Dr. Bronner’s Embraces Citizens United

dr-bronners630

It’s refreshing to see a counterculture icon on like Dr. Bronner’s use its corporate treasury funds to advocate for the victory/defeat of a specific ballot initiative:

While many organics companies have contributed to Washington’s 522 campaign, none has gone to the mat like Dr. Bronner’s, which prominently displays a Yes on 522 ad on its soap labels. “Taking sides on a political campaign like that is totally unprecedented in the world of product labeling,” Robert Parker, the president of Label King, the printer of the Dr. Bronner’s labels, tells me as we float among the breakers during a company “board meeting”—an early morning surf at Carlsbad’s Terramar Beach with Bronner and a handful of his employees and friends.

This kind of activism might have been impossible just a few short years ago were in not for the Supreme Court’s Citizens United ruling. That ruling established that people, when acting together as owners of unions and corporations, do not lose their First amendment rights when they choose to use those entities to advocate in the world of electoral politics.

Here’s a short video on the subject (produced long before the decision was rendered):

John Yarmuth Is Wrong about The First Amendment

My former hometown NPR affiliate, WKMS in Murray, Kentucky aired my radio commentary yesterday. Here’s the text:

Congressman John Yarmuth believes that Citizens United was a bad Supreme Court decision. The two year old free speech ruling found that people don’t have to give up their right to associate freely when they want to speak freely and vice versa. And it allowed unions and corporations to facilitate political speech more easily.

Congressman Yarmuth, by way of overturning Citizens United, has written a Constitutional Amendment that, as he puts it, establishes “financial expenditures … do not qualify as protected speech under the First Amendment.” He further argues that the financial expenditures don’t even have to clearly express support or opposition for a candidate. That speech would no longer be protected by the Constitution.

To me, this seems odd. I used to work for John Yarmuth on occasion, writing articles in his former newspaper, LEO, about public policy and other matters. The reason Yarmuth’s claim seems odd is that his newspaper regularly endorsed candidates for political office and regularly published stories expressing support or skepticism toward political actors. I wonder if Yarmuth believes that his Constitutional amendment would hamper newspapers that endorse candidates as LEO did and still does.

Most newspapers are owned by corporations and it would be foolish to argue that a newspaper endorsement is not both a corporate expenditure and an “in kind” contribution, both of which are targeted by Yarmuth’s amendment. After all, it costs money to print a newspaper and newspaper endorsements are often extremely valuable to politicians during a campaign.

Now I expect that John Yarmuth doesn’t mean to single out newspapers or other media outlets for direct government regulation of political speech and he may respond that the government would use discretion and restraint when choosing which media outlets receive this higher level of scrutiny.

The problem, of course, is that Congress has already tried to regulate political speech in very scary ways. And they’ve done it by precisely claiming that spending money to advance an idea … isn’t really speech.

In 2010, the Supreme Court decided a case where advertisements for a political documentary were banned by the Federal Election Commission. And the Commission banned the film from being shown on Pay-per-View for weeks prior to elections. During the oral argument, justices asked the government’s lawyer if he thought the Federal Election Commission could even ban the sale of books, or publications for your kindle, that contained so-called “express political advocacy.” The government’s lawyer effectively said yes, we can.

That case was Citizens United. And the high court rightly threw out that kind of dangerous government censorship of political speech.

So a few questions should be put to Congressman Yarmuth: Do you really believe under your proposal that newspapers like LEO wouldn’t be subject to direct government regulation of their content? Is government censorship really the answer here?

Conduct and Speech

On the announced retirement of Justice Stephens, I’m reminded that he wrote a dissent in the case of Texas v. Johnson, a case that established that the First Amendment protects expressions of opinion through the medium of a burning flag.

Stephens disagreed, saying that the case “has nothing to do with ‘disagreeable ideas.’ It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset.”

Metaphorical national assets aside, separating ideas from conduct is the aim of many speech reformers who cringe when people use money to advocate on behalf of things they like. It’s the money they want to regulate, not the speech, don’t you see? Spending money is conduct, but everyone likes free speech. Yup, eeeeveryone likes free speech juuust fine.

The speech reformers just want to make sure that money doesn’t distort the minds of voters who, as we all know, are, well, fragile. Mentally. They just need to be free of the distractions of people who want to influence them unduly. Spending money on TV ads or the could inflame their passions, misrepresent The Truth about an incumbent or distort otherwise carefully deliberated, reasonably determined voter sentiment. We just need to let them think, so quit trying to influence those good people with your money-speech!

Burning a flag, while less expensive than a series of slick 30-second issue ads featuring a candidate in grainy slo-mo footage where he advocates on behalf of The Plague, is conduct that could do the same thing. It would, after all, be harder to regulate or ban outright if it were treated as speech. Would Shepard Fairey’s iconic in-kind assistance to the Obama campaign pass Constitutional muster if Stephens had his way and flag burning and ad buys were treated less like speech and more like hurling Molotov cocktails? How could it? Creating that image was an act with intent to influence! It was unadulterated, fully regulable conduct! Even if it did pass muster, it would require the rubber stamp of some kind of election committee. I don’t want to meet the people that incumbent lawmakers and presidents would appoint to such a committee.

Given President Obama’s bombast against a Supreme Court majority that found the First Amendment contains the right to organize for effective speech, I fully expect a Stephens replacement to possess the same hostility to speech-facilitating conduct (with intent to influence!).

(via Jonathan Blanks)

Free Speech, Democracy, Coca-Cola and People as Food

In a long recap of a conference on freedom of speech, democracy and Citizens United, Stanley Fish says:

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.