Free Speech For Some, Silence For Others
September 10, 2009
Writing at the blog of the American Constitution Society (though I often wonder which constitution they’re talking about), Bert Brandenburg of Justice at Stake tries to take on the Citizens United free speech case argued in the Supreme Court yesterday. Gavel Grab pointed it today.
With all the nervous speculation on the left that Citizens United will win its case, leading to even more sections of the McCain-Feingold campaign law and other restrictions on free speech being struck down, Brandenburg tries to link Citizens United to the Caperton v. Massey case decided (wrongly decided, I think) earlier this year. Brandenburg argues that there’s too much “special interest” money around elections.
But whatever Brandenburg thinks, there’s no hard evidence linking “corruption” to political contributions to the judiciary - or in the election process, which is the real subject of Citizens United. None. As Ted Olsen argued for Citizens United. “there is simply no evidence that corporate and union independent expenditures have a ‘corrosive and distorting effect’ on the election process.” Olsen is right. And it’s the other side’s - Brandenburg’s side’s - burden to prove that assertion, not Citizens United’s.
Justice at Stake has been widely reported to be extensively funded by George Soros and other liberal donors. If Brandenburg is so concerned about the supposedly corrosive influence of money on politics, then why not support shutting down Soros’ and Justice at Stake’s speech rights before an election? Brandenburg has no problem with a billionaire financing a multi-million campaign to put one-third of our state governments under special interest control. So is the issue money or not?
If his defense is that Justice at Stake is not a corporation and that corporations (and unions) are somehow special, so what? Why does he believe in free speech for some but not for everyone? Why should it matter what form an organization takes as to whether it can have the same free speech rights as everyone else?
Not everyone is as rich as George Soros. (Most corporations aren’t as rich as George Soros.) Not everyone can fund organizations like Justice at Stake to do their bidding. Instead, people join together - including in business corporations and labor unions - to advance their economic interests. Their First Amendment rights shouldn’t stop at election time.
If corporations spend too much on political advocacy, the shareholders can call the board to account - or vote its members off the board. Actually, in the example he cites, I think the shareholders of Massey Coal would like to see the corporation’s money used to advance the interests of the coal mining industry. (And I bet the United Mine Workers union would be right there with them.) And with both today’s extensive contribution disclosure rules and an army of bloggers, corporate and union contributions wouldn’t be secret at all. They’d be exposed for everyone - including the voters - to see.
You’d think something called the American Constitution Society would be for free speech and the entire First Amendment. Apparently, you’d be wrong. Instead, it’s free speech for some, but not for all.
But don’t just take my word for it. Listen to the words of someone who I thought would be a hero to the American Constitution Society and its supporters, Justice Louis Brandeis, in his concurring opinion in Whitney v. California: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”[1]
Brandeis is right and Brandenburg is wrong. More speech, not silencing speech, is the only appropriate policy in a democracy. Corporations and unions deserve free speech rights as much as Justice at Stake does.
[1] Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).
Posted by Dan Pero in the categories: Justice at Stake, Supreme Court
One Response to “Free Speech For Some, Silence For Others”
Why should we citizens vote, if our elections and in the end our government, could be buyed by the highest “bidders”?
(observe the irony)
A “democracy” controlled by corporations and unions seems to already been tested in old Soviet Union. This type of “democracy” has been called communism.