The unfairness of “fair speech”
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.
Here’s the argument: During political campaigns, corporations and wealthy individuals can use their resources to promote their views more effectively than the rest of us. The fact that their proverbial megaphone is larger than yours and mine is unfair. We need campaign finance laws to “level the playing field” and make sure everyone has an equal voice.
What is Olson’s response to this? He makes two points. First, he points out that campaign finance laws restrict the ability of the non-rich to speak as well; second, he observes that the First Amendment “does not permit the government to handicap speakers based on their wealth, or ration speech in order somehow to equalize participation in public debate.” Both these points are true, but they leave some crucial questions unanswered: What if the laws can be tweaked so as not to restrict the speech of the non-rich? Why does the First Amendment bar the government from “equalizing” participation in public debate? If “unequal participation” is unfair, how can we tolerate it?
What Olson doesn’t say is the one thing that needs to be said if Americans are to reject campaign finance laws: what campaign finance supporters call “fair” speech is anything but fair.
Those who acquire wealth through productive activity, whether individuals or corportions (which are nothing more than groups of individuals), have every right to use their “louder megaphone”: they earned it. They’ve earned the wealth that enables them to buy a commercial or launch a movie. They’ve earned the wealth that enables them to buy a newspaper or TV station. And once they buy the commercial, the newspaper, or the TV station, they still have to earn an audience if they want their message to get through (remember how successful Hillary Clinton’s well-financed presidential bid was?). What possible reason could make it “unfair” for these individuals to use their resources to support and further their political views? (If you aren’t convinced that’s a rhetorical question, ARC’s Yaron Brook addresses this point in depth at Forbes.com.)
In ordinary speech, “fairness” means justice: getting what you deserve—i.e., what you have earned. But the advocates of campaign finance laws twist it to mean equal results: everyone, they claim, must have “equal speech.” They are speech egalitarians.
But real fairness demands, not “equal speech,” but equal freedom–not equal megaphones or equal commercial time but the equal right to get your message out as widely as you can given your time, interest, resources, and persuasiveness. But that’s precisely what campaign finance laws prevent, by having government bureaucrats dictate what you can spend, how you can spend it, when you can speak, and what you can say.
Image: Wikimedia Commons