Thursday, October 14, 2010

Citizens United and Free Speech

Matt Steinglass over at the Economist has one of the better arguments I've heard against the Citizens United ruling:

That said, there are (at least) two different reasons for embracing the principle of free speech. The first is that a healthy democracy requires a vibrant sphere of public political debate. This is an instrumental reason to encourage free speech. The second is that the right to voice your own opinions and convictions is inherent in the dignity of every human being. This is a moral axiom. Corporations may stake a claim to the first justification. Not being human beings, they have no claim to the second. As far as I can tell, the majority opinion in Citizens United cites exclusively the first, instrumental justification for protecting free speech. But that first justification, being instrumental, raises the question of whether certain forms of political communication are in fact likely to contribute to a vibrant sphere of public political debate. It has been my experience that in general, the more a form of political communication costs, the less it contributes to healthy political discourse. The argument that treating a corporation's purchase of millions of dollars of televised attack ads differently from an individual's statement of an opinion in a town-hall debate amounts to discrimination or repression seems to me the product of calculated naivete on the court's part.

I've tended to focus on the court's failure to rule narrowly, as I don't have the legal chops to argue about a corporation's right to free political speech. The problem here, I suppose, is trying to make that distinction of what speech is healthy and what speech is unhealthy. Who decides? It's much easier to make an argument for absolute rights that are applied totally consistently. Shades of gray are much harder to defend. 

One also has to be cognizant of the fact that its fairly easy for a large corporation to buy TV ads, but basically impossible for all but the richest individuals to do so. It's not exactly a level playing field. But is that something the court should take into account when ruling on free speech? It makes me a bad wannabe pundit, but I don't know.


  1. I'm am far from a First Amendment absolutist, so I would be okay with more narrow readings of what the amendment protects. But, if you're going to use a standard like "likely to contribute to a vibrant sphere of public political debate," you're going to change a lot of landmark First Amendment decisions.

    American Nazi party marching in (the heavily Jewish) town of Skokie, Illinois? It's hard to see how that would contribute to a vibrant sphere of political debate. It's more like a targeted attack using words.

    Wearing a jacket that reads "Fuck the Draft"? There's a political message there, but a judge could conclude that it doesn't contribute to a *vibrant* sphere of debate so much as a coarse and simplistic one.

    Burning draft cards; burning flags; hanging flags upside down; parody ads like the one Larry Flynt made against Jerry Falwell -- I could see many of these being restricted because there are other ways of speaking about the same issue, or because they really don't contribute to political discourse.

    This is not to say that Citizens United is right. (It's not my area and I don't teach Con Law II, so I don't have strong thoughts on the case.) But I'm skeptical of Mr. Steinglass's argument.

  2. A couple things. Your problem with this argument is just what I was trying to get at. It sounds good, but then you have judges trying to apply it, and likely applying it arbitrarily, based on which kinds of speech they like. Liberal judges ban corporate speech, conservative judges ban flag burning, that sort of thing.

    It does, however, ignore part of Steinglass' argument. He laid out two reasons free speech is important. Since Citizens only used the first, "vibrant sphere," in the ruling, he made his case against it with just that definition. The second, the intrinsic right of an individual to free speech, can be applied to nearly every case you cited.

    Now, to be sure, this is more of a moral argument than a strict constructionist constitutional argument, but strict constructionism tends to be bullshit and code for "the constitution says what I want it to say," just the same as "living document" types.

  3. Re strict constructionism . . . .

    Yes, that is not a very useful term. I do think there is a meaningful difference between judges who see federal courts as having a modest, restrained role with deference to the political branches, versus ones who see the courts as having a more robust role. The latter are perjoratively referred to as "activist" judges, but my point is not to denigrate as to catalog.

    That said, my own preference is for more restraint. Deference is not abdication, of course, but I think a number of Supreme Court decisions that went out of their way to create rights, etc. have not stood the test of time.

    The real test of a judge/Justice is whether he/she is consistent in being either restrained or activist without regard to the political outcome. One of the judges that I clerked for was very much a believer in judicial restraint, and I can think of a case where he ruled in favor of a prison inmate despite a pretty good argument by the state; the judge ruled that the state's interpretation of an ambiguous statute was plausible, but it was up to the state of California to amend the statute explicitly in favor of that reading. I never discussed the result with him, but I've got to think that it was not what he would have thought to be the "best" outcome. But he didn't see his role as "doing justice."

    Similarly, if one is going to be an activist judge, then you can't complain when conservative activists (who do exist, of course) start using the same kinds of robust judicial power to redefine state sovereign immunity and the like.

  4. I reserve the right to get pissed about Citizens and look the other way on Roe v Wade. (Yeah, if I were pro-life, I would be pretty pissed about that one. Right to privacy? Nice idea, but I don't really see it.)

    I think "activist" has become just as useless a term. I understand the intellectual distinction, but it has become just another cudgel with which to bludgeon one's ideological opponents. I've been known to use it myself, though I would prefer to think I'm using it when the court has been "objectively" activist.

    Like you, I would prefer the court to practice the time-honored tradition of avoiding making an actual decision as often as possible. That's one of the things that angered me about the Citizens United ruling. Instead of ruling narrowly on the Hilary documentary, the Roberts court decided to have the case argue a large chunk of campaign finance law.

  5. "Activist" is a largely useless term, agreed. That's why I tried to define the two conceptions of judging relative to the political branches.

    My conception of the ideal Supreme Court justice was the second Justice Harlan.