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Cynthetiq · 02-03-2010, 01:50 PM

This explains this discussion better than I have seen elsewhere.

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Source: Opinionator NYTimes.com
posted with the TFP thread generator

February 1, 2010, 9:30 pm
What Is the First Amendment For?
By STANLEY FISH

Stanley Fish on education, law and society.
Tags:

Campaign Finance, First Amendment, Supreme Court

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.
Related

* Linda Greenhouse: The Next Time »
* Supreme Court Decision (pdf), Jan. 21, 2010

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. (“[A] 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. “[T]he distinctive potential of corporations to corrupt the electoral process [has] long been recognized.”

When Stevens writes “has long been recognized,” he is invoking the force of history and asking us to take note of the reasons why many past court decisions (including one written by then-Chief Justice Rehnquist) have acknowledged the dangers posed by corporations, dangers that provoked this declaration by Theodore Roosevelt in 1905: “All contributions by corporations to any political committee or for any political purpose should be forbidden by law.”

Behind such strong statements is a twin fear: (1) the fear that big money will not only talk (the metaphor that converts campaign expenditures into speech and therefore into a matter that merits First Amendment scrutiny), but will buy votes and influence, and (2) the fear that corporations and unions, with their huge treasuries, will crowd out smaller voices by purchasing all the air time and print space. The majority, Stevens admits, does “acknowledge the validity of the interest in preventing corruption,” but, he complains, it is not an interest it is interested in, for “it effectively discounts the value of that interest to zero.”

That’s not quite right. Kennedy and the others in the majority make the proper noises about corruption; they just don’t think that it is likely to occur and they spend much time explaining why corporations are citizens like anyone else (a proposition Stevens ridicules) and why, for various economic and public-relation reasons, they pose no threat to the integrity of the electoral process.

But even if they thought otherwise, even if they were persuaded by the dire predictions Stevens and those he cites make, they would come down where they do; not because they welcome corruption or have no interest in forestalling it, or discount the value of being concerned with it, but because they find another interest of more value, indeed of surpassing value. That is the value of being faithful to what they take to be the categorical imperative of the First Amendment, which, with respect to political speech, forbids the suppression of voices, especially voices “the Government deems to be suspect” (Kennedy); for if this voice now, why not other voices later?

Even if there were substance to the charge of “undue influence” exercised by those with deep pockets, it would still be outweighed, says Kennedy, citing an earlier case, “by the loss for democratic process resulting from the restrictions upon free and full discussion.” The question of where that discussion might take the country is of less interest than the overriding interest in assuring that it is full and free, that is, open to all and with no exclusions based on a calculation of either the motives or the likely actions of individual or corporate speakers. In this area, the majority insists, the state cannot act paternally. Voters are adults who must be “free to obtain information from diverse sources”; they are not to be schooled by a government that would protect them from sources it distrusts.

Notice how general Kennedy’s rhetoric has become. The specificity of Stevens’s concerns, rooted in the historical record and in the psychology and sociology of political actors, disappears in the overarching umbrella category of “information.” The syllogism is straightforward. Freedom of information is what the First Amendment protects; corporation and unions are sources of information; therefore their contributions — now imagined as wholly verbal not monetary; the conversion is complete — must be protected, come what may.

That, Kennedy is saying, is the Court’s job, to allow the process to go forward unimpeded. It is not the Court’s job to fiddle with the process in an effort to make it fairer or more representative, a point Chief Justice Roberts makes in his concurring opinion when he cites approvingly the Court’s “repudiation,” in Buckley v. Valeo (1976), “of any government interest in ‘equalizing the relative ability of individuals and groups to influence the outcomes of elections.’” Equality may be a good thing; it might be nice if no one had a disproportionate share of influence; but it’s not our job to engineer it. Let the market sort it out.

The majority’s reasoning reaches back to a famous pronouncement by Oliver Wendell Holmes, who acknowledges in Gitlow v. New York (1925) that there are forms of discourse, which, if permitted to flourish, might very well bring disastrous results. Nevertheless, he says, “If in the long run the beliefs expressed . . . are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”

Holmes’s fatalism — let everyone speak and if the consequences are bad, so be it — stands in contrast to the epistemological optimism of Justice Brandeis who believes that if the marketplace is allowed to be completely open bad speech will be exposed and supplanted by good speech (a reverse Gresham’s law): “The remedy to be supplied is more speech, not enforced silence” (Whitney v. California, 1927). Both justices reject state manipulation of the speech market , one because he is willing to take what comes — it is Holmes who said that if his fellow countrymen wanted to go to hell in a hand-basket, it was his job to help them — the other because he believes that what will come if speech is unfettered will be good.

The justices in the Citizens United majority are more in the Brandeis camp. They believe that free trade in ideas with as many trading partners as wish to join in will inevitability produce benign results for a democratic society. And since their confidence in these results is a matter of theoretical faith and not of empirical or historical observation — free speech is for them a religion with long-term rewards awaiting us down the road — they feel no obligation to concern themselves with short-term calculations and predictions.

Stevens also values robust intellectual commerce, but he believes that allowing corporate voices to have their full and unregulated say “can distort the ‘free trade in ideas’ crucial to candidate elections.” In his view free trade doesn’t take care of itself, but must be engineered by the kind of restrictions the majority strikes down. The marketplace of ideas can become congealed and frozen; the free flow can be impeded, and when that happens the only way to preserve free speech values is to curtail or restrict some forms of speech, just as you might remove noxious weeds so that your garden can begin to grow again. Prohibitions on speech, Stevens says, can operate “to facilitate First Amendment values,” and he openly scorns the majority’s insistence that enlightened self-government “can arise only in the absence of regulation.”

The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism. For a consequentialist like Stevens, freedom of speech is not a stand-alone value to be cherished for its own sake, but a policy that is adhered to because of the benign consequences it is thought to produce, consequences that are catalogued in the usual answers to the question, what is the First Amendment for?

Answers like the First Amendment facilitates the search for truth, or the First Amendment is essential to the free flow of ideas in a democratic polity, or the First Amendment encourages dissent, or the First Amendment provides the materials necessary for informed choice and individual self-realization. If you think of the First Amendment as a mechanism for achieving goals like these, you have to contemplate the possibility that some forms of speech will be subversive of those goals because, for instance, they impede the search for truth or block the free flow of ideas or crowd out dissent. And if such forms of speech appear along with their attendant dangers, you will be obligated — not in violation of the First Amendment, but in fidelity to it — to move against them, as Stevens advises us to do in his opinion.

The opposite view of the First Amendment — the view that leads you to be wary of chilling any speech even if it harbors a potential for corruption — is the principled or libertarian or deontological view. Rather than asking what is the First Amendment for and worrying about the negative effects a form of speech may have on the achievement of its goals, the principled view asks what does the First Amendment say and answers, simply, it says no state abridgement of speech. Not no abridgment of speech unless we dislike it or fear it or think of it as having low or no value, but no abridgment of speech, period, especially if the speech in question is implicated in the political process.

The cleanest formulation of this position I know is given by the distinguished First Amendment scholar William Van Alstyne: “The First Amendment does not link the protection it provides with any particular objective and may, accordingly, be deemed to operate without regard to anyone’s view of how well the speech it protects may or may not serve such an objective.”

In other words, forget about what speech does or does not do in the world; just take care not to restrict it. This makes things relatively easy. All you have to do is determine that it’s speech and then protect it, as Kennedy does when he observes that “Section 441b’s prohibition on corporate independent expenditures is . . . a ban on speech.” That’s it. Nothing more need be said, although Kennedy says a lot more, largely in order to explain why nothing more need be said and why everything Stevens says — about corruption, distortion, electoral integrity and undue influence — is beside the doctrinal point.

The majority’s purity of principle is somewhat alloyed when it upholds the disclosure requirements of the statute it is considering on the reasoning that the public has a right to be informed about the identity of those who fund a corporation’s ads and videos. “This transparency enables the electorate to make informed decisions.”

Justice Thomas disagrees. The interest “in providing voters with additional relevant information” does not, he says, outweigh “’the right to anonymous speech.’” The majority’s claim that disclosure requirements do not prevent anyone from speaking is, Thomas declares, false; those who know that their names will be on a list may refrain from contributing for fear of reprisals and thus be engaged in an act of self-censoring. The effect of disclosure requirements, he admonishes, is “to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights.”

Only Thomas has the courage of the majority’s declared convictions. Often the most principled of the judges (which doesn’t mean that I always like his principles), he is willing to follow a principle all the way, and so he rebukes his colleagues in the majority for preferring the value of more information to the value the First Amendment mandates — absolutely free speech unburdened by any restriction whatsoever including the restriction of having to sign your name. Thomas has caught his fellow conservatives in a consequentialist moment.

The consequentialist and principled view of the First Amendment are irreconcilable. Their adherents can only talk past one another and become increasingly angered and frustrated by what they hear from the other side. This ongoing soap opera has been the content of First Amendment jurisprudence ever since it emerged full blown in the second decade of the 20th century. Citizens United is a virtual anthology of the limited repertoire of moves the saga affords. You could build an entire course around it. And that is why even though I agree with much of what Stevens says (I’m a consequentialist myself) and dislike the decision as a citizen, as a teacher of First Amendment law I absolutely love it.