What Is the First Amendment For?

[groovedaddy]

Citizens United v. Federal Election commission — the recent case in which the Supreme Court invalidated a statute prohibiting corporations and unions from using general treasury funds either to support or defeat a candidate in the 30 days before an election, and overruled an earlier decision relied on by the minority — has now been commented on by almost everyone, including the president of the United States in his state of the union address.

I would like to step back from the debate about whether the decision enhances our First Amendment freedoms or hands the country over to big-money interests, and read it instead as the latest installment in an ongoing conflict between two ways of thinking about the First Amendment and its purposes.

We can approach the conflict by noting a semantic difference between the majority and concurring opinions on the one hand and the dissenting opinion — a 90-page outpouring of passion and anger by Justice Stevens — on the other. The word most important to Justice Kennedy’s argument (he writes for the majority) is “chill,” while the word most important to Stevens’s argument is “corrupt.”

Kennedy, along with Justices Roberts, Alito, Thomas and Scalia (the usual suspects), is worried that the restrictions on campaign expenditures imposed by the statute he strikes down will “chill” speech, that is, prevent some of it from entering the marketplace of ideas that must, he believes, be open to all voices if the First Amendment’s stricture against the abridging of speech is to be honored. (“ statute which chills speech can and must be invalidated.”) Stevens is worried — no, he is certain — that the form of speech Kennedy celebrates will corrupt the free flow of information so crucial to the health of a democratic society. “he distinctive potential of corporations to corrupt the electoral process long been recognized.”

http://opinionator.blogs.nytimes.com/2010/02/01/what-is-the-first-amendment-for/?th&emc=th

[liberal N proud]

1. It all changed since SCOTUS rewrote history.

So who knows anymore.

[NoNothing]

2. J.S. Mill explained it very well

In his book On Liberty, J.S. Mill made the case for maximum freedom of speech.

Let us suppose, therefore, that the government is entirely at one with the people, and never thinks of exerting any power of coercion unless in agreement with what it conceives to be their voice. But I deny the right of the people to exercise such coercion, either by themselves or by their government. The power itself is illegitimate. The best government has no more title to it than the worst. It is as noxious, or more noxious, when exerted in accordance with public opinion, than when in opposition to it. If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. Were an opinion a personal possession of no value except to the owner; if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

[groovedaddy]

3. Thanks for sharing this. n.t

[RaleighNCDUer]

4. And this has exactly what to do with the argument?

Who is the person who loses his voice if corporations are prevented from corrupting the electoral process?

Who, exactly, IS a corporation?

Does limits on corporate money reduce the CEO's rights? Doesn't that CEO still have the same right to free expression as any other person in the country? Is he prevented from speaking out, any more than the guy who repairs his car?

But if the guy who repairs his car wants to speak out, is he going to be heard over the noise generated by a corporation with a hundred thousand dollars to spend? Does his letter to the editor have equal effect as a 45 second slot at the Superbowl?

"...mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind."

Isn't that exactly what we see, a corporation (call it 'mankind' here) being a hundred men with megaphones speaking over the voice of one man - that the corporation is not silencing him is immaterial if it makes his voice inaudible.

This is NOT about free speech - it is about bought and paid for speech, by persons held unaccountable because they hide behind the corporate front claiming, disingenuously, that it is the corporation that is speaking, not them.

[NoNothing]

5. I'll insert my own comments to elucidate

The relevant part is, I think, this:

"Were an opinion a personal possession of no value except to the owner; if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many."

-- In other words, if "freedom of speech" were *entirely* about the speaker and whether or not they were harmed, then you might be able to argue that some restrictions are justifiable so long as they harm few people.

"But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it."

-- But rules that silence an expression (whoever the speaker) of an opinion are different in that they don't just take away from the speaker, they take away from the listeners as well. Not just from those who would hear it and agree with it, but *even more* from those who hear it and disagree.

"If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error."

-- If the opinion being expressed (whoever the speaker) has merit, then humanity is deprived for not being able to adopt it. If it is wrong, humanity loses almost as much, by not being able to more clearly see what is right by holding it up against what is wrong.

[RaleighNCDUer]

6. Again, WHO is the speaker when the speaker is nothing more than corporate money?

You are accepting two fictions as fact - that 1) corporations are people, and 2) money is speech.

Taking your premise to its logical conclusion, the guy who drops off an envelope with $10,000 in it at a congressman's office is simply exercising his free speech rights.

Unlimited corporate contributions (and the reality is, of course, that a half-million dollar TV ad in support of a politician's election IS a contribution, even it he never sees a penny of it, because it is that much less he needs to come up with himself) are actually nothing more than bribery. Until this ruling, bribery was a crime.

What you posit is all voices being equal - and yet, how is a corporate voice with no accountability and a virtually unlimited budget equal to that of a common citizen? Particularly when that citizen must, almost inevitably, use corporate resources such as TV, radio, press, to be heard, and the private corporation has no restrictions on preventing the citizen from airing his views?

Restrictions on corporate money do not silence them - it only puts corporations on equal footing with the real live flesh n blood citizens who, from this point on, will not be able to be heard. This corporate free speech will have the very real effect of eliminating REAL free speech.

[NoNothing]

7. I didn't say that at all

"You are accepting two fictions as fact - that 1) corporations are people, and 2) money is speech."

I never said anything remotely like that. I have no idea where you are getting this from.

I'm saying that the focus is on *speech*, that the *speaker* is irrelevant. This has nothing - absolutely nothing at all - to do with whether or not corporations are people (they aren't). I'm saying it doesn't matter. It's still *speech* even if it comes from a corporation.

Second, money obviously is not speech. I never said that it was at all. Obviously, sliding somebody an envelope of cash is *not* "speech." On the other hand, statements made by someone to whom an envelope of cash is being slidden, is *still* speech! Right? Like, if you pay someone to publish a pamphlet for you, it's still speech even though you paid them to print it. Just because you pay someone to state your opinion doesn't mean that expression is not protected. So my point was not that money is speech, it was that *speech* is speech even if it is backed by money. That's a different thing.

[RaleighNCDUer]

8. If you reject those fictions, then why don't you see that the so-called

corporate speech is NOT speech by corporations, but by the men who run the corporations? By granting corporations special access, apart from the MEN whose speech the corporation actually represents, you are destabilizing the weight of that speech.

No corporation has a mouth - it CANNOT speak. What it can do is funnel money to a particular person or cause in such overwhelming amounts that no amount of speech by people can overcome it.

Again, it is not free speech when a person with a bullhorn is in your face and you cannot reply in kind - the only voice heard is theirs. This decision gives a bullhorn to the richest people in the country and OUR voices, YOUR voice, will not be heard over it.

The regulations that were thrown out by this decision did not prevent anyone from speaking. They prevented everyone from being subject to only one POV - the essence of democracy.

But fine, let's deregulate corporate money in elections - that will no doubt be a success just as banking deregulation was, for the top 5%.

Are you gay? Next time you see a corporate sponsored, but unattributed, anti-gay ad consider that YOUR money, their profits, paid for that ad. Against global warming? When 'Americans United for a United America' runs an ad calling climate change a hoax consider that the oil company who really is 'Americans United for a United America' paid for that ad with your money, their profits - and you can't even boycott them in return because you have no way of knowing who they are - astroturf groups formed by anonymous corporations. Your freedom of speech is degraded to yelling into a hurricane - all you hear is the hurricane. THAT is the freedom of speech that you are defending.

[NoNothing]

9. I do not patronize them

Corporations that espouse views antithetical to mine do not get my money because I make the choice not to give it to them and they do not - yet - have the legal right to take it from me by force.

Your primary argument seems to be that there is some limited quantity of a resource known as "speech," and whatever is consumed by corporations cannot be used by everyone else. But I think this is simply silly, *especially* in the internet age. A corporation's speech does not prevent me from speaking. It doesn't even limit the reach of my speech in absolute terms. It doesn't prevent anyone who wants to hear me from hearing me, at all.

Your view, that some must be squelched so that others can be heard, is dangerous and antithetical to democracy. Real commitment to democracy as an "ends" rather than a "means" requires that you permit the maximum availability of political expression, including that which you find distasteful or even dangerous. "Democracy" cannot coexist with "equality of speech."

[RaleighNCDUer]

10. Which is, of course, why there are so many strong liberal voices on Faux.

Unlike real people, corporations control both the message AND the media.

There were MILLIONS of voices advocating single-payer healthcare before congress produced their first bill - but if you watched the news, read the papers and news weeklies, you'd think there was no such thing. Why? Because the corporate powers made sure that no pro-single payer articles ever were to circulate outside the blogosphere.

And this was BEFORE the ruling that unfettered them.

And who is responsible? I can come up with one name - Rupert Murdoch - and that is only one of who knows how many, and only because of his direct control of Newscorp. It's easy to say 'the health insurance industry' is against it, but who IS the health insurance industry? The corporations? The CEOs? The stockholders? The people who purchase health insurance? With whose voice does the corporation speak, as (something you don't seem to get) without a HUMAN spokesperson the corporation CANNOT speak.

Who is the REAL speaker? And why does he get a supermegaphone, while I get a keyboard?

Democracy cannot coexist with equality of speech? You want to re-think that?

Democracy cannot coexist WITHOUT equality of speech.