This is the end.
The wall has fallen. The sky is soon to follow. The world, as we know it, is about to end. The United States of America, once proud, has been diagnosed with a terminal illness.
What illness, you ask?
Metastasized speech, unbound by the prior restraint of government officials.
How the expansion of the First Amendment triggered liberal panic
You and I might scratch our heads at the notion. Freer speech… threatens our democracy? But our inability to comprehend this notion is presumably what keeps us from joining up with the far left and registering over at Daily Kos.
For some people, too much freedom is scary. And too much freedom is exactly what some people see in the wake of the Supreme Court’s fresh decision in Citizens United v. FEC.
The decision itself is unremarkable expect where it states the obvious. Lines like “The identity of the speaker is not decisive in determining whether speech is protected.” And sentences like:
The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.
It should be obvious that political speech ought to be allowed no matter who holds the bullhorn; that one should not have to consult a phalanx of legal advisors before uttering political commentary without fear of criminal penalty.
And I think it is obvious, at least to most of us. But a very vocal contingent of our compatriots on the left find it less obvious. In fact, they find it downright threatening.
How gutting McCain-Feingold threatens the republic
Just a handful of the reactions I saw on Twitter:
- “I for one welcome our new corporate/political overlords.”
- “HAIL OLIGARCHY!”
- “I fear #scotus ruling will lead to a Plutarchy. Or do we already have one?”
- “The next American election just got dangerously stupid….Valid democracy just became even less likely.”
Just in case you didn’t get that last one, let me repeat it: some people think broader protections under the First Amendment make “valid democracy” less likely.
What, exactly, are you afraid of?
Before we launch into why this recent court decision sends so many into a tizzy, it’s important to remember exactly what the decision does. It strikes down a provision of a law, sponsored by Senator John McCain and singed into law by George W. Bush in 2002, that banned corporations from making “electioneering communications” – those supporting or opposing particulars candidate for office – within sixty days of the election. That’s it. Here’s how the Supreme Court described the law:
Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.
(Emphasis mine.) In the wake of this week’s decision, those things are no longer felonies. (Like me, you may be smacking your forehead or shouting at your computer screen, “Of course they’re not! They’re speech!”)
It’s this sixty-day window, in which corporations, unions, and associations may now expressly, in their own names, communicate their support or opposition for a certain candidate, that causes such hand-wringing on the left. This, in their view, is the downfall of the republic: the complete capture of our electoral process by companies.
So I asked on of these folks: What, exactly, are you afraid of? His reply:
I’m afraid that the narrow political interests of super-rich amoral corporations will totally dominate our legislative agenda.
In other words, he thinks that more speech will have a corrupting influence on our elected leaders, or that corporate political speech in that sixty-day window will somehow trick the voters into sending people to Washington who are beholden to the corporations who speak in their favor.
Breaking it down even further: it’s not the corporations, or the politicians, or even the voters, that bother the left…. it’s the speech. Speech they disagree with. By speakers they disagree with. And somehow, the government must stop them.
What about the furriners?
To be fair, it’s not just the left that fears freer speech. I had questions from both the left and the right, breathlessly asking me this question, over the ominous strains of sinister music: “But… what about foreign-owned corporations?” One well-meaning fellow even suggested that Al Quaeda might use corporate speech to destabilize the U.S. by injecting its opinions into our electoral process.
Al Quaeda? Really?
So… what do we do about foreign-owned corporations? In my view, nothing. I don’t think we can, practically or legally, make such a distinction, and I don’t think it really matters. Foreign-born people can speak all they want. They don’t need corporations to do it for them. And I doubt Al Quaeda will seize upon the opportunity – one they had prior to 2002 anyway – to form some corporate mouthpiece to advocate for or against particular candidates, anyway. They have much more cost-effective ways of destabilizing our democracy, such as triggering airport inspection of everyone’s shoes and underpants, that gaming elections seems like a poor option, indeed.
This decision gives Al Quaeda and our other enemies no better options than they already had. Those foreign interests with the intent to do us harm and the money to buy ads on CNN will find much more effective ways to import their harm to us. If we hogtie the First Amendment in an attempt to stop our enemies from electioneering, our enemies have already won.
The antidote to freer speech: prior government approval of speakers
Nonetheless, some fear that the legitimate business of the people will somehow get hijacked by those for their own interests, either selfish or hostile to America. They fear our government will be “dominated” by those corporations who take advantage of the new sixty-day expanded window of free speech.
And how do they propose to cure this hijacking? By allowing the government to pick and choose who gets to speak. The constitutional flaw is obvious: by choosing who gets to speak, the government gets to choose what gets said. (As the Court said, “Speech restrictions based on the identity of the speaker are all too often simply a means to control content.”) Allowing the government to choose who does and who does not get to support a particular candidate means that the government gets to choose, at least in part, which candidates get supported. And this, it should be painfully obvious, the government cannot do.
Put the government in charge of deciding who gets to support political candidates? There’s an old story about a fox and a henhouse that comes to mind. Maybe you’ve heard it.
Fortunately, the speech restrictions inherent in this part of the law are now gone, and barring a constitutional amendment, they’re going to stay gone. Until then, we’re all going to have to continue to deal with speech we disagree with, from the left or from the right, and we’re going to have to meet it with the only legally permissible response:
MikeWas is a Florida lawyer and member of RedState since 2004. He blogs at PerpetualBeta.com, where he used to write about politics but now just brags incessantly about his children and his newfound running addiction.