Calling the give and take of points of view in the course of democratic deliberation a “marketplace of ideas” can mean one of two things: (1) political speech occurs in a marketplace like any other and its production and marketing is finally no different from the production and marketing, say, of Coca Cola; or (2) the arena in which political speech is produced and consumed can be thought of as a marketplace, as long as we take care to make the appropriate adjustments in the light of the difference between Coca Cola cans — which can be regarded as fungible units, every one like every other one — and ideas, which cannot and should not be so regarded. (Ideas are not vying for market share; ideas cannot be ranked on a scale of efficiency or wealth-maximization; ideas are not redesigned and repackaged every two or three business cycles.)
I think Fish (or whoever’s opinion he’s entertaining) misses a few important points:
- Ideas aren’t vying for market share? Excuse me? Mr. Fish, for Heaven’s sake, isn’t your article precisely an attempt to promote some ideas over others? To fire off a meme or two into the ether in hopes that it sticks? Isn’t that what I’m doing, too? A gathering consensus is the sign of an idea winning. Opinion polling is often meant to capture the ideas that people hold. Getting people to hold certain ideas is a struggle advertisers and marketers have engaged in for a very long time.
- When I buy Coca-Cola (yum!), I’m not not making a decision about whether or not you buy Coca-Cola or Pepsi. My choice on behalf of The Real Thing doesn’t impose that choice on you. Electoral politics are different. If I vote for Coca-Cola and you vote for Pepsi and others do the same deliberation, one wins and one loses. For all of us. That seems to me to suggest that if liberty matters anywhere, it’s when you want someone empowered to regulate my behavior. I should have the right to oppose that with any voluntarily available means. Coke only regulates my behavior when I choose to drink it.
- Ideas aren’t the same as candidates. Ideas aren’t precisely the same as regulations or ballot initiatives. Ideas have power, yes, but they only have power when they’re heard and then acted upon.
An ad for Coke is as much an attempt to influence me toward some behavior as an ad for John McCain. The airtime costs the same (or it should). That doesn’t make them different. The difference, and I think many of the reformers would agree, is the practical outcome of me being influenced toward a particular decision.
And that’s where our paths diverge. Many reformers would say that political outcomes affect us all, we need to make sure that no particular voice or set of voices will distort the election, unlike ads for Coke. We’ll apparently have to leave aside the fact that only individuals get to vote, they only get to vote once and that corporations and “ideas” are denied that privilege.
Fish also says:
The large question is, which comes first, freedom of speech as guaranteed by the first amendment or democracy? The Citizens United majority assumes that the two are the one and the same, assumes that the free speech value is the very content of democracy and that therefore no value can stand as a counterweight to it.
Whoever said that democracy and free speech were BFFs to begin with? I haven’t read all (or even most) of Justice Kennedy’s majority opinion, but does anyone really believe that democracy protects free speech? I’m certain Anthony Kennedy doesn’t.
Fish also posits that, according to one legal idea, free speech meant to influence (read: “distort”) is fine (better than fine, it’s awesome) as long as it’s not, like, super loud. Or, in some causes, audible beyond your apartment or the average streetcorner:
Another assault on the Citizens United decision took a more legal, doctrinal form. In United States v. O’Brien (1968), the Court ruled that when speech and non-speech are “combined in the same course of conduct,” and the regulation is aimed at the conduct part with only an “incidental restriction” on the speech part, it will pass constitutional muster as long as it furthers an important government interest (like the interest in fair and undistorted elections, an interest the United States strongly advocates in other countries).
On the O’Brien model it could be argued, and was argued at the conference, that rather than being speech, the giving and spending of money in elections is conduct that has the effect of aiding speech by ramping up its volume. The idea is that while contributing and spending money may be a means of exercising a right, it is not itself the right, and its regulation can leave the right intact. (You have a right to shout to the world, “I love Mary,” and you may wish to hire a skywriter to proclaim that message, but were an ordinance to forbid or restrict skywriting, your right to express your love will not have been infringed.) Is there political speech without money? Yes. Is money sometimes useful to the expression of speech, including political speech? Yes. Is the useful vehicle the same as the expression it facilitates? No. Is it the money that talks? No. Money doesn’t talk; it aids talk and under O’Brien regulating its expenditure is regulating conduct.
Flag burning should be protected speech to the extent that the flag didn’t cost you anything. Do I have that right? The flag facilitated the expression. The flag itself is not the expression.
To get to the point where you separate the facilitation of speech from the words or message itself, you have to believe that the First Amendment doesn’t, in fact, protect the use of any medium to express those ideas. So, any speech that disrupts an “important government interest” where you use YouTube, a copying machine, a bullhorn, a printing press, your local TV or radio station, a flag and some matches, a film production company or any other facilitation of speech … would not get the same First Amendment protection as the same speech delivered on a soapbox on a busy street. Actually, scratch that. The soapbox probably would help your voice carry a little farther down the block.
Let’s say that the government has an important interest in “fair and undistorted elections.” If a community is voting on whether to adopt Soylent Green or Soylent Yellow as its primary source of food, it would be fine for Chuck Heston to report to those gathered on the street that Soylent Green is, as a matter of fact, people. If Chuck wanted to use, say, YouTube, a printing press, a corporate organization, a consulting firm, a film crew or a few paid spots on his local television station to deliver that message, he might well be prohibited from doing so. That is to say, if Chuck Heston wanted to “distort” the election by leveraging his message with media, he would not be free to do so. Every action but his frantic hand gestures and piercing pronouncements could be regulated as something other than speech.
That leaves the government, once again, in the unenviable position of having to decide what kinds of speech distort elections and what kinds don’t. An attempt to regulate money (leverage) once again becomes a de facto regulation on the content of speech.
It’s precisely what so many campaign finance reformers want: government regulation of publicly expressed opinion. That’s precisely what the majority in Citizens United wanted to prevent.