Citizens United Ruling And Free Speech
By Raghav Kaushik at Nov 13, 2011
The basis of the ruling was the First Amendment right to political speech. It is worth noting that the ACLU, which as everyone knows has played a leading role in the freedom of speech movement in this country, supported the ruling to the extent of even drafting an amicus brief asking for the ruling when the case was in court. The ACLU is not alone in its view point. Noted civil rights lawyer and activist Glenn Greenwald was “deeply ambivalent”about the ruling noting that “there are … very real First Amendment interests implicated by laws which bar entities from spending money to express political viewpoints.”
Was the ACLU right? Was the Citizens United ruling consistent with freedom of speech? At a broader level, it seems obvious that restrictions on campaign spending by private sources are necessary for us to have even a semblance of a functioning democracy. How do we understand such restrictions from the point of view of freedom of speech? This article addresses the above questions.
First, we note that assessments from the point of view of freedom of speech are generally made without reference to the quality of outcomes. For example, the bad outcomes of a racist speech given by a white supremacist are irrelevant in determining whether the white supremacist had the right to give the speech in the first place. Similarly, when we assess the Citizens United ruling from the point of view of freedom of speech, its bad outcomes are essentially irrelevant.
While several arguments are typically given as to why placing constraints on electoral spending by private parties is consistent with the freedom of speech, unfortunately many of them are flawed. It is instructive to go over the arguments and their flaws. We do so below.
Flawed Argument #1: Money is not speech
One of the most common arguments made is that money is not speech that therefore constraints on spending do not amount to constraints on speech. We believe the argument is flawed because in fact, free speech laws do apply to money as they must. For example, it is as much a violation of free speech if the government disallows spending on anti-war campaigning as it is if the government disallows anti-war speeches.
Flawed Argument #2: Free speech laws must not apply to corporations.
Of course it is true that granting corporations the same rights as human beings (and sometimes, rights that go beyond human beings through trade agreements like NAFTA) is a travesty. Of course it is necessary and just to place restrictions on the speech of corporations. (Even better, we could work towards doing away with corporations and winning a participatory economy and a participatory society.)
But it does not follow that free speech laws must not apply at all to corporations. For example, I cannot imagine any serious advocate of free speech thinking it is acceptable for the government to censor media corporations like new media outlets and book publishers. Surely, free speech laws are applicable in giving book publishers - which in today's society are overwhelmingly corporations - the freedom of choosing what to publish. It also makes little sense to argue that free speech laws cover "special" corporations such as media outlets but not other corporations.
The above point is also made by Glenn Greenwald who wrote that “laws which prohibit organized groups of people — which is what corporations are — from expressing political views goes right to the heart of free speech guarantees no matter how the First Amendment is understood.” To support his view, he goes on to write: “Does anyone doubt that the facts that gave rise to this case — namely, the government’s banning the release of a critical film about Hillary Clinton by Citizens United — is exactly what the First Amendment was designed to avoid?” (we add that Citizens United was a non-profit organization, not a corporation, yet the substance of Greenwald’s argument also applies to corporations.)
Campaign Spending and Free Speech
How then do we reconcile constraints on campaign spending with free speech? I think there is a way of doing so that overcomes the above flaws. The fact is that as Chomsky often says “rights are not an axiom system” and free speech is often in conflict with other rights, which leads to reasonable restrictions of speech. For example, even the biggest free speech absolutist would agree that free speech does not grant one the right to enter someone else’s house in order to be heard. Similar issues are also present at schools and at work. To quote anti-racist activist Tim Wise: “the free speech rights of racists, by definition, must be balanced against the equal protection rights of those targeted by said speech. If people have the right to be educated or employed in non-hostile environments (and the courts and common sense both suggest they do), and if these rights extend to both public and private institutions (and they do), then to favor the free speech rights of racists, over and above the right to equal protection for their targets, is to trample the latter for the sake of the former. In other words, there is always a balance that must be struck, and an argument can be made that certain kinds of racist speech create such a hostile and intimidating environment that certain limits would be not only acceptable, but required, as a prerequisite for equal protection of the laws, and equal opportunity.” Amen!
The above logic is also applicable to campaign spending. Elections are after all a method for shared democratic decision-making where at least in principle all have an equal right to have their voice heard. The rights of one to spend come at the expense of the rights of others who cannot afford to spend as much. Therefore, in order to ensure that equality is not trampled, it makes sense to place limits on spending.
We note that the above argument makes no reference to corporate spending. By the above argument, there must be limits even on individual spending. In any case, everyone knows that even before the Citizens United ruling, the democratic process was corrupted and imbalances in individual funding played a large part in the corruption.
Therefore as activists working on addressing the influence of money on politics, we must be cautious about tactics such as overturning the Citizens United verdict since as noted above, that has free speech implications and is anyway hardly sufficient in addressing the influence of money on politics. Instead, as Glenn Greenwald notes: “Isn’t it far more promising to have the Government try to equalize the playing field through serious public financing of campaigns than to try to slink around the First Amendment — or, worse, amend it — in order to limit political advocacy?”