free speech — VOICES for REASON

In Citizens United v. FEC, the recent campaign finance case I discussed here and here, the Supreme Court noted that one of the arguments for restricting corporate speech is that “[s]tate law grants corporations certain advantages–such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets.” According to this line of argument, corporations are “creatures of the state” and they give up any claim to First Amendment rights in exchange for special state-granted favors.

In answer to this argument, the Court quoted a dissent by Scalia from a previous decision: “It is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights.”

The Court, which admirably upheld the free speech rights of corporations, took it for granted that corporations wouldn’t exist save for special favors from the state. It’s a common view of corporations. But it’s one that must be questioned.

There’s reason to think that all of a corporation’s essential features–”corporate personhood,” perpetual life, and limited liability–could arise by voluntary agreement among individuals on a free market, without a single government favor. Consider what many regard as one of the most controversial features of a corporation, limited liability. Read the rest of this entry »

Jeff Scialabba and I have already addressed most of the substantive arguments Ralph Nader and Robert Weissman raise in their Wall Street Journal op-ed “The Case Against Corporate Speech” (see here, here, and here). But this is revealing:

Corporations know that money makes a big difference when it comes to blocking protections for workers, consumers and the environment. Wall Street, health insurance and drug companies, fossil fuel and nuclear power companies, and defense corporations have been hard at work defeating common-sense reforms that would make them more accountable.

Do we want more elected officials to believe that to challenge corporate agendas is to risk their career?

This means: “We should restrict corporate speech because it interferes with us passing our anti-corporate agenda.” As my colleague Onkar Ghate has pointed out, the same argument could have been made by segregationalists during the sixties: “We should restrict speech by blacks because it interferes with our anti-black agenda.”

Image: flickr

The recent Supreme Court decision in Citizens United v. Federal Election Committee knocked down long-standing restrictions on corporate and union contributions to political campaigns and was a definitive move toward the restoration of free speech in America. Yet many Americans are up in arms over the ruling, viewing the decision as an invitation for rampant corruption in Washington. While people are right to be concerned about political corruption, there’s a serious misunderstanding here about what gives rise to it and how it can be eliminated.

As Yaron Brook explained in a 2008 forbes.com op-ed, the problem is not the “allegedly corrupting influence on money on politics,” but rather subjecting “political speech to the corrupting influence of government control.”

It’s true that in a free system, money does give you a greater ability to get your message out; this is precisely one of the reasons it’s desirable to earn wealth. If this is what campaign finance advocates regard as corrupt, which system would they regard as uncorrupt? One in which a person’s ability to promote his viewpoint is unrelated to the financial resources he’s earned (whether personally or through voluntary contributions).

This is why campaign finance advocates have not been appeased by McCain-Feingold, and are calling for complete public financing of political elections. Under such a system, candidates would no longer have to financially earn the platform from which they speak; instead, the government would furnish candidates with your tax dollars. Of course, not every potential candidate could receive public funding under such a system: Only “serious” candidates would.

Who decides which candidate is serious? Those presently holding government power. There is no surer way to create a political aristocracy in America.

But what of the fear of corporations supporting politicians in exchange for favorable legislation? Isn’t that a form of corruption justifying restrictions on their freedom of speech? The real question is: Just who is corrupting whom? Read the rest of this entry »

Last week’s Supreme Court ruling, which struck down restrictions on certain kinds of political speech by corporations, was a profoundly important decision. Not only did it eliminate the most odious parts of McCain-Feingold, but it did so largely for the right reasons. In particular, the Court recognized that a corporation is an association of individuals, who retain their First Amendment right to free speech. I highly recommend reading the decision in its entirety.

The decision couldn’t have been more timely. The purpose of the First Amendment is to protect our ability to communicate our views without interference by the government. Politically, it is, as James Madison called it, “the only effectual guardian of every other right.” By enabling us to freely criticize our leaders, it is the best and last defense against the threat of unlimited government power.

As this blog has argued at length, Obama has been making an alarming grab for power since the day he entered office. He has shown nothing but contempt for economic freedom and limited government–and now he is seeking to silence those, corporations in particular, who challenge him. Read the rest of this entry »

A thoughtful reader sent in a comment I’d like to discuss, in response to my post, “What are the property rights of mall owners?” In that post, I argued that a private shopping mall’s owners have the right to decide what conduct is permissible on their property. In the particular case at issue, a mall was being sued because it had called the police to remove protestors who were urging shoppers to boycott the mall.

My commenter wrote this:

Mall owners hold their property out as a public space for people to gather, shop, get entertained. Seems unfair to allow them to hold themselves out as a public asset, get public financing in many cases, provide space for public events (which many malls do), and make serious dough doing so, without expecting that they would be treated as a semi-public place when it comes to Constitutional protections for free speech at the core of our democracy.

I don’t see why property owners need special protections from democratic principles.

This comment certainly reflects widespread views, but it contains a number of confusions (for instance, confusions over the meaning of “democracy” and over the meaning of the Constitution’s protection of free speech). For now, though, I want to focus on just one confusion. It’s this idea of a “public space” as any area where members of the public who are strangers to each other might congregate for a common purpose.

Read the rest of this entry »

The House recently voted to expand federal “hate crimes” to include those committed because of the victim’s sexual orientation. The New York State legislature succinctly stated the case for these laws in its Hate Crimes Act of 2000: “Crimes motivated by invidious hatred toward particular groups not only harm individual victims but send a powerful message of intolerance and discrimination to all members of the group to which the victim belongs.” Thus, if someone commits a crime motivated by an idea the government deems “hateful,” he faces special penalties.

Despite the denials of “hate crime” law supporters, this criminalizes certain ideas. If the government can punish a criminal more harshly based on the “message of intolerance and discrimination” he sends through his crime, then the inevitable conclusion is that sending a “message of intolerance and discrimination” is a crime. Most Western countries have made that explicit: even Canada punishes “hate messages.” Read the rest of this entry »

Would you stake $11,000 on your ability to read the mind of a faceless bureaucrat? Well, you’re going to have to come December 1, if you decide to blog about books or other products.

The Federal Trade Commission has issued new guidelines that force bloggers who receive cash or “in-kind” payments to review a book or product to disclose that fact. What does that mean in practice? That’s a good question. Read the rest of this entry »

Four years ago this week, the Danish newspaper Jyllands-Posten published twelve cartoons featuring Mohammad. What followed, some months later, was an outright assault by Muslim activists and regimes on our freedom of speech. Aftershocks from that crisis continue to erode free speech in the West. A recent example was the decision by Yale University Press to cut all images of Mohammad from a book on the cartoons crisis(!). The stated reason for that move was the publisher’s fear of violent Muslim reprisals.

In an interview with the Foundation for Individual Rights in Education, Flemming Rose, the editor behind the notorious cartoons, talks about the incident at Yale and free speech. One of his comments — about the response of U.S. publishers to a book he’s writing on the crisis — was particularly illuminating:

[FR] Yes, I am still in the process of writing this book. Hopefully it will be published in Denmark next year. In fact, I already have had contact with some top publishers in the U.S., but it was my impression—though I can’t prove it—that they were quite positive to the book, but when I said that I couldn’t imagine a book without the cartoons, they lost interest.

I wonder just how much self-censorship is going on today.

Regarding the Yale U.P. book that was stripped of all visual depictions of Mohammad, Mr. Flemming quips that it seems “…Al-Qaeda has been appointed editor-in-chief of Yale University Press.” To me that aptly names the stakes: until our government takes a principled stand and firmly upholds our right to free speech in the face of intimidation and threats, we in effect subordinate our liberty to Islamic religious dogma.

This is scary.

The Centers for Medicare and Medicaid Services launched an investigation into Humana Inc.’s effort to enlist beneficiaries to fight proposed cuts to Medicare’s private plans.

The investigation, launched Friday, is looking at whether Humana, one of the largest providers of Medicare Advantage plans, violated marketing rules by sending letters to beneficiaries in Michigan, Florida and other states urging them to contact lawmakers to register their opposition to proposed cuts.

The letters state that “millions of seniors and disabled individuals could lose many of the important benefits and services that make Medicare Advantage health plans so valuable”—a claim congressional Democrats say is false.

CMS is also examining Humana’s online Partner program, which automatically drafts letters that people can send to their lawmakers opposing cutbacks. Officials on Friday requested that the company stop the mailings and shut down the Web site.

Now I’m no fan of Medicare Advantage, which is simply a government health care program with a market facade. And it’s true that since Humana makes about half its money from the program, it’s subject to strict marketing rules governing its communications with its customers. But it is painfully obvious—and alarming—that Humana is not being investigated for its “marketing” practices. It is being investigated because it had the gall to challenge the assertions of a member of Congress. Read the rest of this entry »

The Supreme Court just heard arguments in the case of Citizens United v. FEC concerning whether the government was right to ban Citizens United from airing Hillary: The Movie during the ‘09 elections. You might think that in a country with a First Amendment that would be a short discussion, but under our campaign finance rules, the government imposes severe restrictions on political speech.

One of the attorneys for Citizens United, Theodore Olson penned a Wall Street Journal piece explaining the case and criticizing campaign finance restrictions more generally. While he makes a number of good points, he dances around one of the key arguments used to support those restrictions.

Read the rest of this entry »