I will be using that insight, I assure you.

The privileging of democracy over liberty explains much of the corruption of our Constitutional rights via the doctrine of extreme deference to Congress-as-the-instrument-of-democracy.

[JW]

Indeed. democracy is little more than speech exercised once per year at the ballot box. Yet, this form of speech is somehow superior to all other speech made on the other 364 days of the year.

[Ziggy]

"That is the Progressivist interpretation that sees "democracy" as the central value of the Constitution, and sees individual liberty as a privilege that is created by the government in order to promote "democracy." This is the opposite of the view of the Constitution's authors"

That is spot on, great comment.

[Abdul]

I listened to that podcast this morning. It's surprisingly well-balanced and entertaining for legal analysis.

[Marc]

That is frigging eloquent.

[John]

"That is the Progressivist interpretation that sees "democracy" as the central value of the Constitution, and sees individual liberty as a privilege that is created by the government in order to promote "democracy."

He almost got it right. The last clause should read:

"and sees individual liberty as a privilege that is created by the government in order to promote "progressive policies."

The Progressive are interested in results and by extension political power. The value of liberty, democracy, and really even people themselves is, in the progressive world view, entirely determined by their contribution or lack thereof towards the end of progressive political power.

[Isaac Bartram]

I'm still a little confused. I understood that the Citizens United decision merely overturned the section of McCain-Feingold (aka the Incumbents' Reelection Guarantee Act) dealing with speech by groups not connected with the campaign close to elections.

As such, would it simply not have restored status quo ante 2002? A time which, I seem to recall, already a had a hella lot of restrictions on speech and political contributions by corporations, all of which, unless I've just plain got it wrong, are still very much in sffect.

[PapayaSF]

What I don't get: all the people who oppose this decision and hate "corporate political speech" make an exception for news corporations because they are "the press." Well, in what sense is a group of people organized as a corporation to make a documentary about a candidate not "the press"? I fail to see the essential difference between Citizens United and the NY Times or The Nation or whatever.

[Big B]

"I fail to see the essential difference between Citizens United and the NY Times or The Nation or whatever."

As did the SCOTUS.

[Colonel_Angus]

As did 5/9 of the SCOTUS.

[Big B]

?

5/9, 6/9, 7/9, 8/9, 9/9. It matters not. SCOTUS rulings are SCOTUS rulings.

Its like saying you "lost a close game." You still an "L" in the right hand bracket.

[MJ]

That's true, but it is worrisome that 4/9 had no problem with restricting speech.

[lukas]

That was not the Court's rationale for overturning the law.

[Captain Awesome]

"The Press" are imagined to be aiming at a bias-less ideal. Other corporations not being beholden to such limitations.

In their minds this means they will lie cheat and steal for their own ends, and magically "the press" will not.

[Sal Paradise]

Well played, sir.

*golf clap*

[JW]

That is the Progressivist interpretation that sees "democracy" as the central value of the Constitution, and sees individual liberty as a privilege that is created by the government in order to promote "democracy." This is the opposite of the view of the Constitution's authors: they believed that the fundamental constitutional value was liberty, and that democracy existed only to serve liberty.

Hence, that pesky and very hard to grok term: "no law." Kinda stops democracy in its tracks, donchathink?

[MNG]

"Hence, that pesky and very hard to grok term: "no law"

Of course noone in the majority thinks that "no law" abridging speech can be made. Stevens pointed that out by quoting C.J. Roberts that SCOTUS has always rejected an absolutist view of the 1st.

[Graphite]

If no one in the SCOTUS majority thinks that "no law" can be made abridging speech, they need to take some fucking reading lessons.

Shouting "fire!" in a crowded theater is not a form of speech: it expresses no opinions and conveys no meaningful ideas, and places people in immediate and pointless harm besides. Name one corporate political ad that would do the same.

[Captain Awesome]

It is a form of speech, the words-coming-out-of-your-mouth type. However, it is fraudulent, provided there is no fire. In which case you should be held liable for the damage caused by your willful misleading of the theater attendees.

[JW]

Sounds like Roberts' problem then.

Personally, I'll go with Justice Hugo Black, who was an absolutist on the 1st. He seemed to understand the meaning of "no law."

[MNG]

This is all so silly. Congress should just withhold some federal funds from states that do not write their state corporation laws so that management must get, say, 2/3 shareholder approval before any expenditure of their money on political campaigns. End of controversy.

[John]

They could probably do that. They won't because only the tinfoil hat liberals really are that threatened by the concept of free speech.

[R C Dean]

Once again, the Progressive disdain for democracy that disagrees with its goals is on display.

MNG's proposal, aside from being an absurd intrusion of the state on the business of corporations (2/3 vote to run an ad, but only 51% to dissolve the corporation). . .

shows contempt for democracy at the state level by having the feds strongarm the states into doing something even though there is apparently little grassroots support for it.

[MNG]

An "absurd intrusion of the state on the business of corporations?" WTF? Corporations are state creations. That's like saying that instant replay is an intrusion onto NFL teams and players business of football...

And a proposal to require the consent of the people's whose money you are using shows a disdain for democracy?

This is bizarro-land...

[Graphite]

And a proposal to require the consent of the people's whose money you are using shows a disdain for democracy?

But why 2/3? Or are you also a fan of the 2/3 supermajority requirement that has made California "ungovernable"?

[Graphite]

And a proposal to require the consent of the people's whose money you are using shows a disdain for democracy?

But why 2/3? Or are you also a fan of the 2/3 supermajority requirement that has made California "ungovernable"?

[Colonel_Angus]

I wonder if he also approves of the 60-40 supermajority in the senate.

[Big B]

I think Congress, both branches, before it spends any part of my money, should have to reach a 2/3 in a vote.

That would result in some fun outcomes.

[Colonel_Angus]

Corporations are not state creations. Individuals create corporations, the state imposes itself in them.

"And a proposal to require the consent of the people's whose money you are using shows a disdain for democracy?"

This is already covered through voluntary contracts, shareholders are responsible for making themselves aware of the terms of investment, and are free to negotiate new terms with other investors or sell their share if they don't approve of the decisions.

[highnumber]

Corporations are not state creations. Individuals create corporations, the state imposes itself in them.

This strikes me as sort of like saying that a garden is not made by people, it's made by plants.

[R C Dean]

Bizarro-land is

(1) saying that it is democratic to have the federal government impose a requirement on the states regardless of the wishes of the voters of that state.

(2) saying that it should require more shareholder votes to run an ad than to dissolve the corporation.

(3) saying that, because a state performs the ministerial task of accepting corporate formation paperwork, that it has plenary power over the corporation.

[Mad Scientist]

Corporations are state creations in the exact same way that marriages are state creations. Shall we now say that single couples may make political contributions but married couples cannot?

[PapayaSF]

And union management must get 2/3 member approval before any expenditure of their money on political campaigns?

[MNG]

Sure, unions already have regular elections of leadership who make these decisions. I'm totally fine with that Papa.

[Andrew S.]

Corporations also have regular elections of leadership who make these decisions, you know.

[PapayaSF]

Yes, MNG, you're pulling a switcheroo there.

[JD]

Define "political campaign", especially in light of the fact that the Supreme Court case came about because of a movie. Also keep in mind that in many small corporations, shareholders are the management.

[Big B]

Next, MNG will be complaining because, "well, its not fair because the Ford family controls 51% of the voting interest, so its too easy for them to get to 2/3."

And he ignores the NY Times needing 2/3 for editorials, or the difficulty in even comprehending a system where shareholders would vote on a specific ad or stance that isn't finalized until days before its release.

Or, as you mention, that Citizens United involved a MOVIE, not a donation to a campaign or a TV advertisment.

[Big B]

I agree. The NY times should get 2/3 shareholder approval before writing an editorial about politics, endorsing candidates or writing about anything in the politica realm.

Oh, and unions should to the same.

[Colonel_Angus]

Again with this obnoxious shit?

[Zeb]

That is just plain silly. If you don't like what a corporation you own shares in does, you sell your shares. Or if you are a large shareholder, you might be able to influence the management more. That is the recourse you have. You want it run the way you want it, start your own fucking company. No one says you have to buy or keep shares in any particular company.
You people who object to this decision need to get the fuck over it and stop with your ridiculous arguments. This is clearly a correct decision to anyone who can read English. I have never in my life seen a more obviously correct SC decision. To claim otherwise is to be a dishonest little turd.

[MJ]

The resident liberal throws federalism as well as free speech under the bus. Nice.

[MNG]

It's not just "Progressivists" that might think corporate speech can be limited. People should read Rehnquist's dissent in Bellotti if they think that foolishness. It's a very conservative opinion in every sense of that word.

[R C Dean]

MNG, do you see any limits at all on state control of the conduct of private businesses?

[Graphite]

INNURSTATE COMMERSE CLAUZE!!!!

[Graphite]

INTERSTATE COMMERCE CLAAAAAUUUUUSSEEEEEE!!!

[Captain Awesome]

1. The feds regulate interstate commerce.
2. Campaign speech is an attempt to alter the make-up of the federal gov.
3. Therefore, political speech has a substantial effect on interstate commerce and can be regulated by the feds.

[Paul]

It's not just "Progressivists" that might think corporate speech can be limited.

You are correct. Ed Meese, for instance thought that the Porn industry needed censoring and... at that time, liberals were more on board with the whole first amendment "thing". Ahh, times gone by...

[Aaron Bonn]

James Leroy Wilson also had a great take on free speech and Citizens United over at The Partial Observer. The gist of it is that its not the speaker that is protected but the speech itself. That means that, in addition to the speaker having the right to say it, I have the right to hear it. Thus, when Congress chooses to violate the First Amendment and limit a person or corporation's right to speak, they are also, in effect, collectively violating everyone else's right to hear what they have to say.

http://partialobserver.com/article.cfm?id=3411

[Lamar]

Funny how the liberals say this ruling is the end of democracy, but the first paragraph of the dissenting opinion makes it clear that the law only affected speech made less than 30 days before an election, and that the decision was more about which pot of money the funds came from. In essence, the dissent argued that this law everybody thinks will ruin democracy didn't really do much to start with. Of course, this analysis discounts the vast hordes who (1) don't have views and can't make up their mind more than 30 days out, (2) must sell their vote to a corporation and (3) hate democracy.

The really dumb thing about these liberal bogeys is that the Hillary movie in question was a "preach to the choir" piece and not very persuasive.

[Josh Buckner]

Here's what I don't understand:

If the Supreme Court had instead decided against Citizens United, how would that restrict personal liberty? The individuals who comprise corporations (shareholders, executives, employees) are still free to exercise their right to political speech using the same methods as everybody else; they could donate their own money to candidates, participate in rallies, write letters, and purchase ads.

I'm not seeing how a reversal of this SC decision would restrict individual liberty. What am I missing here?

[Lamar]

"If the Supreme Court had instead decided against Citizens United, how would that restrict personal liberty? The individuals who comprise corporations (shareholders, executives, employees) are still free to exercise their right to political speech using the same methods as everybody else; they could donate their own money to candidates, participate in rallies, write letters, and purchase ads."

They aren't free to exercise their right to political speech because they chose to give to a corporation to speak for them and were banned from having that corporation speak for them when they wanted it to. That's sort of what a "restriction" on liberty is.