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As The Anti-Citizens United Movement Grows, The Plutocrats Will Surely Attack

Democracy reformers can surmount the coming corporatist attacks.

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But as the movement gains credibility, so too can we expect it to gain more vocal opposition.  And to move beyond the “fighting” stage to winning, we will need more sophisticated answers to critics than the bumper sticker slogans of “money is not speech” and “corporations are not people” that accurately describe the core values at stake but also leave room for ill-founded counter attack.

Is Spending Money The Same As Free Speech?

We could begin by noting that while it is entirely true that money is not speech, the Supreme Court never said that it was.  What the court majority said in Buckley was that “virtually all meaningful political communications in the modern setting involve the expenditure of money.”  The flaw in this logic is not that dissemination of ideas requires resources, but that the Court then presumed that it was always the speaker that needed to spend the money, when to the contrary much our most important speech is instead paid for by the listener.

For example, when Occupy activists occupied Zucotti Park near Wall Street in the fall of 2011, they didn’t expend many funds.  But, people heard their speech because they bought newspapers that disseminated it.  Or, they bought TVs, and radios, and computers which disseminated it. We can draw a clear line between speech that is pushed out by the speaker, and speech that a reader subscribes to or a listener tunes in to hear.  Even with speech that is paid for by advertising revenues, or subsidized by other sources (in cases such as NPR, or the Washington Examiner), we can draw a distinction between speech such as news coverage and opinion that is sought out, and paid speech that is foisted upon a listener in unsolicited advertisements.  Books, newspapers, and TV programs – yes even Fox News – clearly fall within the purview of free speech and the free press, even if they do require the expenditure of money. But TV commercials, “junk” mail, and internet pop-up or banner ads fall within the purview of paid speech.

It is ironic that the Court missed an opportunity to draw this distinction in the case of Citizens United, which dealt with both a pay-for-view movie that clearly was something viewers would be opting into, and advertisements that simultaneously promoted the movie and attacked a federal candidate for office (Hillary Clinton) that was clearly a form of paid speech foisted upon viewers.

Even unsolicited political speech surely does deserve strong constitutional protections.  The Supreme Court, for instance, has long upheld the right of people to knock on the doors of their neighbors to express a political viewpoint, even if the community can ban door-to-door salesmen and solicitors.  Anyone is free to set up a soapbox in the public square and say anything they want. But these protections are not unlimited.  Communities can and do set reasonable time, place, and manner restrictions even on political speech. (That’s why some Occupy protests were not allowed inside courthouses).

Justice Stevens drew the distinction between free speech, which deserves strong First Amendment protection, and paid speech perfectly in his concurring opinion in the 2000 case known as Nixon v. Shrink Missouri Government PAC, saying:

Money is property, it is not speech. …The right to use one’s own money to hire gladiators, or to fund “speech by proxy,” certainly merits significant constitutional protection. These property rights, however, are not entitled to the same protection as the right to say what one pleases.

Note the important difference between Stevens saying that spending money on speech “warrants significant constitutional protection,” and the language of some early amendment proponents that the judiciary shall not construe the “spending of money to influence elections to be speech under the First Amendment.”