Immoral Maxim #7: Freedom of Speech & $talk

Maxim #7: Freedom of Speech, Corporate Rights, Obscenity, and the Power of Money.

From Amendment I: “Congress shall make no law ... abridging the freedom of speech, or of the press...” (1789)

“...To eliminate voluntary associations [e.g., corporations] - not only including powerful ones, but especially including powerful ones - from the public debate is either to augment the always dominant power of government or to impoverish the public debate.” Antonin Scalia in Austin v. Michigan Chamber of Commerce (1990).

“Money doesn’t talk, it swears!” (Bob Dylan)

Also in Austin, Antonin Scalia contends that the corrosive and distorting effects of immense aggregations of wealth [i.e., corporations] upon the political debate is “poetic metaphor.” I can almost hear John C. Calhoun describing abolitionist literature criticizing the whip and the lash of slavery as ‘poetic metaphor’ undermining the civilizing effects of Christianity. [LCHj]

Both in the majority and minority Scalia has argued in a number of cases that corporate spending on political speech is essentially a form of protected political speech. [F 7-1] Whether in dissent or in the majority he has almost always argued that campaign finance laws should be further restricted or overturned. In a related case, Caperton v. A.T. Massey Coal (2009), he found no reason to require a West Virginia judge to recuse himself from a case involving a campaign contributor whose single contribution of well over $2,000,000 exceeded the spending of all other contributors combined.[F 7-2] Scalia has even suggested that those who are wealthy should be encouraged to have additional influence precisely because they are wealthy.[F 7-3], [F 7-4] Unfortunately, once Scalia embarks on one of his attempts to rhetorically frame an issue which he feels passionately about, he frequently loses contact with reality. Thus, again in Austin, Scalia contends that “the corrosive and distorting effects of immense aggregations of wealth” [i.e., corporations] upon the political debate is “poetic metaphor.” Pure nonsense. Greed is, according to the Roman Catholic faith that Scalia professes to believe, is one of the seven deadly sins. More importantly, with decisions like Dred Scott, Lochner v. New York (1905), and Adkins v. Children’s Hospital (1923) in the Supreme Court’s own résumé, it is clear that our Supreme Court has, all too often, viewed the political scene thru a pronounced plutocratic lens. Slavery, child labor, 80 hour weeks, workplace injuries and deaths, and — today — environmental degradation have all been empowered — sometimes for decades — by decisions of the Supreme Court which have cloaked entrenched interests with a sheen of legal respectability. {Special Footnote VII-A} Scalia’s fundamental propensity in campaign finance controversies is to reduce legitimate governmental monitoring of corporate wealth to (1) prosecuting individuals’ fraud and to (2) requiring (some) transparency in the sources of campaign contributions. His glaring lack of institutional self-awareness is unusual even for a judge.
Scalia’s well-funded defenders within the corporate world appreciate his articulate and sometimes telling critique of self-serving governmental interests or competing private interests which are either evident or hidden within legislative attempts to control the spendings of lobbyists and corporations. I appreciate some of his arguments as well. Fine! However, Scalia should not be a simple advocate for the wealthy and/or the powerful or some subset thereof. Of course, the wealthy always help to write the laws so that the hands of any judge are always partially tied. However, one does not need to be a radical, a Marxist, or a socialist to recognize that the ambitions of the wealthy can be as devastating as the ambitions of the politically powerful.[F5]

Scalia is, of course, not alone in his infatuation with unchecked corporate speech. This propensity to view corporate speech as unrelated to issues of fundamental justice involving the potential influence of money has recently reached its expression in Citizens United v. FEC (2010), an opinion which Scalia joined. In the majority opinion authored by Justice Kennedy, the Court struck down a number of constraints on campaign spending by corporations, holding that the political speech of corporations [e.g., campaign advertising] should be construed as the protected political speech of persons. In the majority opinion, important components of Scalia’s dissents in Austin and McConnell, are incorporated. We touch on some of these broader issues in Appendices X and Z.

Scalia, his Supreme Court compatriots, and the body politic need some sharpening of their sensibilities when it comes to the inordinate power of greed in American politics and ideology. I suggest two metaphors for additional consideration. We know that our rights of free speech do not allow us to use a megaphone to drown out other speech in either the public square or in peoples homes. Yet as a society we allow misleading and oversimplifying news, TV, and radio ads to “frame’ the political debate whenever entrenched economic interests and priviledges are challenged. Thus, truthful political speech, pertinent facts, and much honest debate is drowned out. [F 7-6]
We also know that the manure from a 100 acre nineteenth century farm was not, in most cases, a danger to the water supply down stream. However, the runoff from chicken manure from a 100 acre twenty-first century chicken farm which houses a 100,000 chickens can be a public hazard. As citizens we are continually exposed to arguments which distract the public from action to prevent the pollution from such farms — and from other industries which spill their chemicals into the lakes and streams and their oil into the oceans. To be sure, remedies for new hazards of emerging technologies is itself an emergent art and no remedies are possible unless the public informs itself and involves itself in public justice. [F 7-7] Progress on these matters is an inter-generational struggle. Still, there is one important principle which needs to be articulated. Spokepersons, advertisers, paid commentators, lawyers, and — yes — Supreme Court justices who become hired guns, hired speakers, and/or hired writers for the polluting effects of the overendowed and undeservingly rich and powerful are frequently engaged in an obscenity much more harmful to the public good than any porn shop.





FOOTNOTES; CITATIONS; OTHER NOTES

FOOTNOTES
[F 7-1] Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990); McConnell v. Federal Election Commission, 540 U.S. 93 (2003); and Citizens United v. Federal Election Commission, No. 08-205 (2010).
[F 7-2 ] Caperton v. A.T. Massey Coal, 556 U.S ___ [No. 08-205] (2009)
[F 7-3] See the Austin quotation introducing this section. Cf. Footnote 4 also from Austin.
[F 7-4] Elsewhere in Austin Scalia adds, “Ah, but then there is the special element of corporate wealth: What would the Founders have thought of that? ... Tocqueville wrote in 1835:
‘ When the members of an aristocratic community adopt a new opinion or conceive a new sentiment, they give it a station, as it were, beside themselves, upon the lofty platform where they stand; and opinions or sentiments so conspicuous to the eyes of the multitude are easily introduced into the minds or hearts of all around. ... associations ought... to stand in lieu of those powerful private individuals whom the equality of conditions has swept away.’
... It is important to the message that it represents the views of Michigan's leading corporations as corporations, occupying the "lofty platform" that they do within the economic life of the State - not just the views of some other voluntary associations to which some of the corporations' shareholders belong.”
If you read carefully what Scalia writes you see that he trenches very close upon the proposition that “What is good for the [Michigan] Chamber of Commerce is what is good for the United States.”

[F 7-5] Scalia might reread Charles Beard’s An Economic Interpretation of the Constitution of the United States (1913). I wouldn’t expect him to accept Beard’s thesis that “the structure of the Constitution of the United States was motivated primarily by the personal financial interests of the Founding Fathers.” [Wikipedia]. For the record, neither do I. But it would be helpful if he tempered his Ann Ryan fantasies with a touch of reality. As it is, his ideological confusion of individual liberty with entrenched corporate interests gives Marxist critiques of the American economic-political mystique a coherence and traction which they usually lack.
[F 7-6]. In this context it is important to remember that the most important political falsehoods are frequently half-truths used to deflect essential defects of political
[F 7-7]. To be sure, the non-informed and uncommitting public makes itself prey to cheap reforms which do not address fundamental underlying issues.

{Special Footnote VII-A} Presumably speaking in metaphor himself, in Matthew 19:23-24 Jesus is quoted as saying, “Amen, I say to you, that a rich man shall hardly enter into the kingdom of heaven. And again I say to you: It is easier for a camel to pass through the eye of a needle, than for a rich man to enter into the kingdom of heaven.” Douay-Rheims Translation.

Cases Cited:
Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)
Caperton v. A.T. Massey Coal. et al., 556 U.S ___ [No. 08-205] (2009)
Citizens United v. Federal Election Commission, No. 08-205 (2010)
*Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819)
*First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)
McConnell v. Federal Election Commission, 540 U.S. 93 (2003).