Censorship

Larry Lessig's 'Simple' Solution to Excessive Speech

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Since the Supreme Court ruled that the First Amendment protects people's freedom to talk about politics, even when they are organized as corporations and even when an election is approaching, Harvard law professor Lawrence Lessig has been tinkering with the Constitution in his legal workshop. Here is the result:

Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.

This "simple amendment," he says, will allow Congress to prevent both corporations and citizens of other countries from exercising an "undue influence" on elections. Lessig's amendment is narrower than the Speech for People Amendment, which gives Congress and the states the general authority "to define, regulate, and restrict the spending and other activity of any corporation." But I still see a few problems with his more modest proposal.

To begin with, what is the difference between a permissible "limit" on campaign expenditures and a forbidden "ban"? If Congress said corporations (including nonprofit advocacy groups) may spend up to $10 on political speech near an election, presumably the courts would see that as equivalent to a ban. What about $100 or $1,000? How is Congress going to draw the line between just the right amount of influence and "undue" influence, and to what extent will the courts second-guess that determination, based on what remains of the First Amendment?

More important, what are "campaign expenditures"? I assume that term would cover "express advocacy" (e.g., "Vote for Congressman Douche" or "Vote Against Senator Turd"), allowing Congress to reinstate one of the bans overturned in Citizens United. But the other ban, on messages that simply mention a federal candidate, was supposedly necessary because interest groups could accomplish the same goals through "sham" issue ads that avoided the "magic words" of express advocacy. Even before Citizens United, the Supreme Court had felt constitutionally compelled to narrow the definition of forbidden "electioneering communications" so that a message would be covered only if it was "the functional equivalent of express advocacy" because it was "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." And even then, there was much uncertainty about which messages the Federal Election Commission would deem to be prohibited, which created a chilling effect on speech, a point emphasized in Citizens United.

If "campaign expenditures" do not include anything beyond express advocacy, restrictions on them will be pretty easy to get around. By the same token, the restrictions will not accomplish what Lessig wants. Assuming that the term is construed broadly enough to keep the "influence" of foreigners and corporations from becoming excessive, the amendment will authorize speech restrictions far more sweeping than the ones Congress has chosen to impose so far. It applies to all media, for instance, whereas the ban on electioneering communications covered only radio and TV. And unlike the ban on electioneering communications, Lessig's amendment does not include an exception for media outlets, so it apparently would authorize censorship of books, newspapers, magazines, TV shows, films, and websites produced by corporations (i.e., most of them). Even with a narrow reading of "campaign expenditures," Congress apparently could prevent The New York Times or The Washington Post from endorsing candidates by setting a sufficiently low limit on their spending.

Either Lessig's amendment will have little practical impact, or it will authorize heretofore unimagined levels of censorship. I frankly do not understand why he wants to open this can of worms, probably because I do not share his concern that too much speech by the wrong people has an intolerably corrupting effect on the political process. My general attitude is that everyone—corporations, foreigners, even foreign corporations—should be allowed to have their say, and voters can assess their arguments. Not everyone shares this attitude, which is why we have the First Amendment. For now.

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  1. Reason’s kneejerk difference to corporations kinda makes the Kochtapuss look like a corporatist 5th column…hiding amongst the libertarians…for now…

    1. Reason does sometimes have a kneejerk difference with corporations. Especially the rent-seeking, public partnership, receiver of Democratic Corporate Welfare kind.

      Or did you mean ‘deference’?

      1. Proper word choice is a tool of the evil corporatists.

  2. Wrong again, Larry.

    1. I’m beginning to think that Larry is actually mildly retarded, but won’t believe anyone who tells him. He just gives them a hug instead. “You’re my friend, like Harvard” he will tell them.

  3. And do not forget, as a remedial addition to the Constitution, it must be liberally construed.

    1. The Friday Funnies should be a shot of the Congressional bathroom stalls with their rolls of Constitution toilet paper.

  4. The constitution is an impediment to my vision.

  5. I still don’t get how unions, especially municipal unions, environmental groups and the like can spend millions on elections, give their mailing lists to the DNC and actively campaign on company time and still maintain their not-for-profit, holier than thou status.

    1. Actually, I’m pretty sure they don’t.

      Only Union Dues are tax deductible, yur “voluntary” political contributions to the Democratic Party are not.

      For example, a union carpenter gets to deduct his union dues as an employment cost from his income for tax purposes just as he gets to deduct the cost of a new hammer or a pair of safety boots (both of which are paid to for-profit companies).

      You have confused tax deductibility of donations or contributions with non-profit status. It is a common error; but they are two different things.

      Non-profit status simply means “nor intended to make any profits that are paid out to owners or shareholders”. Lots of non-profits do deliberately political activities, eg the ACLU; that’s why the IRS won’t let you deduct the contributions you make to them from your income for tax purposes.

      1. Add this sentence to the third para about the union carpenter:

        “However the money he voluntarily gets checked off, [if he wants to work on a regular basis], for political action, is not. The Business Agent keeps track of these things, Brother (oh, and it’s a good thing that’s an American truck you just bought, Brother).

  6. Here’s a challenge to any fuckhead who calls themselves a “liberal” or “progressive”: explain how you are actually for free speech. I’m waiting.

    1. Speech should be free for the little guy, from a historically oppressed group, or for those who use that little guy as justification for seizing and maintaining power. Otherwise, speech should not be free.

    2. Not a liberal here, but I can take a stab at it: speech means words, actually spoken (not written, printed, etc.). I don’t care what the word “speech” meant when the 1A was written, it says what it says (Fluffy, probably the best commenter here, uses this argument all the time to good effect). Speech means spoken word, and not anything else, including $ used to facilitate it or recorded voices. So if Congress is prohibited from abriding “speech” it is still free to restrict anything that is not spoken word.

      1. Then flag burning can be made illegal.

      2. That’s where that whole “or of the press” comes in, n’est-ce pas?

        Also: is recorded and broadcast audio spoken word? Sure seems like it to me.

      3. Fail. I know you’re just playing devil’s advocate and making an attempt at it, but your fail is indicative of how an actual “progressive” would fail. And that is…epically.

        1. And that is…epically.

          Is that an abbreviation of “episiarchically”?

          1. Yes. All things epic are named after me.

            1. EPIC FAIL

              Yup, named after you alright.

              1. Well done, SF. Well done.

                1. I’m a liberal. I don’t care about political commercials, they can put as many on as they want.

                  It may be only a coincidence but a significant majority of people who I have met who would describe themselves as conservative, are people who I would classify as ‘cunts’.

                  Yet you try to make this observation at a Tea Party meeting, you get fucking ejected! So much for freedom of speech.

        2. The correct answer is that progressives believe that protected speech is that which is deemed protected by the Department of Free Speech. But only when the department is controlled by the right people.

          1. They cut the funding of DOFS to enlarge the Department of Peace.

        3. Most of my friends are liberals and they really think that fraudulent speech is not really speech. And by that they mean false or misleading speech, which they truly believe is not worthy of 1A protection (they won’t accept the libertarian position that the speaker should be liable for damages but that the speech itself should not be banned, they think the speech itself should be banned). This is especially so, they believe, when fraudulent speech could affect larger democratic institutions, such as elections. So better to just ban ALL speech a “few” days before an election than run the risk that fraudulent speech will undermine the process/institution. But we’re really FOR free speech. Just not when it interferes with more important stuff.

          1. You should get some self-aware friends.

    3. Lessig’s belief is that although he is intelligent, informed and astute enough to see through all of the election advertising clutter and thus rationally determine which candidate would best support his interests, the hoi polloi isn’t.

      It’s elitest bullshit. While I regularly disparage the intelligence of the average American (how can you not?) I lack the hubris to think I should decide what they see, hear and read.

      I also lack the trust to allow anyone else, especially Larry Lessig, to do so.

      1. Too true. Brought a tear to my eye.

        Devil’s advocate for a moment…

        Of course, the unwashed masses cannot be trusted to make decisions for themselves. That’s why we have a republic and not a true democracy.

    4. More to the point: why are liberals/progressives/Democrats in lockstep (some would say “goose-step”) against Citizens United, while libertarians/conservatives/Republicans are almost unanimously for it? Popular punditry rarely scratches deeper than the surface of this most critical philosophical battle.

      1. Good point Ed. I wonder what Democrats from 1975 (Watergate era) would have to say to Democrats of today on this topic? Seems that it was pretty unanimous that restricting speech was something that only a dirty republican war monger would attempt.

        1. Yup. I would posit that deep-thinking partisan “strategists” on the left are more concerned with short-range political objectives than genuinely liberal free-speech issues.

    5. Because money isn’t speech, and corporations aren’t persons. If they were persons, they would be sociopaths. It would be imprudent to let sociopaths have the most influence on elections.

      1. money isn’t speech

        In other words, since computers, printing presses, internet service, radio transmitters, video cameras etc. cost money, freedom of speech = freedom to speak, and that’s it. Unless we give you the means and permission to do otherwise.

        corporations aren’t persons

        The stopped clock is right for once today: corporations aren’t persons. Corporations are people.

      2. Good ole’ Polemic Tony is back. That’s good to see. Welcome to Ratiocinate where we believe that people are free to make their own decisions. No matter what the TeeVee tells them.

      3. It would be imprudent to let sociopaths have the most influence on elections.

        Seeing as how sociopaths tend to be the ones running for office, that ship’s done sailed, Tony.

      4. Mouths aren’t speech either. Presumably Congress could order anyone they dislike to be literally gagged. Yes, it would be harder for them to get their speech out to other people, but they could still speak.

      5. Mouths aren’t speech either.

        Presumably, Congress could order anyone they dislike to be literally gagged. Yes, it would be harder for them to get their speech out to other people, but they could still technically speak. Speech is speech, whether it’s audible or not.

      6. Mouths aren’t speech either.

        Presumably, Congress could order anyone they dislike to be literally gagged. Yes, it would be harder for them to get their speech out to other people, but they could still technically speak. Speech is speech, whether it’s audible or not.

      7. As I’m sure you’re aware, the first amendment does NOT in fact limit the free speech of sociopaths.

  7. To begin with, what is the difference between a permissible “limit” on campaign expenditures and a forbidden “ban”?

    No wonder Obama is an idiot. If BO paid tens of thousands of dollars to listen to this kind of stupidity, it is no wonder BO can’t fucking grasp that Obamamcare is unconstitutional.

    But more importantly, this is what passes for a serious constitutional scholar?

    1. You’ve never been to law school, have you?

      1. Ugh, yes I have. What is your point?

        1. Then you should know that is what passes for a serious constitutional scholar.

          1. Lessig is a constitutional scholar in the same way that Katie Couric is a journalist. If this is the best we can do, no wonder we have this federal leviathan.

            1. I’ll do you one better. Stephen Breyer is not just a constitutional scholar, he’s on the Supreme Court. From his book “Active Liberty: Interpreting our democratic Constitution” he believes that the constitution protects “active Liberty”, which he defines as “Freedom to participate in government”. The other form of liberty – Modern Liberty or “Freedom from government coercion” is not protected. Really…. there’s a nice little summary on Wikipedia. And he’s one heart attack away from holding the majority opinion on the court. The authors of the Constitution had a warning about this sort of attitude and it’s inevitable descent into tyranny. I don’t think anybody is listening though.

      2. It’s the difference between actual constitutional scholarship and politics by other means. Lessig is guilty of the latter, as are many others.

    2. To ameliorate any ambiguity, I am mocking Lessig not Jacob. If I could go back in time, I would try to convince the founders to take the word unreasonable out of the 4th amendment. If a modern day scholar is stupid enough to propose such a constitutional amendment with similar wiggly language, he isn’t much of a scholar, IMHO.

  8. Monica Conyers’ Lawyer to Be Paid by Taxpayers Despite Husband’s $170K Income

    Defying all odds, former Detroit City Councilwoman and wife of Rep. John Conyers became even more loathsome this week when it was announced she would be using a taxpayer-funded lawyer to overturn a guilty plea she herself made to cut a deal with the FBI.

    Conyers plead guilty to taking bribes in exchange for? I kid you not? a sludge contract with the city. Conyers was a vocal opponent of awarding Synagro Technologies a sludge-hauling deal in Detroit in 2007 before unexpectedly becoming the deciding vote in favor of the contract at the last minute.

    After pleading guilty, Conyers had a change of heart. Despite her husband’s $170,000 income, she has been declared indigent:

    http://detnews.com/article/20100316/METRO/3160404

    1. Meh. If she were your wife would you give her a penny in her ridiculous quest to have a guilty plea overturned?

      1. If my wife were dumb enough to plead guilty, I’d divorce her. She should have learned better in law school.

  9. “Vote Against Senator Turd”

    Ugh, very disrespectful. It’s Senator Sandwich. Turd is her first name.

  10. Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban

    You mean, similar to “restrictions” on guns that, say, allow you to own one if it’s locked up and unloaded and disassembled, and only in your own home, and only if the police chief decides to give you a permit to own one because you’re a cop or a politician?

    And if you buy more than one, a SWAT team will haul you in for a “voluntary” mental exam?

    So we can just trust politicians to not take those “reasonable” speech restrictions too far?

    Sounds good to me!

  11. Douche vs Turd? Excellent South Park reference. New season debuts tonight!

  12. This list of people I have to kick in the face is getting too long to manage.

    Off to start a spreadsheet.

    1. It’ll just be used as evidence at your hearing. Encrypt it up good, or else.

  13. One more problem with the proposed amendment – what does “before an election” really mean?

    Before a primary election? General election? Special election? Does the subject of the speech have to be on the ballot for speech about them to be banned (pardon me, restricted)?

    Take a look at the election calendar in most places. Between local, state and federal, primary, general, and special elections, these “restrictions” could be imposed for a good chunk of the year.

    More trouble:

    What is speech of “non-citizens”? If BigEvil, Inc., hires a citizen to speak on its behalf, is that speech of a citizen, or of a non-citizen? Its being uttered by a citizen, isn’t it? How can you tell?

    Guys like this are an embarrassment to lawyers everywhere.

    1. Not to mention the election for Senior Class President at Adlai Stevenson High School.

    2. His attempt is doomed to fail before it starts. I’ve seen these “new” constitutions before, and they all suffer from the same flaw as the original — they are too “simple.” A good constitution would look more like a well-drafted contract than anything else. There would be a preamble, a section with detailed definitions, the important stuff, and some miscellaneous boilerplate. Lessig’s amendment fails because it doesn’t define any of the important terms.

      1. Agreed. And I would add something to the extent that if there is any amibiguity or vagueness, or the question simply isn’t answered by the amendment, the court should err on the side of restricting the power of the government.

        1. They already tried that.

          “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

          It is called the 10th Amendment. See also 14th amendment.

          It isn’t working too well from what I can see.

          1. Largely because of invented loopholes big enough to ram any new power through – ask most folks what is implied by “General Welfare,” for example – despite Madison’s protestations to the contrary.

            Any “new” constitution has to be air-tight to any kind of creative mischief in interpretation. Which, alas, is unlikely.

        2. Exactly. Kind of like a construe against the drafter provision, only better.

    3. There’s no citizen/person distinction with speech rights, anyway, given the way the prohibition on speech regulation is written. Introducing that even in a limited way is, of course, bad.

  14. does this language not allow for the state to ban speech of non-citizen individuals? So he would have it that immigrants who are not citizens have no free speech protection?

  15. What an egghead Larry Lessig is.

    He’s clueless about all things design and law and how such leads to outcomes.

    For if he wanted to exact change, he’d call for a restoration of popular representation to the House, at least to the founder’s ratio; he’d call for a repeal to the 17th Amendment; a repeal to the all-corrupting 16th Amendment and an end to the Federal Reserve.

  16. given our government’s newfound appreciation of The Science, is there any definitive science (I know, it’s soft science) that indicates the ill affects of corporate–or any other-speech? IN other words, is there anything remotely quantitative to show that the speech in question actually does harm? Or is this tilting at windmills?

  17. We should propose an amendment that prohibits the alteration or revoking of any amendment ratified prior to 1871.

    1. I’d suggest “Congress shall make no law or amendment that alters, amends or repeals, in any way, or Amendments I through XV.”, except that too many have problems understanding what “no law” means.

    2. The obvious workaround would be the amendment repealing the amendment prohibiting the alteration of those amendments.

  18. I frankly do not understand why he wants to open this can of worms

    It’s pretty simple, really. Anything that gets in the way of their big government machinations must be ruthlessly destroyed. Including the Constitution.

  19. All this stuff is really aimed at nothing more than being a liberal Democrat politican protection act.

    The Dems have had the advantage for a very long time of having the mouthpieces of the MSM on their side as advocates for their ideology and their candidates.

    The corporatly owned New York Times, Washington Post, MSNBC, CBS, NBC, ABC, CNN, etc. etc. can say whatever they want at any time, endores whoever they want at any time, gin up all the supposedly “hard” news pieces that are actually hit pieces designed to advance agendas at any time with no restrtictions whatsoever.

    And all those things have been and are overwhelmingly in favor of liberal democrats.

    The people screeching about the SC decision are simply trying to preserve that advantage and prevent any other corporation from being able to do what the media corporations do.

  20. All this stuff is really aimed at nothing more than being a liberal Democrat politican protection act.

    The Dems have had the advantage for a very long time of having the mouthpieces of the MSM on their side as advocates for their ideology and their candidates.

    The corporatly owned New York Times, Washington Post, MSNBC, CBS, NBC, ABC, CNN, etc. etc. can say whatever they want at any time, endores whoever they want at any time, gin up all the supposedly “hard” news pieces that are actually hit pieces designed to advance agendas at any time with no restrtictions whatsoever.

    And all those things have been and are overwhelmingly in favor of liberal democrats.

    The people screeching about the SC decision are simply trying to preserve that advantage and prevent any other corporation from being able to do what the media corporations do.

  21. All this stuff is really aimed at nothing more than being a liberal Democrat politican protection act.

    The Dems have had the advantage for a very long time of having the mouthpieces of the MSM on their side as advocates for their ideology and their candidates.

    The corporatly owned New York Times, Washington Post, MSNBC, CBS, NBC, ABC, CNN, etc. etc. can say whatever they want at any time, endores whoever they want at any time, gin up all the supposedly “hard” news pieces that are actually hit pieces designed to advance agendas at any time with no restrtictions whatsoever.

    And all those things have been and are overwhelmingly in favor of liberal democrats.

    The people screeching about the SC decision are simply trying to preserve that advantage and prevent any other corporation from being able to do what the media corporations do.

    1. Gilbert you have this all backassward. The only media actually serving as propaganda arms for a political party are talk radio and FOX news.

      I know those same sources have you convinced that all the rest of journalism (not to mention academia, the scientific community, and the entire entertainment industry) are in a big liberal conspiracy to oppress you, but trust me, the left is not that organized, nor is it nearly as well funded. Historically the money’s been on the GOP side, even well after they began to crack up and go batshit insane (hey, they were still for less regulation!)

      1. You are a strange little man in a strange little world.

      2. Tony, if you’re going to be even a marginally competenet troll, you’re going to have to step up your game.

        You see effective trolls need to have at least something in their posts that could pass for some semblence of reality.

        When you stretch the boundaries of credulity well past the breaking point, you’ve blown it.

      3. The only media actually serving as propaganda arms for a political party are talk radio and FOX news.

        HAHAHAHAHAHAHA!!!1!!

        Really, Tony? Really? You think the rest of the MSM doesn’t do propaganda, just Faux News?

  22. Sorry for the multiple posts – my browser was hanging up.

    1. I’d have blamed an interdimensional rift.

  23. “Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.”

    Um, I’m trying to image 2/3 of the states ratifying this.

    Nah.

    1. Maybe he’s trying to get the Know Nothing vote.

  24. You know what? Today’s left seems to like only one part of the Constitution. The one reducing people to 3/5 a person.

  25. So he admits it’s all unconstitutional right now. Good to have him on our side.

  26. Voters are supposed to get their brainwashing from approved sources. We can’t have some rabble-rousing corporation messing up the system.

  27. You’re arguing on the symptom and not the problem.Washington’s continuous grabbing of more and more power to control our lives and pick winners and losers in business is the real problem. The money flowing into the campaigns is the market’s response. If dumping enormous wads of cash into election campaigns didn’t provide a good return on investment companies wouldn’t do it. The fact that it is a good return on investment shows you how awful the government is not how bad the corporations are.Limit the federal government and the corporations will limit the amount of funding they provide.
    Look, the money that a company is willing to spend on politicians is the “price” of this market, that is, it is the information telling you how much control and power to affect business the elected officials have accrued. Limiting the donations just distorts the price and helps to hide the truth.
    The premise here seems to be that businesses corrupt government when the truth is that government corrupts business.

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