free speech — VOICES for REASON

The Citizens United case is a landmark. The Supreme Court struck down parts of America’s campaign finance laws—the parts that forbade corporations from speaking out during election season. I was fortunate enough to moderate a panel discussion on the case, called “Citizens United and the Future of Campaign Finance Law.” (Details on the panel members are here.)

The entire 72-minute discussion is worth listening to—all four panelists were excellent in presenting their diverging viewpoints—but if you’re pressed for time, I urge you to start with Prof. Eric Daniels’ 8-minute discussion of essential issues raised in the case. In this segment, Dr. Daniels makes it clear why he agrees with the result reached by the Supreme Court, but not with the Court’s reasoning. Along the way, he addresses some important questions:

• Is the First Amendment an instrument for achieving so-called social interests, or is it a safeguard of individual rights?
• Why do corporations spend as much money as they do on elections, and is that spending a symptom of a deeper problem?
• Are corporations exercising special privileges when they speak, or are the rights of individuals being exercised?

To locate the Daniels segment, let the video download (click here—may take a few minutes to finish) and then move the slider to the 36:25 mark.

Image: WikiMedia Commons

Most states have tax-funded film commissions that subsidize or grant tax credits to movie production companies, provided they agree to film scenes within the state’s borders. According to this article in The New York Times, some of these state agencies are getting nervous about the kind of films they are being asked to fund.

The Michigan film commissioner recently rejected a funding request from producers of a horror movie replete with “realistic cannibalism.” In Texas, a film company was told it need not apply for financing of a picture about the FBI’s Waco raid because of inaccuracies in the script. And in Florida, the legislature recently flirted with a proposal to deny tax credits to films that exhibit “nontraditional family values.”

There’s much to challenge in the notion of allowing states to lure in film production; for a start, look at how such programs violate the rights of taxpayers. These programs take money from ordinary taxpayers (a violation of their property rights) and use it to fund movies those taxpayers may well find abhorrent (a violation of their free speech rights).

The solution is not to dictate content according to some pseudo-standard such as “family values.” Rather, the solution is to end all government funding of film production. A state government’s job is to protect its citizens against criminals, not to attract moviemakers. Private individuals and companies wishing to attract film projects to their localities are free to offer whatever incentives (such as discounts on lodging, or attractive settings for filming) that they deem likely to benefit themselves.

Hollywood is quite capable of finding investors to fully finance its ventures. Producers who cannot attract private financing have no right to draw from the public treasury—whether their films depict cannibals eating human flesh, or Bible-toting families gathered for a Sunday picnic.

[Update: Thanks to Steve Simpson at the Institute for Justice for linking here. Welcome, readers of Congress Shall Make No Law, IJ's free speech blog.]

Image: WikiMedia Commons

When the Supreme Court ruled that the government has to respect the right of corporations to engage in political speech, opponents of corporate speech (Obama included) put their weight behind the DISCLOSE Act. The Act reads like a grab-bag of policies united only by their intention: to place as many burdens as possible on groups that want to exercise their First Amendment rights.

DISCLOSE has been winding its way through Congress, but it faced strong opposition by the National Rifle Association (one of the groups subject to the proposed law). That is, until the House Democrats agreed to carve out an exception to the bill which–wouldn’t you know it–exempts the NRA from the Act’s speech-squelching measures. The exception was narrowly tailored so that only the NRA and a handful of other organizations (such as AARP) qualify. In return for this special favor, the NRA has agreed not to actively oppose the bill.

The lesson from Washington: free speech is no longer something you preserve by asserting your inalienable Constitutional rights–it’s something you preserve by throwing around your political clout.

In his New York Times column, Ross Douthat recounts the backstory behind the death threat—posted on a Muslim website—against the producers of “South Park” and discerns a broader issue. He argues plausibly that Comedy Central’s decision to bleep out references to “Mohammad” and remove the supposedly offending episode is part of a larger pattern of self-censorship in our culture.

What concerns him is the apparent lopsidedness of the self-censorship: practically every value and idea today is subject to criticism in popular culture, whereas the “South Park” incident is “a reminder that Islam is just about the only place where we draw any lines at all.” There’s something to that observation (though I don’t subscribe to Douthat’s explanation of it); but I want to put that aside for the moment to isolate a widely ignored, and broader, point. What he and others who echo this line overlook (or evade?) is that self-censorship in North America and (to a far greater degree in) Europe is in significant part a function of governments’ failure to uphold the freedom of speech.

The guardian of that right is the government — and it’s AWOL. To put it mildly.

The pattern we’ve witnessed in previous crises—from the death decree against author Salman Rushdie in 1989 to the Danish cartoons crisis, and similar cases—is the refusal of our political leaders to defend us against threats to our freedom of speech. Worse: we’ve seen them genuflecting before and seeking to appease aggressive Muslim activists and their backers. (I touch on this in Winning the Unwinnable War.) Yes, there have been publishers and TV networks and bookstores that exhibited fear, and perhaps cowardice, in the face of such threats. But when our government issues limp, apologetic statements mollifying the aggressors—and effectively leaves writers, publishers, filmmakers and everyone else unprotected from the threat of reprisals by would-be Islamist enforcers—is it surprising that self-censorship grows?

Stanley Fish, a self-confessed opponent of free speech, reports on a meeting of First Amendment scholars. It provides some fascinating insights into how these scholars think about free speech issues.

One point that I found particularly interesting–or, rather, hair-raising–was the view that the government can regulate the “volume” of speech without undermining freedom of speech.

You may have heard this “volume” metaphor before: supporters of campaign finance regulations frequently use it to suggest that some people’s speech will “drown out” others, the way that a rock band drowns out your voice when you go to place a drink order at a concert. But that’s a false comparison: Rush Limbaugh can pontificate all he wants and that doesn’t prevent me from speaking. (You’re reading this blog, right?)

But the argument Fish describes puts a new twist in that metaphor, and claims that Read the rest of this entry »

The Federal Communication Commission’s crusade to impose net neutrality rules on the Internet hit a speed bump Tuesday. A U.S. appeals court ruled that the FCC exceeded its regulatory authority when it sanctioned Comcast for slowing down bandwidth hogs on its network and issued net neutrality guidelines for ISPs. (Net neutrality is a murky term meaning, roughly, that the government should regulate the Internet in order to ensure that all data is treated equally.)

This is good news for proponents of Internet freedom. As my colleague Alex Epstein has written:

Because the Internet is based on voluntary association, no one can properly compel others for their ad space, bandwidth, publicity–or network priority. Those who create these values have the right to use and profit from them as they see fit. Google has no more right to demand that Verizon be “neutral” with its network than Verizon has a right to demand that Google be “neutral” with its coveted advertising space. . . . Read the rest of this entry »

“The censorship we now confront is vast in its reach,” wrote Justice Anthony Kennedy on behalf of a Supreme Court majority in Citizens United v. Federal Election Commission. He was referring to the speech bans that since 2002 have muzzled corporations under the McCain-Feingold campaign finance law.

No more. The Citizens United decision struck down the ban, not only liberating America’s corporations to speak out during campaigns but also unleashing a torrent of commentary, both praising and denouncing the Court’s actions. As the heated debate gets hotter, a timely panel discussion is slated for Tuesday, March 16, in Washington, D.C., hosted by the Ayn Rand Center for Individual Rights and the Institute for Justice.

“Citizens United and the Future of Campaign Finance Law” will feature a lively debate among three lawyers who filed briefs on opposite sides in the case, and an academic expert on the history of free speech. I’m fortunate enough to be moderating the event, which will review the case in historical context, evaluate its merits, and look to the future. One crucial issue on the table is whether such regulations should survive at all.

Read the rest of this entry »

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 »