Free Speech Victory in Citizens United

The Supreme Court handed down its decision in Citizens United v. FEC, a case that considered whether the FEC could regulate the publication of a movie critical of Hillary Clinton via a video-on-demand service. My celebratory tweeting attracted skeptical responses from Chris Hayes and Ken Fisher, who see this as an issue of “corporate money in politics.”

Part of my disagreement with these guys is that I’m just a free speech zealot. The First Amendment says “Congress shall make no law…abridging the freedom of speech.” While I wouldn’t say there’s no room for interpretation, I have trouble seeing a plausible reading that allows the FEC to limit the distribution of a documentary criticizing Hillary Clinton. The best you can say, I think, is that limiting corporate influence is a “compelling state interest” sufficient to overcome the First Amendment’s ban on speech abridgment, but that’s just another way of saying that you don’t care about free speech very much.

Second, I think it’s important to remember that “corporations” encompass much more than large, for profit businesses. They also include a wide variety of non-profit and advocacy groups, including groups like the ACLU, the NRA, and NARAL that are, by any reasonable definition, grassroots organizations advocating the views of large numbers of voters. Indeed, as the ACLU pointed out in its amicus brief, the Bipartisan Campaign Reform Act (BCRA) prohibited the ACLU from running ads criticizing members of Congress who voted for the awful FISA Amendments Act of 2008. Even if you think it’s appropriate for Congress to regulate the speech of Exxon-Mobil and Pfizer, I think it’s awfully hard to square the First Amendment with a law that limits the ability of NARAL or the NRA to advocate for its members’ views.

But more fundamentally, I don’t buy the idea that limiting corruption is a state interest sufficiently compelling to overcome the First Amendment interest in free speech. I think supporters of BCRA misunderstand how corporations wield influence and dramatically overestimate the power of television advertisements. It’s true, of course, that a corporation prepared to spend $1 million on ads criticizing a particular legislator will get that legislator’s attention. But there’s nothing unique about this. It can also get his attention by hiring a lobbying firm that employs a former staffer. It can get his attention by arranging $100,000 in bundled contributions from executives, clients, and friends of the company. It can get his attention by creating astroturf organizations. And there are probably lots of other mechanisms I haven’t thought of.

The key difference between independent expenditures and these other mechanisms is that the independent expenditures are the most open and transparent. To run an effective “issue ad,” a corporation has to make an argument that is persuasive voters. I don’t want to sugar coat the situation; sometimes independent expenditures finance ads that are sleazy and misleading. But given a choice between corporations spending their money on ads about how Senator Smith hates America or spending their money on K Street, I’ll take the ads, because at least voters still get the final decision.

Moreover, I think we’re moving toward a world in which traditional high-dollar advertising campaigns will become increasingly ineffective. Chris compares the post-Citizens United world to a debate in which “you get 10 seconds to make your case. I’ll take an hour.” This description of the world had a certain plausibility when most people got their news from newspapers and television—media characterized by severe, technologically-imposed bottlenecks. These bottlenecks meant that those willing to spend more money could get a significantly bigger soapbox.

This is a lot less true online where users have practically unlimited choices. The web is littered with lavishly funded corporate propaganda that gets a fraction of the traffic of Biong Boing. Indeed, money literally cannot buy the kind of large, loyal audience that Cory Doctorow has earned. Buying BlogAds on Boing Boing simply doesn’t compare to being a contributor to Boing Boing itself. And of course Boing Boing’s audience would evaporate if they let a Pfizer lobbyist start posting there.

So I’m not thrilled at the idea of Fortune 500 companies spending more money on bogus “issue ads.” But I think the dangers of such ads are frequently exaggerated. I’m far more worried about preserving the right of organizations like the ACLU to spread their message. And I don’t see any plausible way to stop the former without seriously restricting the latter. So I’m glad to see the Supreme Court take the words of the First Amendment—”Congress shall make no law”—literally.

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4 Responses to Free Speech Victory in Citizens United

  1. Ken Fisher says:

    I appreciate your POV Tim, but I guess I disagree in at least three ways.

    First, I personally do not believe that the Bill of Rights should apply wholesale to corporations. Already there are so many laws surrounding “free speech” issues that affect those of us in Media. I’d rather see Congress take steps towards protecting the playing field when it comes to elections. I think that the extra, hyper-civilian rights corps already have should limit their rights in other areas.

    Second, I feel like the “ad versus K Street” bit isn’t an either/or situation. Why can’t we go after both? I think both are terrible, and the argument that one is better than the other just leaves me depressed when they are both affronts to democracy (IMO).

    Last, I think this infringes on the rights of corp employees. Now if I work for company X and company X is out cheerleading for a candidate, I know that a) people might associate me with those political views, and b) part of profits of my labor are going to a candidate I had no say in supporting. Yes, I know that PACs could operate similarly. I just truly feel like this was a step in the wrong direction.

  2. Jeremy Morlan says:

    This Swiftboat ad brought to you by Pepsi Co. I have a hard time seeing that. Corporation try to protect their image and I think are less likely to run a bad campaign ad than an individual with an ax to grind. I often wonder what planet these people who hate corporations live on.
    If in the next election a canidate comes out with a platform that specificaly targets the banking sector. I think that my “evil” corporate bank should be able to run ads for the opposing canidate.

  3. Brian Moore says:

    At least attacking free speech is a bipartisan affair!

    Ken, re: your last point: how could any organization function if doing something that any employee disagrees with infringed upon their rights? Would this apply to unions? To non-profits? To governments?

    Do you seriously think you have the rights you listed? The right to not be associated with political views you may not hold? In another thread, Joe called Tim a communist. Does that violate Tim’s rights? Or the right to determine whether or not the money/labor/items you gave to another person can use them for political speech or not? If I volunteer some time on a candidate’s campaign, can I veto any action they might take, if I dislike it?

  4. Ken Fisher says:

    @Jeremy

    An ad doesn’t have to be negative to be influential.It can be full of fluffy bunnies. Corps aren’t dumb, they know PR.

    @Brian

    I’m not talking about “anything” someone doesn’t like, I’m talking about allowing corporations to gain even more political power by becoming major funders of politicians. It devalues my vote, makes me suspicious of anything Washington does, and discourages people from engaging in the political process because they believe it’s all bought and sold. I didn’t like the previous situation, and I fail to see how this is any more a solution. In fact, I think it’s worse. I think Lessig put it best:
    http://action.change-congress.org/page/s/citizensunited

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