Wednesday, July 11, 2012


Money and Free Speech

I am a member of a group of retired men who meet once a month to discuss matters of interest.  Meetings are held on Wednesday, usually the first Wednesday in the month, at the Community Church in Woodland Hills near the golf course.  In the most recent meeting on July 11 we celebrated the 21st anniversary of the founding of the group.  One of the matters of concern was the recent decision of the Supreme Court that corporations and labor unions are “persons” and enjoy the right of free speech as specified in the Constitution.

I chose to play devil’s advocate and presented a defense and justification of the Court’s decision.  I agreed with most of the group members that it was a bad decision.  However, the Court tells us what the Constitution says.  There is a simple rule: the Court is always right, even when it is wrong and stupid.

Before I proceed to “explain” or “justify” the Court’s decision, I should quote the exact language of the first Amendment, which follows:
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
As you can see, whoever wrote this amendment didn’t bother to define what is meant by “freedom of speech” or “freedom of the press.”  We must presume that in 1789 when the first ten amendments were adopted that everyone knew or had a settled opinion as to what these phrases meant.  Here’s what they mean to me:
Freedom of speech:  The right of any person to express in speaking or writing or acting out any opinion or asserted fact without interference by a recognized authority.
 Freedom of the press:  The right of any person or group to publish any opinion or asserted fact without interference by a recognized authority.
In 1789 the recognized authority was government.  The colonists had experienced efforts of the British government to suppress the expression of certain ideas or alleged facts that were critical of the government.  I conclude that the first amendment was a ban on any action of the federal Congress to interfere with free speech or free press.  The first word in the amendment is, in fact, “Congress.”  Presumably a President or a court or a State would not be bound by the limitation of the amendment.  Subsequent Court decisions based on the “equal protection” clause of the fourteenth amendment extended these limits on actions by Congress to actions by other federal and State government bodies as well.

My devil’s argument was as follows:  The amendment prohibits government from doing anything that interferes with my right to express and publish my opinions and allegations.  Therefore I am free to spend as much money as I choose to express and publish them.  I am also free to spend my money to support the expression and publication of opinions and allegations of others.  Hence, any law restricting the amount or the way money is spent in an election campaign is unconstitutional.

This conclusion is logical and is supported by the explicit language of the first amendment.  It’s also insane and stupid.  The basic point of having freedom of speech and a free press is to make available to the public as many different views and allegations of fact as possible.  In 1789 it was government that generally imposed limits on this freedom.  Today a wealthy individual can spend money not only to present his or her own opinions and allegations but to drown out similar expressions by others, particularly others who do not have much money.  The insane and stupid part of the Court’s thinking – or at least the majority of the Court – is to equate money with speech.  Money not only allows me to express my views.  Enough money allows me to drown out and suppress the expression of other views.  This is reality in the year 2012.  The ability of money to suppress free speech and a free press was something that had never been experienced in 1789.

Our Constitution is a continuing experiment.  It is not an absolute end in itself but a means to an end.  The end is a representative government and a country in which the public enjoys the advantage of having easy access to all sorts of views on what public policy ought to be.  Our founding fathers knew that only if the voters were well informed could the experiment of self-government work properly.  When large sums of money prevent the voting public from being well-informed, the result is bad government policy.  This is a reality that our Supreme Court persistently ignores.

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