The Puzzle of Free Speech and Money

The Supreme Court has ruled that money and speech are interchangeable. They have logic on their side. With money I can buy an advertisement, rent a building to hold a forum, or pay to have my views printed in a book. Take away my right to spend that money, and you have abridged my speech.

Thus, the Supremes say, we can’t limit campaign contributions, even when made by corporations. The Supremes’ vision is of a complete free-for-all of speech, without limitations of any kind (except on non-citizens, and on speech advocating violence or creating unsafe conditions).

I understand this vision of free speech, which focuses on the actions of the free individual. But there is another vision which focuses on the dissemination of ideas. Free speech that fosters our democracy must create conditions where every point of view can be heard. To take an extreme example, you cannot have free speech if you are speaking next to a cement mixer. Or next to a man who is shouting loudly. Your speech gets drowned out. That happens if money can be spent without limit, because an underfunded message gets drowned out in our media culture. Thus truly free speech in which all voices are heard must somehow level the media playing field.

There’s also the consideration of corruption. Political money not only buys speech, it buys politicians. Why do you think Wall Street, after having crashed the economy, stands largely unreformed? They pay politicians (or lobbyists, which is almost the same thing) to make sure they can carry on their profitable ventures without government regulation. And there are many arcane examples of much greater abuse, such as special provisions slipped into the tax code to favor just one company.

The argument in favor of campaign finance regulation is that a truly vital democracy depends on limiting the influence of money, both in buying influence in Washington and in buying a dominating voice through the media. You have to interpret the Constitution in terms of original intent—the intention to create a robust interchange of ideas, rather than the intent to preserve the privilege and power of the well-off. Times have changed, and so must the law.

The Supremes are closer to the language of the Constitution. They have opted for an approach that is easy to understand and simple to govern—no restrictions. Those who want to regulate campaign finance opt for a much more complex regime that requires laws that are subtler and more modulated than reasonable people can expect. Their vision of a more balanced dialogue and a less corrupt government is attractive—and it could make a genuine contribution to our democracy. But practically speaking, can it be done?

I’m torn. I hate the way in which money has come to dominate politics. I think it’s truly dangerous. But I respect the clean simplicity of the Supreme Court’s logic, and I’m dubious about how successful regulation can be in damming up the influence of cash. What do you think?

 

The First Amendment and Hastings Law School

I had lunch with Paul Gullixson, my friend and fellow church member who is editorial page editor for the Santa Rosa Press Democrat. Since Paul is something of an expert on the First Amendment, I asked him about the Supreme Court’s decision regarding the Hastings Law School. The court ruled the school is justified in limiting official recognition (and subsidization) to student clubs that accept any and all. The school had dropped recognition of their chapter of the Christian Legal Society after the club adopted a constitution requiring members to be orthodox believers, and not to be practicing homosexuals. The club then sued the school, and the case was appealed all the way to the Supreme Court, where the club lost.

The case walked a fine line. The school wasn’t barring the club—which I think would be unconstitutional discrimination—but saying it didn’t deserve a subsidy. Must a state school subsidize all clubs if it subsidizes any club? The court decided that the school acted within its rights in choosing to support only clubs that are open to anyone.

I’m cautiously thinking that the court got it right. I don’t think a school should be required to subsidize a Wicca club that is only open to people with tattoos, or an atheists’ club that requires members to swear there is no God. I’ll grant you that the school probably targeted a Christian club because of what they see as its anti-gay bias. I think the school is wrong about that. But I think—cautiously—that they pursued their objectives in a legally acceptable way.

I’m not sure why the CLS decided to add those stipulations to its constitution, but it looks as though they were begging for a fight. Couldn’t they have achieved their objectives—presumably preserving the Christian character of the club—in other ways?

Whatever their motives, the result is likely to be used unfairly. Paul reminded me that most people—including many in positions of responsibility—have no idea how to apply the First Amendment. He told me of a reader who insisted, in all seriousness, that a school field trip to one of the California missions was a violation of the separation of church and state. I told him about a middle school that chose “Imagine” as its official school song. The court may have decided the law correctly, but the precedent will encourage all kinds of illegitimate discrimination against religion.

And that’s one of the dilemmas in making a public fight. When you lose a narrow decision, the results reverberate widely.

p.s. Gullixson notes that “the court upheld the school’s policy….but it did not rule on the Christian Legal Society’s claim that the school enforced its rules selectively. That issue was returned to an appeals court. In other words, they may have lost the battle but still could win the war – over being treated fairly and equitably.”