Sunday, November 22, 2015

The ACLU & Citizens United

I have spent a lifetime walking in near lock-step with the ACLU and its unwavering support of our fragile Bill of Rights, particularly the 1st amendment, and its laser-beam concentration on that amendment’s “freedom of speech, or of the press” clause.  God knows I could write a short book glorifying dozens of unpopular cases that the ACLU took on, and won.  But here I would like to register my dismay at their narrow reading of the issues in the Citizens United v. Federal Election Commission Supreme Court case of 2008 – 2011.  In this case, the ACLU submitted an Amicus brief for the film maker, and it was right to do so: Citizens United had every right to have its movie broadcast.  But the ACLU erred in siding with the Court in its expanded consideration of the place of money in politics.  Here is what they wrote for public consumption in defense of their position.

To sum up, they say: "For that reason, the ACLU does not support campaign finance regulation premised on the notion that the answer to money in politics is to ban political speech."  God forbid!  I would be the last person to attack the 1st amendment’s protection of speech, especially political speech.  But I don’t believe that is what is at issue here.  The issue as we see it is: how big a megaphone a speaker can use to be heard.  If I could take over the air waves, as John Galt did for his wonderful (and long) speech in Atlas Shrugged – to make myself heard, by everyone – I am pretty sure that the Supreme Court would not sanctify my actions under the rubric of protecting my right to speech.  But what is the difference here?  John Galt did two (separate) things: he took over the private property of the broadcast media, and he forced everyone to hear him, to listen to him.  The first action is clearly illegal: no private person (and no government) has the right to dictate to a private owner of media what he may broadcast.  The second action, the right to speak through a megaphone that effectively silences all other speakers, is less obviously illegal.  But a little reflection makes the case that no one is entitled to force anyone to listen to what he says.  But that is what happens if money is protected speech; it forces us to hear what is said, and that is not a legitimate part of freedom of speech.

But that is not the only issue that was not addressed by the Court.  If money is protected speech, and if corporations have the right to speak, no one else, no private person, will ever be able to speak and be heard.  Exxon-Mobil can throw a few billion dollars into the broadcast media without feeling its wallet get any lighter, and who else will ever be heard?  Of course, other corporations, but not me and not you.  There is NO PLACE for corporate speech in politics or in government; it speaks too loud by its nature.  We know we can lobby Congress for a redress of our grievances, but do you suppose that our Founding Fathers had the East India Company in mind airing its grievances in front of Congress?  I think not.  Corporations are artificial entities with vast power; the idea that they can have any equivalent representation in politics is an offense to anyone who has thought about democracy for a moment.  Does We the People include persons with names like Apple, Exxon-Mobil, Pfizer, General Motors?  I think NOT!

I would remind the ACLU that at the time of our Founding Fathers, “speech” was limited to soapboxes, beer halls, town halls, pamphlets and broadsides.  No one living then would have imagined radio, TV, 500 or more channels of 24/7 TV “news coverage” and, maybe not least of all, the internet and the Twitterverse.  The kind of speech that we (those who are upset with the Citizens United decision) are talking about “limiting” limits no “speech”; it only seeks to limit its volume or loudness, its coercion to listen, and its infinite repetition.  This kind of “speech” is not intended to explain, to clarify or to convince; its sole intent is to overwhelm the senses with the inevitability of whatever cause or candidate is being trumpeted over the airwaves to listeners who did not even choose to listen to this “speech.”

I exempt books, magazines and the internet from this argument; I exempt Citizens United's own video (their readership or listenership was voluntary).  Part of freedom of speech is freedom to listen or not, a freedom that is not available to a person when the “speech” is certain kinds of internet ads, all short radio ads, and especially short TV commercials.  Where speech is meant to bludgeon the listener and where speech inhibits other speech, it should not be protected.

Not to mention that every Constitutional advance that has extended Constitutional rights to more people has always extended those rights to individuals, never to groups or legal fictions; even the 14th amendment, the source of this terrible misunderstanding, meant to extend rights to individuals, in particular to slaves and former slaves; extending rights to corporations was a mistake, an error, even if it was deliberate.  And we seek not to take away rights from a formerly impotent class of individuals, we just seek to reaffirm the Constitution’s core principle, that it is We the People, who have rights and who are in charge, not our legal creations.

If I am missing any of the ACLU's argument, please straighten me out.