Wednesday, May 05, 2010


Lest We Take This "Free Speech" Thing Too Far....

Over at Concurring Opinions, a virtual symposium is surrounding a paper by Deborah Hellman, a University of Maryland Law (my alma mater) professor. Reading its title - Money Talks But it Isn’t Speech - you can probably guess that it seeks to challenge “…the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech and thus can only be justified by compelling governmental interests.” This is all in the wake of Citizens United although Professor Hellman certainly doesn’t limit her proposals to just corporate and labor union behavior. [And should you not be familiar with the Citizens United case, don’t feel bad; noted constitutional scholar Barack Obama is apparently unfamiliar with it also.]

The paper is some 38 pages but I think it fair that I ‘sound bite’ it with this quote:

If a constitutional right depends on a good that is distributed via the market, then the right must be understood to include the right to spend money to exercise it. If a constitutional right depends on a good that democratic decision-makers have determined is not to be distributed via the market, then the right ought not to be understood to include the right to spend money to exercise it.”

One of CO’s regulars, Frank Pasqualle, introduced the topic to the site thusly:

In the wake of the sweeping Citizens United decision, Hellman has returned to first principles in her article…”

Well, let me also return to ‘first principles”.

Many of us don’t recognize “free speech” as a “constitutional” right (alternatively, the right to counsel may be so described). This is because the First Amendment doesn’t give me the right to free speech; instead, it merely guarantees that Congress shall pass no law “abridging” that right. In other words, I have it as an unalienable right, with or without Congress…and I’ll be damned if I want to look toward such “democratic decision-makers” for an explanation of my distribution rights.

Further, the idea that introducing money into the discussion somehow modifies our freedoms is seemingly putting form over substance. Why should Bruce Springsteen be unable to give a $1,000,000 to the “This Time Hope for No Change” re-election campaign of President Obama but be allowed to headline a campaign fundraising concert that brings in the same amount? If we remember John Locke’s excellent observation that we all have a property interest in ourselves then money as a stand-in for our labors makes the idea of regulating its use in our political process seem at odds with the underlying ideals of our personal liberties. (Our governments certainly recognize this concept as bartering services are considered taxable events.)

I take very seriously the impetus of our Constitution as being an expression of consent of the governed and that our government is one of enumerated powers. I find it particularly distasteful therefore when politicians – oops, sorry - “democratic decision-makers” seek to find perceived loopholes within the document as an excuse to further regulate us (see, e.g., the constant misuse of the Interstate Commerce clause)…especially as, invariably, such regulations will primarily benefit the already in place “democratic decision-makers.” It is even more disheartening when such learned people as Professor Hellman (whom I’ve met, talked with at some length and genuinely like) act as further enablers of such regulatory impulses.

Okay, this brief rant is over. I will now mull the wonders of leftist ideology whereby the federal government is considered well within its authority to limit my spending on a constitutionally protected right like speech while concurrently justified in forcing me to spend more money on a potentially unwanted product like health care insurance. Of course, from their point of view, the limits of the former would prove useful in muting my opposition to the latter.

There’s a lot more to react to within her paper as well as to the comments of the other posters (here, here, here, here, here, here, here, here and here. ) and I encourage you to read them.

I agree with you--insofar as your argument applies to real people. But when applied to entities whose very existence is an intellectual construct, I disagree (and so agree with the court). You and I were endowed with inalienable rights by our creator... In creating corporations, legislatures ought to be perfectly free to decide which rights to endow them, and which rights to withhold from them.
I don't disagree nor do I think the Court would except that the effect of the law is to disfavor certain speech by certain corporations specifically because of the nature of the speech. The Net Effect is to allow certain individuals - under the guise of a corporation i.e. the NY Times) to opine on a subject that the individuals behind Citizens United individuals. Also, Prof. Hellman's paper - that I am responding to - makes no differentiation between individual and corporation.
Also when you say you agree with the Court, which one and when? - the Supremes overturned much of BCRA in the Citizens United case...which means they agreed with me as to corporations.

thanks for commenting
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