By Diana Hsieh @ 8:00 AM
Steve Simpson of the Institute for Justice was kind enough to post his thoughts on the significance of the recent Supreme Court decision on campaign speech in the comments on my post Freedom of Speech, Somewhat Restored. I thought them worth reproducing in a blog post of their own. Here's what he wrote:
Thanks for posting our release, Diana. I thought folks my be interested in a few additional thoughts on why this decision is so significant. No Supreme Court decision is perfect, and this one is far from it from a strict philosophical standpoint. But judging from where we were, it is a very significant step forward. The importance of this decision goes beyond its basic holding, which is that the government cannot prevent corporations from spending money on their own independent speech during elections. Corporations now have the same rights to spend unlimited sums on independent advocacy as individuals do. A corporation is simply a voluntary association of individuals. It has the same "rights" that the individuals do; no more, and no less. The Supreme Court recognized that basic point, which is very important.
But the Court's reasoning was also very good in many respects. Those who have heard Eric Daniels's excellent lecture on the First Amendment know that the Supreme Court has treated the freedom of speech primarily as a means to the end of promoting "democracy" rather than as an inviolable individual right. The history of campaign finance law has been a march toward the logical conclusion of this premise, which is complete government control over political speech. This is the reason that campaign finance jurisprudence is so important--because the consequences of the court's approach are so apparent in this area (and because elections are the path to political power, which is the reason the left cares so much about campaign finance law). (Incidentally, recall what Ayn Rand said about free speech in Censorship: Local & Express--that leftists are willing to leave speech relatively free because they want to control the material realm, while the right is the opposite. In my view, that dynamic is reversed in campaign finance law, both because it involves the regulation of money and because the left recognizes campaigns and elections as the path to political power. But I digress).
The Court unfortunately did not reject this approach, but it did emphasize much more than it ever has before that the First Amendment protects the rights of individuals to speak, to organize, and to think for themselves. The battle on this front is by no means over, but we now have some very good ammunition to use in the future.
The Court's approach was also surprisingly principled and objective. For instance, it recognized that the means of exercising one's freedom of speech (e.g., money, the corporate form) must be protected if the right to free speech is to be protected; it understood that requiring a corporation to speak through a separate legal entity that is separately funded is a denial of the corporation's right to speak as is conditioning the right on compliance with complex regulations (A is A); it rejected as irrelevant the fact that many of the Founders apparently disliked or didn't trust corporations and the fact that the "media" that existed in the founding era consisted of small newspapers and pamplets, rather than gigantic corporations. As Chief Justice Roberts put it in his concurrence, "the First Amendment protects more than the individual on a soapbox and the lonely pamphleteer." (Remember Rockwell's "Four Freedoms" painting, with freedom of expression represented by a humble looking man standing in a town meeting with his hat in his hand? That is the left's view of free speech. Speak as much as you want, as long as it won't affect anything).
In sum, Citizen's United is not just a very good campaign finance decision, it is a very good First Amendment decision (in my view, one of the best ever). It gives us a great deal to use on many fronts, and we will use it all to good effect.
Steve Simpson also wrote an op-ed on the case for Pajamas Media: Protecting the Marketplace of Ideas. It's a good overview and analysis of the case.
Also, Julian Sanchez wrote a biting analysis of the practical implications of the common leftist view that corporations shouldn't have the right to free speech because they're legal fictions rather than real persons. He imagines what would happen if we accepted that view fully:
Having dispensed with the repellent doctrine of corporate personhood, we can happily declare that journalists enjoy full freedom of the press ... as long as they don't plan on using the resources of the New York Times Company or Random House or Comcast, which as mere legal fictions can be barred from using their property to circulate unpatriotic ideas. You're free to practice your religion without interference -- but if it's an unpopular one, well, let's hope you don't expect to send your kids to a religious school or build a church or something, because those tend to involve incorporating. A woman's right to choose is sacrosanct, but since clinics and hospitals are mere corporations with no such protection, she'd better hope she knows a doctor who makes house calls. Fill in your own scenarios, it's easy.
That's a wonderful reductio ad absurdum for precisely the reason identified by Steve Simpson said in his Pajamas Media op-ed:
Corporations are groups of individuals and have the same rights to speak as the individuals who make them up, no more, no less. The fact that state laws affect corporate status cannot be a basis for regulating them, any more than it could be a basis for deciding that married couples, partnerships, or membership organizations are not allowed to speak. Nor can it matter that any group's views may not "correlate" with the views of the public. The First Amendment exists to protect dissent. No one ever wishes to limit speech with which they agree.
After so many years of political disaster, I'm enjoying these few rays of political sunshine.
By Diana Hsieh @ 9:00 AM
Wow, this Supreme Court decision sounds like very good news for free speech. Direct campaign contributions are still limited, but the decision "removes limits on independent expenditures that are not coordinated with candidates' campaigns." Wowowowow. That's huge.
It's a sad sign of the times, however, that the decision was 5-4.
I look forward to hearing what the good folks at the Institute for Justice -- and Eric Daniels -- have to say about the decision.
Update: Here's the e-mail about the case that I just got from IJ:
U.S. Supreme Court Rules in Favor of Free Speech In Citizens United Case
Today's Ruling Lets Corporations Speak, But Other Battlefronts Remain
Today, the U.S. Supreme Court announced a landmark victory for free speech, making clear in Citizens United v. Federal Election Commission that under the First Amendment the government cannot stifle dissent by restricting the right of corporations to spend money on independent political speech.
Justice Kennedy, writing for the Court, emphasized that the government's ban on corporate speech was censorship, pure and simple: "When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful." He added, "The First Amendment confirms the freedom to think for ourselves."
"This is the most significant First Amendment decision from the Supreme Court in more than a decade," said Steve Simpson, an Institute for Justice senior attorney who authored the Institute's amicus brief in Citizens United. "The Court has finally struck down blatant censorship that masquerades as campaign finance reform. Slowly but surely, the Court is prying Americans' free speech rights away from the hands of government bureaucrats. The words of the First Amendment--'Congress shall make no law . . . abridging the freedom of speech'--demand nothing less."
The Court overturned a case that had severely limited corporate political speech: Austin v. Michigan Chamber of Commerce, which said that governments could ban corporations from independently speaking out about political candidates. It also overturned parts of McConnell v. FEC, which upheld a ban on "electioneering communications"--corporate- or union-funded broadcast ads that merely mention a candidate shortly before an election.
The Court did so because it recognized, as the Institute for Justice explained in its brief in the case, that speech bans like these inevitably embolden politicians and self-styled "reformers" to call for even more censorship, such as banning corporate-funded films about candidates, like the nonprofit Citizens United's Hillary: The Movie, or even corporate-funded books if they attack or support a candidate.
In today's opinion, the Court ruled that everyone, including corporations, has the right to speak out about issues and candidates. The government may not restrict the marketplace of ideas: "The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it." In other words, the First Amendment rejects government paternalism, instead "entrusting the people to judge what is true and what is false."
"Politicians hate criticism and so they sought to heavily regulate--if not ban--the most effective political speech against them," said Chip Mellor, IJ's president and general counsel. "Governments have aimed the campaign finance laws at corporations precisely because they can speak effectively. By overturning Austin and McConnell, the Court has taken a critical first step to restoring robust constitutional protections for free speech."
In today's decision, although the Court upheld the disclosure provisions that applied to Citizens United, it cited the amicus brief of the Institute for Justice in noting that the "threats, harassments, or reprisals" that disclosure of donors' identities can generate are a "cause of concern." Thus, the Court left open the possibility that other groups engaged in debate on controversial issues could successfully challenge the disclosure provisions.
So-Called "Fair Elections Now Act"
Anticipating today's ruling, those advocating campaign finance restrictions have already begun promoting new regulations to "deal with" the freeing of more Americans to speak about politics. One proposal, the "Fair Elections Now Act" in Congress, would publicly fund the campaigns of those who run for federal office, while imposing a host of complicated regulations on candidates and their supporters. (For a 72-second video on FENA, visit: www.ij.org/FENAvideo.)
"Today, the Court made clear that under the First Amendment, free speech is not a problem to be solved with government bans and red-tape; it is a fundamental right enjoyed by all Americans," said Simpson. "This is a message that congressional proponents of the so-called Fair Elections Now Act--yet another proposal by politicians to stifle speech that threatens their re-election--need to hear."
Moreover, as IJ Senior Attorney Bert Gall noted, there is nothing to fear from corporate political speech: "Companies do not speak with one voice; instead, they represent a wide variety of viewpoints from across the ideological spectrum. So while Wal-Mart may speak out in favor of politicians who support health care reform, other retailers such as Whole Foods may do the opposite. And if Chrysler runs ads on behalf of candidates who won it favorable bankruptcy treatment, institutional investors whose bonds were rendered worthless can now criticize those same politicians. The result is a free-wheeling and uninhibited debate, which is just what the First Amendment is meant to provide."
The Next Big Free Speech Cases
Two other cases will give the courts the opportunity to take additional steps toward freeing speech from burdensome and unnecessary campaign finance laws. SpeechNow.org v. FEC, which will be argued in front of the entire D.C. Circuit Court of Appeals on January 27, 2010, involves a challenge to a federal law that forces people to sacrifice the First Amendment right to associate in order to exercise the First Amendment right to speak. SpeechNow.org is a group of citizens who wants to band together, pool resources and run ads favoring some candidates and opposing others. But while each person on his own could spend as much as he wants, the law says no one can contribute more than $5,000 to the joint effort. Along with the Center for Competitive Politics, IJ represents SpeechNow.org.
In Sampson v. Buescher, a group of neighbors who were sued for speaking out against the annexation of their neighborhood into a nearby town have challenged Colorado's burdensome campaign finance regulations of ballot issue advocacy. Under Colorado law, groups that spend as little as $200 speaking for or against a ballot issue must register with the state and disclose the identities, addresses and often employers of anyone who contributes more than $20 to their cause. IJ represents the neighbors in the case, which is currently before the 10th Circuit Court of Appeals.
The Institute for Justice defends First Amendment rights and challenges campaign finance laws nationwide. In May 2009, the Institute secured a federal court ruling striking down Florida's electioneering communications law, and IJ previously won a ruling in the Washington Supreme Court that stopped an attempt to regulate media commentary as "in-kind" political contributions. IJ is currently challenging laws in Colorado that suppress speech about ballot issues by grassroots groups and nonprofit organizations, as well as Arizona's "Clean Elections" law for funding political campaigns with taxpayer dollars. For more information, visit www.ij.org/FirstAmendment.
By Diana Hsieh @ 10:00 AM
I haven't written a letter to the editor in ages, as my brain has simply been too thoroughly occupied with other work. However, I'm deeply worried about the erosion of free speech in America, so I dashed off this letter to the Denver Post a few days ago. Much to my delight, it was published today:
Vincent Carroll is right to warn us about the Federal Trade Commission's new regulations on bloggers who review or endorse products. For too long, Americans have ignored the First Amendment in the name of "fairness" by supporting an ever-growing labyrinth of regulations on political campaign speech.
Now the government seeks to bind and gag online speech based on the same egalitarian principles.
The effect will be a frosty chill on all speech. Soon, only those able to afford a gaggle of lawyers will dare speak on any issue more substantive than tomorrow's weather.
In the words of Ayn Rand's hero Francisco D'Anconia, "Brother, you asked for it!"
Bloggers now have up to 11,000 reasons to disclose when they are being paid to review products.
The [Federal Trade Commission] has updated its Guides Concerning the Use of Endorsements and Testimonials in Advertising for the first time since 1980, and among the changes, a requirement that "bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service." Fines for violating the new rule will run up to $11,000 per post.
Here's the critical portion of the announcement from the FTC:
The revised Guides also add new examples to illustrate the long standing principle that "material connections" (sometimes payments or free products) between advertisers and endorsers -- connections that consumers would not expect -- must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other "word-of-mouth" marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service. Likewise, if a company refers in an advertisement to the findings of a research organization that conducted research sponsored by the company, the advertisement must disclose the connection between the advertiser and the research organization. And a paid endorsement -- like any other advertisement -- is deceptive if it makes false or misleading claims.
Observe that the FTC openly declares that its decisions will not be based on any objective principles, knowable in advance. Rather, "decisions will be reached on a case-by-case basis." Moreover, Ostrow rightly observes that the regulations would not merely concern simple exchanges of money for good opinions but might also concern any kind of benefit:
Beyond straight up pay-per-post systems like Izea, it the new rules would seemingly apply to any situation where something of value changes hands between advertiser and blogger. For example, General Mills and Ford Fiesta bloggers would have to disclose the relationship they have with the advertiser.
But then, to my amazement horror, Ostrow endorses these regulations!
Certainly, it seems like this is an update that's time has come. While most well-run social media programs already include appropriate disclosure, there's still no shortage of unscrupulous marketers using deceptive practices to sell products. Now, with the threat of serious fines, those who look to push the boundaries of ethical blogging will be doing so at their own risk.
Ugh. Here's my view, posted on Mashable and elsewhere:
In the name of "openness" and "disclosure," free speech is being slowly destroyed in America. If the government were burning books, people would be up in arms. However, the statists -- left and right -- are crafty. Instead of outright bans, they prefer regulations.
We've already seen this happen with the massive regulations on political speech. In many states, including my own Colorado, ordinary people cannot speak out about candidates or ballot measures due to very confusing disclosure laws enforced by heavy fines.
Now the federal government plans to threaten bloggers with massive fines based on the whims of bureaucrats -- who will soon, I guarantee you, write pages and pages of uber-dense and convoluted rules about what counts as "a review" or "payment" and the required form of the disclosure. Soon, almost any speech about a product will be regulated. Oh, how the large producers of crappy products will love that! They'll soon be lobbying the government for further restrictions and regulations.
The inevitable result will be that many honest bloggers will stop discussing products entirely -- or they'll stop blogging. Seriously, how many bloggers make enough money to cover the potential fines? How many bloggers will have the time and the fortitude to read through all the regulations, to know whether they're complying or not with them? Many other people will not start a blog; it would be too much trouble -- and too risky.
Gee, do you think that will benefit consumers? Do you think the result will be better information about products on blogs? Of course not!
Do not be surprised by that. In fact, the aim of the government is not to protect us from those few dastardly reviewers who accept money on the side in exchange for positive reviews. The aim of the government is to control what we think and what we do by regulating the marketplace of ideas to its death. They're doing an excellent job of that -- and most Americans are blind to the danger.
Folks, this ruling is very, very dangerous. Make a stink, if you care for your freedom.
As Supreme Court Considers Ban on "Hillary: The Movie," Institute for Justice Asks if First Amendment Protects "Top Ten" Political Books
Arlington, Va.--What do Bill Clinton, Peggy Noonan, John Kerry, Michael Moore, Maureen Dowd and Swift Boat Veterans for Truth founder John O'Neil have in common?
All wrote books that could have been banned, just like "Hillary: The Movie," the film at the heart of the campaign finance case Citizens United v. Federal Election Commission. The U.S. Supreme Court will hear new arguments in the case Wednesday, Sept. 9, in an unusual session ordered after justices appeared troubled by the government's suggestion during the first oral argument that it could ban corporate-funded books. Indeed, Democracy 21 President Fred Wertheimer, a leading advocate of campaign finance regulations, admitted this week to The New York Times, "A campaign document in the form of a book can be banned."
Today, the Institute for Justice released a "top ten" list of political advocacy books from the last four presidential election cycles and asked: If the First Amendment doesn't protect "Hillary: The Movie," would it protect books like these?
To find out its list of ten books, go read the press release. It's a great press release, I think. It does not merely state its view. It intrigues readers by presenting striking concrete effects of a bad court decision, then invites them to think seriously about the principles of free speech:
"Speech is speech, no matter who is speaking, who funds it or in what form it comes," continued Simpson. "The same ideas do not become dangerous because they are funded by corporations or because they appear in an ad or film instead of a book or newspaper. The Supreme Court must return to first principles and protect all speech, regardless of the speaker, and overturning Austin and McConnell is a critical first step."
"Political ads, books and films, like 'Hillary: The Movie' or Michael Moore's 'Fahrenheit 9/11,' contribute to a robust and healthy debate, and they all deserve the fullest protection of the First Amendment," said IJ Senior Attorney Bert Gall. "What's at stake in Citizens United is whether the First Amendment protects this speech from censorship if Congress decides that it prefers silence over debate. The Supreme Court should reject censorship and open the floodgates to all speakers--and then let citizens and voters decide for themselves."
While I do think that a proper philosophical defense of freedom of speech needs to dig deeper, that's obviously sufficient for a press release.
By Diana Hsieh @ 12:01 AM
I meant to post this op-ed some weeks ago, but it got lost in the shuffle. Better late than never!
"Campaign finance laws stifle speech" by Steve Simpson Published on June 27th in The Colorado Springs Gazette
The Colorado Supreme Court recently turned down an opportunity to vindicate the First Amendment right to speak about politics without government getting in the way. That is bad news for Coloradans, but the case, a challenge to the campaign finance laws brought by the Independence Institute, places Colorado on the forefront of a growing battle over speech about campaigns.
Colorado, like the other 23 states that allow citizen initiatives, requires groups that wish to speak out for or against ballot issues to register with the state and to report contributions and expenditures - that is, to report detailed personal information about supporters and chronicle the group's political activities.
The nonprofit Independence Institute learned about these laws the hard way when it criticized Referenda C and D in 2005 and was promptly sued by a member of the campaign supporting the referenda who claimed the group had violated the campaign finance laws.
After spending thousands in legal fees defending itself, the institute brought its own suit challenging the laws under the First Amendment, but lost in both the trial court and the court of appeals. With the Colorado Supreme Court's refusal to hear the case, the last option for the institute is an appeal to the U.S. Supreme Court.
The question in this case cuts to the heart of political freedom in this nation: Can states require citizens who wish to band together to speak out about political issues to register with the government and disclose the identities of those who support them?
Supporters of these laws claim that groups might influence the outcome of an election, and that is certainly true - indeed, that is usually the reason to speak out during an election.
But allowing individuals to influence the course of their government is one of the main reasons we have a First Amendment. Americans have relied on the right to organize and to speak - often anonymously - from the founding generation, though the debates over ratification of the Constitution on up to today.
If the "free" in free speech means anything at all, it means that individuals who organize and speak have the right to determine their message and what information they disclose about themselves. Listeners can always demand more information or disregard what they hear entirely. But requiring individuals to disclose their contributions for or against ballot issues is no different from requiring them to disclose their votes.
The Independence Institute's case is not an anomaly. The same thing happened to a group of neighbors in Parker North, Colo., when they opposed the annexation of their neighborhood in 2006. They placed "No Annexation" signs on their lawns and were promptly sued by the proponents of annexation for failing to comply with campaign finance laws. A federal court found that "[b]y permitting this intimidation, Colorado's campaign finance laws had the effect of stifling political speech in violation of the First Amendment," but still refused to strike down the laws. That case is currently on appeal.
In California, during the debate over last year's marriage amendment, both sides used information obtained from campaign finance laws to harass and intimidate their opponents. A case challenging the laws is currently pending in federal court.
Federal courts in Wisconsin and Florida have recently struck down similar laws under the First Amendment. As the court in Florida wrote, "While it is true that the legislature has the power to regulate elections, it does not have the power to regulate purely political discussions about elections."
Despite the clear language of the First Amendment, the reality in America today is that to speak out about politics, you need more than an opinion - you also need a lawyer. Fortunately, courts are beginning to take notice of this sad fact, and we may soon see the day when free speech is once again a right, not a privilege.
Simpson is a senior attorney at the Institute for Justice, which represents the Independence Institute and the Parker North neighbors.
Court Orders New Arguments in Citizens United, Majority Appears Poised To Strike Down Electioneering Communications and Corporate Speech Bans
First-Ever Study of Impact on Nonprofits Demonstrates Need To Rein in Out-of-Control Speech Regulations
Arlington, Va.--The U.S. Supreme Court today ordered a new round of oral arguments in Citizens United v. FEC, the "Hillary: The Movie" case. The Court wants parties to address whether Austin v. Michigan, a case that bans certain political speech by corporations, including nonprofit corporations such as Citizens United, should be overturned. The Court also wants to consider whether part of McConnell v. FEC, upholding the so-called "electioneering communications" ban in McCain-Feingold, should likewise be overturned and the ban struck down entirely.
"The Court has set up a blockbuster case about Americans' First Amendment rights to join together and speak freely about politics," said Steve Simpson, a senior attorney with the Institute for Justice, which filed a friend-of-the-court brief in Citizens United v. FEC. "A majority of the High Court appears to recognize the grave threat to free speech posed by both the electioneering communications ban in McCain-Feingold and the ban on corporate political speech. This case could mark a significant advance for First Amendment rights and will have major implications for state laws nationwide."
Indeed, a study released today shows the critical need to rein in speech regulations that have flourished since the Court upheld the electioneering communications ban in McConnell. At least 15 states have electioneering communications laws, and in many cases those laws regulate even more speech by more groups than the federal ban. Indeed, just last month, in response to a lawsuit filed by the Institute for Justice, a federal judge struck down Florida's law. He noted that "no court has ever upheld such a sweeping regulation of political speech."
The study is the first ever to examine the impact of speech regulations on the kind of nonprofit corporations at issue in Austin. The study shows that these laws impose on nonprofit groups a heavy regulatory burden for their speech and most lack the resources to comply. "Locking Up Political Speech: How Electioneering Communications Laws Burden Free Speech and Civic Engagement" by political scientist Dr. Michael Munger of Duke University is available at http://www.ij.org/citizensunited.
"Since McCain-Feingold, campaign finance regulation has exploded, leaving practically no room for free speech about politics," said Bill Maurer, an attorney with the Institute for Justice and lead counsel for the Institute on its Citizens United brief. "With each new regulation, more citizens are shut out of the political process. That is why it is essential for the Court to revisit and indeed overturn Austin and McConnell."
The Citizens United case came about because the Federal Election Commission banned the airing of "Hillary: The Movie," produced by the nonprofit Citizens United, on cable TV and required the group to "name names" of the film's backers by disclosing to the government detailed personal information about donors if the group ran TV ads for the film. At oral argument, justices appeared concerned that if the government could ban corporate-funded films about candidates, it could also ban books. Revisiting Austin and McConnell allows the Court to fully consider whether speech regulation has gone too far.
"The Court will now squarely confront the inevitable consequences of regulating political speech: If the government can ban ads, it can ban movies and books as well," said Simpson. "But we don't ban books in America. Once you start regulating political speech, there is no place to stop. This is exactly why the First Amendment forbids government from controlling and limiting speech in the first place."
Simpson continued, "It takes money to speak effectively, so the right to free speech must include the right to spend money and raise money to make that speech heard."
"Reconsidering Austin and McConnell is a critical start to fixing what is wrong with campaign finance regulation, but it should not be the end," said Simpson. "The root of the problem stretches back 30 years to Buckley: the belief that some speech deserves government regulation simply because it advocates for one candidate over another. In America, we have the right to try to convince fellow citizens how to vote. It's called 'political speech,' and it's exactly what the First Amendment was designed to protect. We cannot fully protect First Amendment rights until the Court does away with the distinction between 'good' speech and 'bad' speech altogether."
All my hopes are with Steve Simpson and the other good folks at the Institute for Justice! I am so grateful for their hard work hard to protect our rights -- and for this ray of sunshine in the bleak landscape of American politics today.
Brian Jennings is the author of a new book on the Fairness Doctrine, Censorship: The Threat to Silence Talk Radio, and he came through Boise on his promotional tour a couple days ago. The biggest talk-radio station in the area had a live-broadcast event featuring him and local talk show host Nate Shelman (who was the anchor speaker for Boise's Tax Day Tea Party). It was all about free speech, censorship, and the Fairness Doctrine.
The book's author is a Conservative, distressed at the Left's use of the Fairness Doctrine to disrupt or destroy Conservative talk radio, and most everyone in the audience seemed to identify as a Conservative as well. After listening for a while, I decided to actually go there in person to see if I could get some mic time and maybe inject a little principled thought into the conversation. I figured a couple minutes on air had to be at least as effective as a letter to the editor. :^)
Why did I go there? Well, people recognize there's something seriously wrong with the Fairness Doctrine, and they can (and did) talk about how it is a blunt political weapon involving arbitrary powers and undefined terms, constitutes censorship, is a violation of free speech, and so on. But what I wasn't hearing was any principled stand for the absolute right to free speech and the consistent rejection of censorship. Without this, their argument is basically reduced to a flowery appeal to partisan interests. Demanding that people follow a principle only works if you're doing so yourself! More important, they should uphold the crucial ideas that make human life possible in society, and which brought about the best country in the world.
So there I was, sitting among a couple hundred conservative folks, trying to figure out how I could point out hypocrisy and inspire a genuine stand for liberty without being booed out of the room.
I waited, surveying the discussion... Eventually, a lady who was known and liked by the host and audience took the mic and talked about how the Left says the Right is "just as bad" and should therefore feel guilty, which she and the audience of course rejected out of hand. Sweet! Now all I had to do was try to springboard from her comments, contradict her in a way that wouldn't make me seem like a jerk, articulate my point while the host did his thing, and keep my own off-the-cuff mental chaos from making me look like a fool or a crank. :^)
I think it was worth the effort. While I wasn't nearly as smooth and clear as I would have liked, I managed to get the essential points across, and in a way that worked for an audience that could have easily been alienated. Either way, it was good training for the next opportunity! And nice fodder for a letter to the editor I'm about to go write.
Contrary to widespread cries that media consolidation threatens free speech, the real threat comes from laws regulating media ownership.
By Don Watkins
Self-appointed consumer watchdogs--including Obama's recent pick for FCC chair, Julius Genachowski--have long complained about media consolidation. So it was no surprise that when the FCC recently loosened restrictions barring companies from owning a newspaper and TV station in the same city, these critics went apoplectic and are now urging the House to follow the Senate in blocking the measure.
Media consolidation supposedly threatens free speech. A few conglomerates, critics warn, have seized control of our media outlets, enabling these companies to shove a single "corporate-friendly" perspective down our throats. As Senator Byron Dorgan put it, "The free flow of information in this country is not accommodated by having fewer and fewer voices determine what is out there. . . . You have five or six corporate interests that determine what Americans can see, hear, and read."
Leave aside that Dorgan's comments are hard to take seriously in the age of the Internet: his position is still a fantasy. Media consolidation is no threat to free speech--it is the result of individuals exercising that right.
All speech requires control of material resources, whether by standing on a soapbox, starting a blog, running a newspaper ad, or buying a radio station. Media corporations simply do this on a larger scale.
Consider the critics' favorite bogeyman, News Corp. When Rupert Murdoch launched the company, he and his fellow shareholders pooled their wealth to create a communications platform capable of reaching millions. They further expanded their ability to communicate through mergers and acquisitions--that is, through media consolidation. As News Corp.'s owners, shareholders were able to exercise their freedom of speech by deciding what views their private property would (and wouldn't) be used to promote--the same way a blogger decides what ideas to champion on his blog. Like most other media companies, News Corp. even extended the use of its platforms to speakers from all over the ideological map--including opponents of media consolidation.
Do News Corp.'s resources give Murdoch an advantage when it comes to promoting his views? Absolutely. Free speech doesn't guarantee that everyone will have equal airtime, any more than free trade guarantees that every business will have the same amount of goods to trade. What it does guarantee is that everyone has the right to use his own property to speak his mind.
Some of today's most prominent voices, such as Matt Drudge, have succeeded without huge financial resources. But regardless of how large a media company grows, it can never--Dorgan's complaints notwithstanding--determine what media Americans consume. It must continually earn its audience. Fox News may be the leading news channel today, but if it doesn't produce shows people want to watch, it will have all the influence of ham radio. Just think of how newspapers and the big-three network news stations are losing audiences to Web-based sources.
Now consider the actual meaning of government restrictions on media ownership. The FCC is telling certain Americans that they cannot operate a printing press or its equivalent. Such restrictions cannot protect free speech--they are in fact violations of the right to free speech. There is no essential difference between smashing someone's printing press and threatening to fine and jail him if he uses one; either way, he can't use it to express his views.
What galls critics of media consolidation is not that News Corp. stops anyone from speaking--it's that they don't like the choices Americans make when free speech is protected. In the words of one critic: "[M]arket forces provide neither adequate incentives to produce the high quality media product, nor adequate incentives to distribute sufficient amounts of diverse content necessary to meet consumer and citizen needs." Translation: Can you believe what those stupid consumers willingly pay for? If I got to decide what Americans watched, read, and listened to, things would be different.
In order to "correct" the choices Americans make, these critics demand that the FCC violate the free speech rights of some speakers in order to prop up other speakers who, absent such favors, would be unable to earn an audience. In short, they want a gun-wielding Uncle Sam--not the voluntary choices of free individuals--to determine who can speak and therefore who you can listen to.
The critics of media consolidation are frauds. They are not defenders of free speech--they are dangerous enemies of that freedom.
Don Watkins is a writer and research specialist at the Ayn Rand Center for Individual Rights. The Ayn Rand Center is a division of the Ayn Rand Institute and promotes the philosophy of Ayn Rand, author of "Atlas Shrugged" and "The Fountainhead."
Pat Condell's argument for free speech as his new religion in this video is similar to the simple reductio ad absurdem of Leon Kass's intuitionist appeal to "repugnance" as grounds for banning human cloning. That reductio says the following:
In his case against cloning, Kass relies heavily on his own moral feelings of repugnance, without any serious attempt to justify them by plausible appeal to facts. Of course, Kass does offer some arguments against cloning, but those arguments are quite laughable. They would imply that we should ban in vitro fertilization, identical twins, and step-parents too.
Unfortunately for Kass, I find his appeal to repugnance itself repugnant. I'm an advocate of solid reasoning based on facts, after all. Heck, I find his pathetic attempts at substantive arguments -- rationalization, really -- quite repugnant too.
So if repugnance is as wise as Kass himself claims, then his whole method of arguing against cloning can and ought to be rejected on that very basis. Heads I win, tails he loses!
Obviously, that's not the strongest argument against mystical theocrats of various stripes, not by a long shot. Nonetheless, it highlights the absurdity of ethical and political claims based on a corrupt epistemology. It's a way of hoisting these folks with their own petard.
...just do the following: Make a list of all the very morally worthy and life-enhancing procedures Kass finds repugnant. Now, declare that what we need to do is re-engineer people so that we don't find those things repugnant anymore, because those kinds of unreasoned sentiments prevent us from improving our lot here on Earth. How can a Kassian respond? The only non-fallacious course is to argue for the moral authority of the human moral sense as it is presently constituted, without assuming its authority in the argument. And that's what I want from Kass, and from all those who argue via "the argument from 'yuck.'" And that's what we never get.
By Diana Hsieh @ 12:12 AM
William E. Perry recently sent me (and some other friends) the following thoughtful commentary on the state of free speech in America. I am posting it here with his permission:
Ayn Rand said that we should continue to fight and attempt to influence events as long as free speech remains. Lately I've been questioning whether we really have free speech in this country.
When the CEO of a major bank is afraid to speak out publicly even though he was forced to sign over part of his company to the government for a bailout that they didn't need, I question whether we really have free speech. That was the case recently with the CEO of Wells Fargo. After the meeting detailed in the linked article, Wells Fargo has made statements about the use of the bailout money, but no statement about why they accepted it, or the pressure that was put on them.
We have speech codes in colleges, although FIRE fights very hard to limit the worst effects of them.
We have limitations on advertisements during elections due to McCain-Feingold. We have state level restrictions on political speech as well. Unrestricted political speech is necessary for a free country.
There is a strong movement toward reinstating the "fairness" doctrine, which is a further limitation on speech.
On the other hand we do have free speech in some contexts. Yaron Brook and the other ARI intellectuals are not stopped from making their statements in media venues. The people on the OActivists list are not stopped from writing Letters to the Editor and op-eds -- and many of them are published.
So I think that we have free speech to some extent, but it is not a fully robust freedom of speech. At what point do we decide that we don't have freedom of speech to the extent that it is safe to speak?
I'm not advocating leaving the country (to go where?); I'm not advocating setting up some kind of Galt's Gulch. I've even been considering starting a group to deal with a looming issue that is very important to me, and doing advocacy about it with FIRM and the Coalition for Secular Government as models.
Rand famously said, "It's earlier than you think," when asked about some types of advocacy. That has become an overused cliche in some circles. But now I wonder whether it is later than we think.
Here's my reply to him, somewhat edited:
I think that your concerns about free speech are very real -- particularly having dealt with some of Colorado's campaign finance laws these past few months. The federal and state governments won't outright ban speech anytime soon, as is happening in Europe and Canada. However, they are increasingly regulating it with campaign finance laws and the like. These laws are so burdensome that most people would rather shut up than attempt to comply with them -- and risk legal action if they do so wrongly.
More generally, my thought from the first serious talk of the financial bailout has been that perhaps we have less than the 20 years that Yaron Brook speculated at OCON to turn around the culture. That's a very scary thought. Unless more Objectivists ramp up their advocacy efforts, we might go down in flames just as we're gaining a real foothold.
Personally, my plan is to (1) finish my dissertation and then (2) speak in every forum open to me, full-time. I do plan to actively fight for free speech, because like you, I think it's in very serious danger.
I will have more to say about the burdens of campaign finance laws -- including my own experiences with them -- in future posts.
Basically though, I would say that:
It's earlier than some might think -- meaning that it's too early for direct political action like running decent political candidates.
It's later than some might think -- meaning that we have very little time to enact the necessary philosophical revolution.
Time-wise, we're stuck between a political rock and a philosophical hard place. However bad that might be, there's only one way out -- namely fighting for our ideas in public forums of all kinds.
Fleeting Freedom: The Indecent Assault on Broadcasters
The fleeting expletive case before the Supreme Court is about more than broadcasters' ability to air dirty words--it's about whether "community standards" should be allowed to override free speech.
By Don Watkins
As the Supreme Court prepares to hear arguments Nov. 4 in the so-called fleeting expletive case, Federal Communications Commission v. Fox Television Stations, it's clear that much more hinges on its outcome than broadcasters' ability to air dirty words.
The FCC has had the power to fine broadcasters for "indecent" speech for decades. But following Janet Jackson's infamous Super Bowl wardrobe malfunction in 2004, the government declared all-out war on indecency. Congress increased the maximum penalty per infraction tenfold, from $32,500 to $325,000; the FCC started issuing fines left and right; and Congressman James Sensenbrenner went so far as to recommend jail time for broadcasters who violated "indecency" guidelines. At the same time, the FCC began issuing fines for fleeting expletives. Suddenly a star's offhand comment on live TV could cost broadcasters hundreds of thousands of dollars.
In the midst of all this, one question never got answered: just what is "indecency"? The Supreme Court had defined it as speech that "depicts or describes sexual or excretory activities and organs in terms patently offensive as measured by contemporary community standards." But which Americans count (and don't count) as part of the community? Why are they king? And how are broadcasters to divine their supposedly shared standards? In response to these unanswerable questions, the FCC issued a hodgepodge of rulings in specific cases and told broadcasters, in effect, "You figure it out."
Multiple uses of expletives in Martin Scorsese's PBS documentary The Blues? Indecent, said the FCC. Multiple uses of those same expletives in the movie Saving Private Ryan? Not indecent. Suggestion of teenage sexual activity on CBS's Without a Trace? Indecent. Graphic discussion of teen sexual practices on Oprah? Not indecent. Bono's use of the "F-word" during the 2003 Golden Globe awards? Even the FCC wasn't sure about that one. Initially it said the word was not indecent, but later changed its mind and started handing out the fleeting expletive fines at issue in FCC v. Fox Television.
So what is a broadcaster to do? Engage in self-censorship, cutting any material that regulators might declare indecent.
Defenders of the war on indecency admit that the FCC's regulations are murky. But without such restrictions, they say, Americans will be helpless against the stream of offensive programming pumped into their homes: either we allow the government to wield arbitrary power over broadcasters, or we give broadcasters arbitrary power to subject us to filth.
What this argument ignores is that broadcasters' power is not arbitrary. They must earn their market by offering programming Americans choose to consume. We choose to buy a TV (or not). We choose to pay for cable (or not). We choose which channels we and our children watch. Broadcasters can't force us to watch offensive programming any more than an author can force us to read an offensive book.
This is the meaning of free speech: people have the right to say whatever they want, no matter how offensive--and we remain free to listen or not. We don't have to abide by the opinions, prejudices, and errors of our neighbors, but can judge for ourselves whether something is true or false, art or trash, insightful or indecent.
But once the government becomes the enforcer of "community standards," no speech is safe. How long until, say, the Bible Belt declares that the theory of evolution is offensive, corrupts young minds, undermines community values, and must be suppressed? This question is not academic. Bolstered by the indecency precedent, efforts are already underway to regulate "excessively violent" broadcasts.
And if the government can suppress speech "the community" allegedly deems offensive, then why can't it force broadcasters to engage in speech "the community" allegedly regards as good? In fact, it already does so: Univision was recently fined $24 million for failing to air a sufficient amount of educational children's programming. On the anti-indecency movement's premises, judging the value of programming is not the prerogative of broadcasters, who decide what to air, or viewers, who decide what to watch--it's the prerogative of "the community" (and its self-appointed spokesmen).
This is what is at stake in FCC v. Fox Television. The question is not whether fleeting expletives are indecent, an issue that individuals have a First Amendment right to decide for themselves. It's whether the Constitution grants government the power to trample on freedom of speech, using non-objective laws to dictate what we can say and hear on the airwaves. The Supreme Court should take this opportunity to respond with an emphatic "No!" Anything less would be indecent.
Don Watkins is a writer and research specialist at the Ayn Rand Center for Individual Rights. The Ayn Rand Center is a division of the Ayn Rand Institute and promotes the philosophy of Ayn Rand, author of "Atlas Shrugged" and "The Fountainhead."
By Diana Hsieh @ 12:25 AM
Ari and Linn Armstrong recently wrote an excellent column for the Grand Junction Free Press on the clash between campaign finance laws and freedom of speech. Ari was kind enough to give me permission to repost it here, and he also sent me a version with links added. Also, below the column, you'll find the full text of his interview with Eric Daniels.
Also, if you're not reading Ari's blogs -- AriArmstrong.com (on faith and politics) and FreeColorado.com (on politics and culture) -- you should be.
Time to speak out for free speech
by Linn and Ari Armstrong
Free speech is under assault in America by state and federal governments, despite constitutional protections.
Both major presidential candidates are enemies of free speech. In 2002, John McCain rode the McCain-Feingold campaign censorship law through Congress. Among other things, the law prohibited select groups from running certain political ads before elections, though the Supreme Court struck down some of the worst parts of the law. Barack Obama wants federal controls on media ownership, his spokesperson toldBroadcasting & Cable.
Some conservatives want more censorship over pornography. Many on the left call for censorship of the radio by forcing broadcasters to air certain views; supporters laughably call their scheme the "Fairness Doctrine."
Here in Colorado, various activists have faced legal threats for daring to exercise their rights of free speech. For example, in 2006 Becky Clark Cornwell put up yard signs and protested a plan to annex her community of Parker North into the city of Parker in Douglas County.
A supporter of annexation filed a legal complaint against Cornwell and others, claiming they had engaged in "illegal activities" under Colorado's campaign censorship laws.
Lisa Knepper of the Institute for Justice (IJ), a civil rights group that defended Cornwell and her neighbors, said that, while the U.S. District Court ruled the group could not be penalized, the court "failed to change the law to prevent such abuses of campaign finance law in the future, so we're appealing to the 10th Circuit."
ABC's 20/20featured Cornwell in an October 17 story about the campaign finance laws. Cornwell said "the lawsuit was used in an effort to shut us up about the annexation, to scare us enough and clobber us with these laws so that we wouldn't talk about it any more."
20/20 paid people to try to fill out Colorado's campaign forms. Nobody did so successfully. One subject said, "A regular citizen cannot read this legalese." Another said, "I'd rather just not get involved in the political process if I have to go through the nonsense that I had to go through today."
Steve Simpson, the IJ lawyer defending the Parker North residents, said he's also defending the Independence Institute, which was sued over its criticisms of Referenda C and D in 2005. Simpson is awaiting a decision from the Colorado Court of Appeals. He said "it would be impossible" for the Independence Institute, a think tank, to comply with the reporting requirements as an issue committee, because the group gets funds for general purposes and spends them on a wide variety of issues.
Even though we've condemned Amendment 48, which would absurdly define a fertilized egg as a person in the state constitution, we were displeased to see that a fellow named John Erhardt sued the Amendment 48 campaign for petty violations of the campaign censorship laws. Erhardt gloats on his blog, "So, while the fine of $150 won't break their campaign, they did have to spin their wheels to defend this."
Diana Hsieh, co-author of the paper "Amendment 48 Is Anti-Life" at SecularGovernment.us, said the advocates of 48 "should be free to advocate their views -- not bogged down in opportunistic legal action by opponents... I want opponents of Amendment 48 to be spending their time arguing against the substance and philosophy of it, not playing campaign finance dirty tricks."
Finally, Douglas Bruce has taken flak in the media [one and two] for mailing a flyer against Amendment 59 and Referendum O through a nonprofit group, Active Citizens Together, without filing the legal paperwork that some think applies.
It's past time to rethink the validity of the campaign censorship laws, along with all the other restrictions on free speech. We checked in with Eric Daniels of the Clemson Institute for the Study of Capitalism, and he offered a refreshingly consistent defense of our rights.
Daniels said, "Free speech means the right (not privilege) of individuals to express their opinions without government censorship of any kind, whether by hindering speech through regulation or through restricting it through prosecutions after the fact."
We don't even like requirements to report contributions. People have a right to speak anonymously. There's no clear way to distinguish between advocacy and education. And, the voters can demand disclosure with their votes.
Daniels agrees: "If politicians wish to disclose the source of their financing to the public, they are free to do so... The electorate can indeed decide through voting whether to support candidates who do or do not disclose their financing. Contributing money to a political candidate or to supporters or opponents of a ballot measure should properly be a matter between the private parties themselves."
Government should not abridge "the freedom of speech, or of the press." Politicians have gotten away with doing just that for far too long. If we wish to retain and restore our other liberties, we must above all fight for our rights of free speech.
Linn is a local political activist and firearms instructor with the Grand Valley Training Club. His son Ari edits FreeColorado.com from the Denver area.
Full Interview with Eric Daniels
Note from Ari: My purpose in contacting Daniels was not to cover familiar ground, but to elicit responses about some of the most difficult implications of free speech. Until I thought more carefully about the matter on October 23, talked with another friend about it, and contacted Daniels, I wasn't sure about my position on the matters of campaign-finance disclosure and campaigns by foreigners. Now I am sure. I am for freedom, not controls.
Daniels's answers follow the questions in italics:
Briefly, why do you think free speech has come under attack by both right and left in recent decades?
Fundamentally, the reason free speech is under attack by both is because both fail to understand the nature of individual rights. The majority opinion in politics today holds that rights are gifts from the government that allow individuals to do some things as long as they do not upset certain vested interests. In the case of free speech, politicians believe that you should be allowed to say what you want as long as it does not, for example, offend religious or ethnic groups or as long as what you say is not backed by too much money, or as long as what you say meets some vague notion of community standards. But that is not free speech. Free speech means the right (not privilege) of individuals to express their opinions without government censorship of any kind, whether by hindering speech through regulation or through restricting it through prosecutions after the fact.
Should the law require disclosure of campaign-related expenses? I'm leaning no. People have a right to speak anonymously. There's no clear way to distinguish between advocacy and education. And, the voters can demand disclosure with their votes. Do you agree with this? Explain.
I do not think the law should require public disclosure of campaign- related financing. If politicians wish to disclose the source of their financing to the public, they are free to do so. Likewise, if they choose to keep their donors' identities to themselves, they should also be free to do so. The electorate can indeed decide through voting whether to support candidates who do or do not disclose their financing. Contributing money to a political candidate or to supporters or opponents of a ballot measure should properly be a matter between the private parties themselves. It does not matter how much a person gives or how much air time he buys, voters always remain free to take the message for which he has paid in the appropriate context. No one forces the voters to believe or discredit any given message, they do so of their own will.
Should the law prohibit campaign contributions from foreign entities and people? For instance (Diana Hsieh raised this example), if the U.S. were going impose a tariff on British goods, should British citizens be able to campaign against it in the U.S.?
Giving money to a political campaign is an issue of individual right -- that is, the donor who has earned his wealth has a right to give it to whatever candidate he chooses, and the candidate has a right to accept money from anyone he chooses. Foreign citizens or political action committees have just as much right to speak as do Americans. Again, if there is some belief on the part of voters that foreign influence is unduly affecting some candidate, the voters retain the right to demand that the candidate disclose the source of his funding or face losing their votes.
Is there anything else we should know about free speech in the modern era?
Even though much of the recent controversy about free speech is tied to speech about political issues, it is important to remember that we have the freedom of speech not just because it facilitates a robust discussion of public policy (which is the unfortunate modern interpretation), but because it is a right of each individual to express his ideas in the manner he chooses and to reach whatever size an audience his rightly-earned wealth will allow.
By Diana Hsieh @ 4:56 PM
Notice of a Special Event: A Lecture by Mr. Flemming Rose, editor of Jyllands-Posten, publisher of the Danish Muhhamad cartoons, on "Free Speech in a Globalized World."
When: Thursday, October 30, 2008, 7:00 PM
Where: Page Auditorium, Duke University (directions)
In September 2005 the Danish newspaper Jyllands-Posten published a series of cartoons depicting the Islamic figure Muhammad with images of terrorism. The newspaper’s publishers stated that they wanted to bring issues of free speech and censorship forward into public awareness. The result was a firestorm of protest, ordered by clerics some weeks after the publication, that highlighted the seriousness of this issue. Over one hundred people were killed in the ensuing riots.
This event will be a unique opportunity to hear the cultural editor of this publication explain the decision to publish these cartoons, the issues at stake in the decision, and the meaning of the protests and the violence that followed. A Q&A will follow the talk.
Flemming Rose is a journalist with long experience in European, Russian, and American issues. He has been awarded the "Free Speech Award" from the Danish Free Press Society.
By Diana Hsieh @ 12:03 AM
A few hours ago, Stephen Green of VodkaPundit sent out a mass e-mail to over 100 notable bloggers (and others) with this post on the threat of Obama attempting to apply the Fairness Doctrine to blogs, if elected. What the hell, I thought. So I replied to all with the following:
Stephen (and others) --
Like you, I'm seriously worried about free speech under Obama. But damned if I'd feel any more secure with McCain. The man has absolutely no respect whatsoever for the First Amendment -- and he showed that by sponsoring and passing the most severe restrictions on political speech in recent decades.
When asked whether McCain-Feingold violates freedom of speech, McCain said, "I would rather have a clean government than one where quote 'First Amendment rights' are being respected that has become corrupt. If I had my choice, I'd rather have the clean government."
Campaign finance laws are strangling political debate in America. In recent months, I've been forced to spend hours of my time filling out campaign finance forms -- just to spend a whopping $200 of my own money fighting Amendment 48. (That's the Colorado ballot measure that would grant full legal rights to fertilized eggs.) The money was used to print and mail copies of an issue paper I co-authored, i.e. simply to advocate my views. After that, I realized that spending money to defeat the measure just wasn't worth my cost in time. Galt help me if I was actually taking donations -- or spending serious money. I would have had to hire an army of accountants!
The next four years will be very bad for freedom of speech, regardless of the name of the man in the Oval Office. Blogs will likely be on the chopping block, and we'll have to fight for our most basic right to speak our mind.
(1) I'm familiar with the basics of the Fairness Doctrine, but it's not clear to me how it might be applied to online media (in general) and blogs (in particular). Does anyone know?
(2) I'm not sure that I agree with my last sentence: "Blogs will likely be on the chopping block." The fact is that blogs are substantially dependent on mainstream media. If the government effectively controls those sources of information, then it might not need to enact any controls particular to blogs to effectively silence them.
By Paul Hsieh @ 12:31 PM
Those who are interested in the future of free speech in Europe might find this article from the July 12, 2008 Wall Street Journal noteworthy. It documents the contrasting responses of Denmark and Holland to cartoonists accused of insulting Islam. Here are a few excerpts:
"Denmark protects its cartoonists. We arrest them," says Geert Wilders, a populist member of the Dutch Parliament...
The contrasting Danish and Dutch responses "show that there is a serious struggle of ideas going on for the future of Europe," says Flemming Rose, a Danish newspaper editor who commissioned the drawings of Muhammad in Jyllands-Posten. At stake, he says, is whether democracy protects the right to offend or embraces religious taboos so that "citizens have a right not to be offended."
As Arts & Letters Daily notes, "The Netherlands once sheltered Jews and other refugees from the Inquisition. Now it runs its own Inquisition..."
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