Publius Speaks

Publius Speaks
Become A Follower

Sunday, November 25, 2012

“Citizens United” Undermines Free Speech

“The Court's ruling effectively freed corporations and unions to spend money both on ‘electioneering communications’ and to directly advocate for the election or defeat of candidates (although not to contribute directly to candidates or political parties).” (Wikipedia).

In Citizens United v. Federal Election Commission, it is clear that the majority argued that the First Amendment keeps the government from interfering in the "marketplace of ideas" and "rationing" speech, and that it is not up to legislatures or courts to create a sense of "fairness" by restricting speech.  Such hogwash!  Legislatures and courts restrict and regulate speech all the time.  For instance, try planning to foment an action that could be interpreted as terrorism.  Use face book or E-mail to communicate the plan with friends.  The Patriot Act will come into play and you will be arrested.  Try slandering your ex-spouse by calling him a child-abuser.  Will you be liable for slander and will he sue you for slanderous speech?  Is fairness involved?  Of course it is, as there always is in the finding of the courts against a plaintive or defendant in a slander trial, or hate speech trial or false advertising trial.  Try harassing someone by what you say or write. Think you can get away with it by pleading “free speech”?  Not likely. 

Speech is already restricted.  There is no such thing as completely free speech, because some forms of speech can lead to consequences that are criminal.  Take  a perpetrated scam for instance.  Try getting out of that particular criminal behavior by pleading innocence on the basis of free speech.  Think you can say anything you want to, even though it might harm someone else?  Think again.  You can’t yell “Fire” in a crowded theater if there is none. You can’t slander someone; you can’t scam someone; you can’t claim something for a product or a service that is patently false as in “false advertising.”  Try speaking malevolently about a group of people such as gay persons, or about an ethnic group such as Afro-Americans.  Hate speech is now restricted and penalties are in place.  Try malevolent speech aimed at harming a politician or an office-holder; you will risk being arrested even though you actually never carry out your threats. 

Oh, and try speaking on-line in any way you choose.  There are many websites that do not allow “inappropriate speech” and you risk being disengaged from that site if you insist on violating their restrictions or are reported as doing so.  Free speech?  I’m sorry.  Your free speech ends at the point where it impinges on someone else’s life in a harmful or distorted or abusive way.  “Free” speech is not unlimited speech or  unrestrained speech.  Justice and fairness are always being judged by legislatures and courts.  To say otherwise is simply fantasy.  And, the Supreme Court conservatives are full of such fantasy judgments.

The conservative majority challenged the reasoning in Austin vs. Michigan Chamber of Commerce  that the "distorting effect" of large corporate expenditures constituted a risk of corruption or the appearance of corruption. Rather, the conservative majority argued that the government has no place in determining whether large expenditures distorted an audience's perceptions, and that the type of "corruption" that might justify government controls on spending for speech had to relate to some form of "quid pro quo" transaction: "There is no such thing as too much speech."  Justice Stevens in his dissent argued that independent expenditures were sometimes a factor in gaining political access and concluded that large independent expenditures generate more influence than direct campaign contributions. Furthermore, Stevens argued that corporations could threaten Representatives and Senators with negative advertising to gain unprecedented leverage.

The conservative Justices apparently do not live in the modern world.  To even say that corporate expenditures do not have a risk of corruption or even the appearance of corruption is to believe that corporate money does not have a distorting power at all.  Yet, take a look at corporate advertising in TV commercials particularly.  TV commercials are rampant with psychological gambits that distort reality.  They are rife with claims that cannot be substantiated.  They are meant to persuade and cajole the viewer into a state of belief in what they are selling; what they fear most is that the viewer will not accept the corporate “pitch”.  TV commercials are intended to distort one’s own reality into the reality of the corporation doing the advertising.  They cajole, they distort, they lie, they pander, they tend to “corrupt” one’s own beliefs and principles and actions if they can in order to sell their service or their product.  One might even go so far as to say that corporate speech is all about corruption in the broadest sense:  a corrupting influence.  Corporate ads tend to influence one toward acceptance of a distortion of one’s reality in order to be able to sell us a product or a philosophy or a way of living.

Take cigarette advertising from our recent past.  It tried to make you want to smoke, not by lauding the contents of the cigarettes, but by distorting your own view of reality.  The tobacco industry sold much more than cigarettes; they sold a style of life; they sold sophistication; they sold a distorted reality that one could be considered to be like the Marlboro Man; they sold the idea that smoking was healthy and showed smoking doctors to prove it.  Cigarette advertisements, and their progenitors, were the epitome of distortion and corruption.  My mother died at age 52 from a cerebral hemorrhage because her life and her beliefs were corrupted and distorted by the tobacco industry.  She knew tobacco was not her friend; that it was contributing to her ill health.  But she still sent me to the store for a carton of cigarettes whenever she was running low (two packs left in the old carton).  She was addicted to tobacco because the industry sold her the lie that smoking was not injurious to health.  The conservative Supreme Court Justices have perhaps forgotten the corrupting influences of the tobacco industry who kept Congress, state legislatures, and even the courts “in line” with their lies and distortions by spending great amounts of corporate lobbying money until finally it all came to a conclusion that could no longer be hidden or ignored:  too many were dying of smoking-related causes, and scientific reality caught up to distorted reality.  

But somehow the conservative Justices missed the boat by arguing that corporate money does not corrupt the market place of ideas, or that governments should not decide whether large expenditures of money by corporations distort an audience’s perception, or that only a “quid pro quo” constitutes corruption, or that there is no such thing as too much speech.  Too bad they forgot all the legislation that resulted from the lies and distortions by the tobacco industry.  Too bad they forgot all the court decisions that shot down laws made under the influence of tobacco industry lobbying money that distorted reality.  Too bad they forgot the summary judgments issued by the courts against the tobacco companies for their lies and distortions.  Too much free and unfettered speech by means of corporate lobbying is worse than “quid pro quo” because it goes to the corruption of reality, beliefs and principles of sound living.  Free and unfettered speech can destroy as well as preserve or innovate.  It is the mission of the legislatures and the Courts to determine which is which, as they finally did with the curtailing of false advertising by Big Tobacco. 

Fortunately, Justice Stevens in dissent reminds us of the nature of corporations.  Stevens argued that the unique qualities of corporations and other artificial legal entities made them dangerous to democratic elections. These legal entities, he argued, have perpetual life, the ability to amass large sums of money, limited liability, no ability to vote, no morality, no purpose outside of profit-making, and no loyalty. Therefore, he argued, the courts should permit legislatures to regulate corporate participation in the political process.  Hooray for Justice Stevens!

The conservative judges also asserted that the public has a right to have access to all information and to determine the reliability and importance of that information. Additionally, the majority did not believe that reliable evidence substantiated the risk of corruption or the appearance of corruption.  What fools these mortals be!  Reliable evidence and information is not what corporations are peddling.  Big Tobacco, Big Oil, Big Coal, Big Whatever are not in the business of providing reliable evidence so that the public can make informed decisions.  In fact, the “Bigs” do not want the public to be well-informed lest they make decisions that do not turn a profit. 

Natural gas extraction from the earth is now a major issue because Big Energy sees big dollar signs whenever they discover more shale deposits from which they can draw natural gas.  Unfortunately, the process by which that gas is being extracted (“hydro-fracking”) has not been proven to be environmentally safe for the people who live on the affected lands.  The chemicals used in the extraction process are potentially hazardous to drinking water, land use, and human consumption of produce grown near those fracking sites.  Are the corporations involved providing all the information necessary for the public to make a decision about hydro-fracking?  Not on your life.  They are instead using corporate money to lobby for drilling rights, to promote hydro-fracking as a safe procedure, to distort the results of studies of the effects of such extraction, and above all to convince the public that job-creation is more important than environmental safety. 

The corrupting influence of the Natural Gas companies is reminiscent of Big Tobacco, but more so of the Chemical company involved in the Love Canal debacle of decades past (1970s) when a local newspaper brought to light that a 36 square-block area of  the city of Niagara Falls was contaminated with 21,000 tons of toxic waste buried underground by Hooker Chemical (now Occidental Petroleum Corporation) in the 1950s.  Liability for the toxicity was denied by Hooker Chemical until the deaths and birth defects became overwhelming enough to spur real investigations and a finding of negligence and the settlement of subsequent lawsuits brought by individuals.

The corrupting influence of corporate speech begins with the distortion of information, not with a quid pro quo.  That is what the Justices missed.  They themselves distorted the issues in this case in order to protect the coercive and blatantly distorted speech of the corporations.  There is no such thing as undistorted speech from corporations that deal in profits, selling, and marketing.  Distortion is their bread and butter.  It is how they get us to buy, and to feel good about spending our hard-earned dollars.  The conservative Justices are naïve in their belief that there is no corruption or appearance of corruption when distortion and coercion are at the heart of corporate speech and influence. And why is that?  Justice Stevens in dissent alludes to the reason:  corporate spending on politics should be viewed as a business transaction designed by the officers or the boards of directors for no purpose other than profit-making. Stevens called corporate spending "more transactional than ideological".

Apparently, the majority opinion also relied heavily on the reasoning and principles of the landmark campaign finance cases of Buckley and First National Bank of Boston v. Bellotti, in which the Court struck down a broad prohibition against independent expenditures by corporations in ballot initiatives and referenda. The majority argued that to grant First Amendment protections to media corporations but not others presented a host of problems, and so they concluded that all corporations should be equally protected from expenditure restrictions. 

And now, we all are bearing the consequences of the decision of the five conservative Justices.  We now have unrestricted third-party political advertisements by corporations and individuals through the advent of Super PACs.  Unfortunately, those advertisements are not meant to support a particular candidate or a particular issue, but are overwhelmingly negative in nature, meant to distort one’s view of whatever issue or candidate the donor opposes.  These advertisements follow a pattern of distortion, misleading and false information, outright lies, and innuendo.  They are not in any way constructive.  They are a form of corruption.  That is, they distort the process of sorting out the best candidates; they distort the character of the opposition, and most of all they are secretive.  There is no requirement that the perpetrators of such ads must come forth to approve the ads or to reveal their intent, or even to say who is funding them.  One of the aspects of “secretiveness” is that of concealment; another is that of “not open”.  The majority of Justices has willingly consented to a falsity, a covering-up, a reduction of the amount of information that they said would contribute to the public being able to make informed decisions.  So here they are contradicting themselves, and providing the very means by which corruption can take place. 

In spite of the Justices’ decision, corruption is not the main problem.  The main problem with the free political speech granted to corporations (as individuals) is that their ability to spend enormous amounts of money on political advertising is a distortion, and indeed a corruption, of the right of other individuals to an equal quantity of free speech, and to the equity of one‘s vote.  By granting free speech rights to corporations, and allowing them to spend unlimited amounts of money, the Supreme Court has unwittingly distorted and minimized the free speech of all those who cannot afford to equal those expenditures.  In other words, the Court has given an enormous advantage to the rich that is not available to others.  They have distorted the electoral process so that “one man, one vote” no longer has meaning.  It is now one substantial corporation or rich person against whom only a huge association of other persons can stand.  Our speech, our voices, our political clout has been undermined by a Court decision that by its very nature, introduces inequity into the electoral process.      

The conservative wing of the SCOTUS missed the point of this in more ways than one.  They said that corporate spending was not corruptive.  They claimed it does not even approach the level of the appearance of corruption.  But the very nature of corporate advertising is to distort and corrupt.  The justices said that we should have all the information we need to make political judgments, but they missed the point that corporations tend to limit the amount of information provided the public so that the public can be lured into their reality.  The five conservative Justices unwittingly allowed secretiveness to conceal, not only truth, but the perpetrators of negative and false advertising about candidates and issues.  They thus introduced into the electoral process the very thing they had touted: the concealment of substantive information from the public. 

In my opinion, Citizens United is not just a bad decision; it is a corrupting decision because it distorts the electoral process and destroys the one person, one vote principle.  Ill-conceived is too polite a phrase for this failure to understand the coercive power of money, and the corrupting influence it has on our electoral process.  Citizens United must be over-turned!