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   Author  Topic: What Is the First Amendment For?  (Read 813 times)
Walter Watts
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What Is the First Amendment For?
« on: 2010-02-02 20:11:01 »
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Opinionator - A Gathering of Opinion From Around the Web
February 1, 2010, 9:30 pm

What Is the First Amendment For?

By STANLEY FISH


Citizens United v. Federal Election commission — the recent case in which the Supreme Court invalidated a statute prohibiting corporations and unions from using general treasury funds either to support or defeat a candidate in the 30 days before an election, and overruled an earlier decision relied on by the minority — has now been commented on by almost everyone, including the president of the United States in his state of the union address.

I would like to step back from the debate about whether the decision enhances our First Amendment freedoms or hands the country over to big-money interests, and read it instead as the latest installment in an ongoing conflict between two ways of thinking about the First Amendment and its purposes.

We can approach the conflict by noting a semantic difference between the majority and concurring opinions on the one hand and the dissenting opinion — a 90-page outpouring of passion and anger by Justice Stevens — on the other. The word most important to Justice Kennedy’s argument (he writes for the majority) is “chill,” while the word most important to Stevens’s argument is “corrupt.”

Kennedy, along with Justices Roberts, Alito, Thomas and Scalia (the usual suspects), is worried that the restrictions on campaign expenditures imposed by the statute he strikes down will “chill” speech, that is, prevent some of it from entering the marketplace of ideas that must, he believes, be open to all voices if the First Amendment’s stricture against the abridging of speech is to be honored. (“[A] statute which chills speech can and must be invalidated.”) Stevens is worried — no, he is certain — that the form of speech Kennedy celebrates will corrupt the free flow of information so crucial to the health of a democratic society. “[T]he distinctive potential of corporations to corrupt the electoral process [has] long been recognized.”

When Stevens writes “has long been recognized,” he is invoking the force of history and asking us to take note of the reasons why many past court decisions (including one written by then-Chief Justice Rehnquist) have acknowledged the dangers posed by corporations, dangers that provoked this declaration by Theodore Roosevelt in 1905: “All contributions by corporations to any political committee or for any political purpose should be forbidden by law.”

Behind such strong statements is a twin fear: (1) the fear that big money will not only talk (the metaphor that converts campaign expenditures into speech and therefore into a matter that merits First Amendment scrutiny), but will buy votes and influence, and (2) the fear that corporations and unions, with their huge treasuries, will crowd out smaller voices by purchasing all the air time and print space. The majority, Stevens admits, does “acknowledge the validity of the interest in preventing corruption,” but, he complains, it is not an interest it is interested in, for “it effectively discounts the value of that interest to zero.”

That’s not quite right. Kennedy and the others in the majority make the proper noises about corruption; they just don’t think that it is likely to occur and they spend much time explaining why corporations are citizens like anyone else (a proposition Stevens ridicules) and why, for various economic and public-relation reasons, they pose no threat to the integrity of the electoral process.

But even if they thought otherwise, even if they were persuaded by the dire predictions Stevens and those he cites make, they would come down where they do; not because they welcome corruption or have no interest in forestalling it, or discount the value of being concerned with it, but because they find another interest of more value, indeed of surpassing value. That is the value of being faithful to what they take to be the categorical imperative of the First Amendment, which, with respect to political speech, forbids the suppression of voices, especially voices “the Government deems to be suspect” (Kennedy); for if this voice now, why not other voices later?

Even if there were substance to the charge of “undue influence” exercised by those with deep pockets, it would still be outweighed, says Kennedy, citing an earlier case, “by the loss for democratic process resulting from the restrictions upon free and full discussion.” The question of where that discussion might take the country is of less interest than the overriding interest in assuring that it is full and free, that is, open to all and with no exclusions based on a calculation of either the motives or the likely actions of individual or corporate speakers. In this area, the majority insists, the state cannot act paternally. Voters are adults who must be “free to obtain information from diverse sources”; they are not to be schooled by a government that would protect them from sources it distrusts.

Notice how general Kennedy’s rhetoric has become. The specificity of Stevens’s concerns, rooted in the historical record and in the psychology and sociology of political actors, disappears in the overarching umbrella category of “information.” The syllogism is straightforward. Freedom of information is what the First Amendment protects; corporation and unions are sources of information; therefore their contributions — now imagined as wholly verbal not monetary; the conversion is complete — must be protected, come what may.

That, Kennedy is saying, is the Court’s job, to allow the process to go forward unimpeded. It is not the Court’s job to fiddle with the process in an effort to make it fairer or more representative, a point Chief Justice Roberts makes in his concurring opinion when he cites approvingly the Court’s “repudiation,” in Buckley v. Valeo (1976), “of any government interest in ‘equalizing the relative ability of individuals and groups to influence the outcomes of elections.’” Equality may be a good thing; it might be nice if no one had a disproportionate share of influence; but it’s not our job to engineer it. Let the market sort it out.

The majority’s reasoning reaches back to a famous pronouncement by Oliver Wendell Holmes, who acknowledges in Gitlow v. New York (1925) that there are forms of discourse, which, if permitted to flourish, might very well bring disastrous results. Nevertheless, he says, “If in the long run the beliefs expressed . . . are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”

Holmes’s fatalism — let everyone speak and if the consequences are bad, so be it — stands in contrast to the epistemological optimism of Justice Brandeis who believes that if the marketplace is allowed to be completely open bad speech will be exposed and supplanted by good speech (a reverse Gresham’s law): “The remedy to be supplied is more speech, not enforced silence” (Whitney v. California, 1927). Both justices reject state manipulation of the speech market , one because he is willing to take what comes — it is Holmes who said that if his fellow countrymen wanted to go to hell in a hand-basket, it was his job to help them — the other because he believes that what will come if speech is unfettered will be good.

The justices in the Citizens United majority are more in the Brandeis camp. They believe that free trade in ideas with as many trading partners as wish to join in will inevitability produce benign results for a democratic society. And since their confidence in these results is a matter of theoretical faith and not of empirical or historical observation — free speech is for them a religion with long-term rewards awaiting us down the road — they feel no obligation to concern themselves with short-term calculations and predictions.

Stevens also values robust intellectual commerce, but he believes that allowing corporate voices to have their full and unregulated say “can distort the ‘free trade in ideas’ crucial to candidate elections.” In his view free trade doesn’t take care of itself, but must be engineered by the kind of restrictions the majority strikes down. The marketplace of ideas can become congealed and frozen; the free flow can be impeded, and when that happens the only way to preserve free speech values is to curtail or restrict some forms of speech, just as you might remove noxious weeds so that your garden can begin to grow again. Prohibitions on speech, Stevens says, can operate “to facilitate First Amendment values,” and he openly scorns the majority’s insistence that enlightened self-government “can arise only in the absence of regulation.”

The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism. For a consequentialist like Stevens, freedom of speech is not a stand-alone value to be cherished for its own sake, but a policy that is adhered to because of the benign consequences it is thought to produce, consequences that are catalogued in the usual answers to the question, what is the First Amendment for?

Answers like the First Amendment facilitates the search for truth, or the First Amendment is essential to the free flow of ideas in a democratic polity, or the First Amendment encourages dissent, or the First Amendment provides the materials necessary for informed choice and individual self-realization. If you think of the First Amendment as a mechanism for achieving goals like these, you have to contemplate the possibility that some forms of speech will be subversive of those goals because, for instance, they impede the search for truth or block the free flow of ideas or crowd out dissent. And if such forms of speech appear along with their attendant dangers, you will be obligated — not in violation of the First Amendment, but in fidelity to it — to move against them, as Stevens advises us to do in his opinion.

The opposite view of the First Amendment — the view that leads you to be wary of chilling any speech even if it harbors a potential for corruption — is the principled or libertarian or deontological view. Rather than asking what is the First Amendment for and worrying about the negative effects a form of speech may have on the achievement of its goals, the principled view asks what does the First Amendment say and answers, simply, it says no state abridgement of speech. Not no abridgment of speech unless we dislike it or fear it or think of it as having low or no value, but no abridgment of speech, period, especially if the speech in question is implicated in the political process.

The cleanest formulation of this position I know is given by the distinguished First Amendment scholar William Van Alstyne: “The First Amendment does not link the protection it provides with any particular objective and may, accordingly, be deemed to operate without regard to anyone’s view of how well the speech it protects may or may not serve such an objective.”

In other words, forget about what speech does or does not do in the world; just take care not to restrict it. This makes things relatively easy. All you have to do is determine that it’s speech and then protect it, as Kennedy does when he observes that “Section 441b’s prohibition on corporate independent expenditures is . . . a ban on speech.” That’s it. Nothing more need be said, although Kennedy says a lot more, largely in order to explain why nothing more need be said and why everything Stevens says — about corruption, distortion, electoral integrity and undue influence — is beside the doctrinal point.

The majority’s purity of principle is somewhat alloyed when it upholds the disclosure requirements of the statute it is considering on the reasoning that the public has a right to be informed about the identity of those who fund a corporation’s ads and videos. “This transparency enables the electorate to make informed decisions.”

Justice Thomas disagrees. The interest “in providing voters with additional relevant information” does not, he says, outweigh “’the right to anonymous speech.’” The majority’s claim that disclosure requirements do not prevent anyone from speaking is, Thomas declares, false; those who know that their names will be on a list may refrain from contributing for fear of reprisals and thus be engaged in an act of self-censoring. The effect of disclosure requirements, he admonishes, is “to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights.”

Only Thomas has the courage of the majority’s declared convictions. Often the most principled of the judges (which doesn’t mean that I always like his principles), he is willing to follow a principle all the way, and so he rebukes his colleagues in the majority for preferring the value of more information to the value the First Amendment mandates — absolutely free speech unburdened by any restriction whatsoever including the restriction of having to sign your name. Thomas has caught his fellow conservatives in a consequentialist moment.

The consequentialist and principled view of the First Amendment are irreconcilable. Their adherents can only talk past one another and become increasingly angered and frustrated by what they hear from the other side. This ongoing soap opera has been the content of First Amendment jurisprudence ever since it emerged full blown in the second decade of the 20th century. Citizens United is a virtual anthology of the limited repertoire of moves the saga affords. You could build an entire course around it. And that is why even though I agree with much of what Stevens says (I’m a consequentialist myself) and dislike the decision as a citizen, as a teacher of First Amendment law I absolutely love it.

    * Copyright 2010 The New York Times Company
 
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Walter Watts
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Re:What Is the First Amendment For?
« Reply #1 on: 2010-02-03 14:12:08 »
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This crapulence by one of the major beneficiaries (i.e. the media owners) of the new political system in the US, "Kleptocratic Posturism."

Every other society in all of recorded history, without a single exception, that has moved to within 30% of the concentration of wealth achieved in the US, has had revolutions that hurt everyone, but at lease redistributed the wealth that survived the revolutions. In the US this has not occurred, possibly due to corporate ownership of the media, with the great unwashed unable to imagine that this not only can be, but has proven itself to be, vastly more pernicious than state control. At least the population of the USSR knew that Pravda was comfortable propagating political optimism indistinguishable from clinical delusion. Here many people imagine that things are improving despite the complete lack of evidence that this is the case.

As for reform, the citizens of the US do not care about life expectancy or quality of life, or even if they spend the rest of their miserable lives without medical, dental, optical care or even pensions. It is now totally apparent that the bankers own the politicians and the supreme court, making all of the political games being played out in the collapse of the hegemony a total farce - and the public doesn't care. It is completely safe to say that the US is currently enjoying the government that it has bought and contrary to the pathetic belief still held by some Americans, no amount of political action, especially by those working poor who might most benefit from reform and are most adamantly set against it (and most of whom reliably voted Republican and may now vote Teaparty), is going to change this reality in the little time we have left.

And as the full extent of the failure of the US becomes apparent, the Times will still bleat on like a demented sheep about how good it is for their readers to stand quietly in line, even if they don't really enjoy being raped.
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With or without religion, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion. - Steven Weinberg, 1999
Walter Watts
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Re:What Is the First Amendment For?
« Reply #2 on: 2010-02-03 20:44:07 »
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Quote from: Hermit on 2010-02-03 14:12:08   

This crapulence by one of the major beneficiaries (i.e. the media owners) of the new political system in the US, "Kleptocratic Posturism."

Every other society in all of recorded history, without a single exception, that has moved to within 30% of the concentration of wealth achieved in the US, has had revolutions that hurt everyone, but at lease redistributed the wealth that survived the revolutions. In the US this has not occurred, possibly due to corporate ownership of the media, with the great unwashed unable to imagine that this not only can be, but has proven itself to be, vastly more pernicious than state control. At least the population of the USSR knew that Pravda was comfortable propagating political optimism indistinguishable from clinical delusion. Here many people imagine that things are improving despite the complete lack of evidence that this is the case.

As for reform, the citizens of the US do not care about life expectancy or quality of life, or even if they spend the rest of their miserable lives without medical, dental, optical care or even pensions. It is now totally apparent that the bankers own the politicians and the supreme court, making all of the political games being played out in the collapse of the hegemony a total farce - and the public doesn't care. It is completely safe to say that the US is currently enjoying the government that it has bought and contrary to the pathetic belief still held by some Americans, no amount of political action, especially by those working poor who might most benefit from reform and are most adamantly set against it (and most of whom reliably voted Republican and may now vote Teaparty), is going to change this reality in the little time we have left.

And as the full extent of the failure of the US becomes apparent, the Times will still bleat on like a demented sheep about how good it is for their readers to stand quietly in line, even if they don't really enjoy being raped.


[Walter]
All I read was a description and breakdown of the majority and minority opinions on the case.

What were you reading?


Walter
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Walter Watts
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Re:What Is the First Amendment For?
« Reply #3 on: 2010-02-03 22:47:39 »
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I found this piece a thinly disguised, massively biased defence, hiding behind a mask of "more in sorrow than in anger", of the Roberts' Court's judgement published by media thoroughly owned by the interests that sought and obtained that decision. When Shakespeare's Mark Anthony "came not to praise great Caesar but to bury him" the net result was the opposite. In this case the words are not Shakespearian,  but the appearance and the intent are at similar odds. Given his position, I give the author the credit of assuming that his competent use of framing and rhetorical devices to not just eliminate but obliterate the opposing position was deliberate - as most likely was the editors decision to run this hatchet job.

"It stinks" (from Tom Lehrer's Lobachevsky (infra))





For many years now, Mr. Danny Kaye, who has been my particular idol since childbirth, has been doing a routine about the great Russian director Stanislavsky and the secret of success in the acting profession. And I thought it would be interesting to stea... to adapt this idea to the field of mathematics. I always like to make explicit the fact that before I went off not too long ago to fight in the trenches, I was a mathematician by profession. I don't like people to get the idea that I have to do this for a living. I mean, it isn't as though I had to do this, you know, I could be making, oh, 3000 dollars a year just teaching.

Be that as it may, some of you may have had occasion to run into mathematicians and to wonder therefore how they got that way, and here, in partial explanation perhaps, is the story of the great Russian mathematician Nicolai Ivanovich Lobachevsky.

Who made me the genius I am today,
The mathematician that others all quote,
Who's the professor that made me that way?
The greatest that ever got chalk on his coat.

One man deserves the credit,
One man deserves the blame,
And Nicolai Ivanovich Lobachevsky is his name.
Hi!
Nicolai Ivanovich Lobach-

I am never forget the day I first meet the great Lobachevsky.
In one word he told me secret of success in mathematics:
Plagiarize!

Plagiarize,
Let no one else's work evade your eyes,
Remember why the good Lord made your eyes,
So don't shade your eyes,
But plagiarize, plagiarize, plagiarize -
Only be sure always to call it please 'research'.

And ever since I meet this man
My life is not the same,
And Nicolai Ivanovich Lobachevsky is his name.
Hi!
Nicolai Ivanovich Lobach-

I am never forget the day I am given first original paper
to write. It was on analytic and algebraic topology of
locally Euclidean parameterization of infinitely differentiable
Riemannian manifold.
Bozhe moi!
This I know from nothing.
What-i'm going-to do.
But I think of great Lobachevsky and get idea - ahah!

I have a friend in Minsk,
Who has a friend in Pinsk,
Whose friend in Omsk
Has friend in Tomsk
With friend in Akmolinsk.
His friend in Alexandrovsk
Has friend in Petropavlovsk,
Whose friend somehow
Is solving now
The problem in Dnepropetrovsk.

And when his work is done -
Ha ha! - begins the fun.
From Dnepropetrovsk
To Petropavlovsk,
By way of Iliysk,
And Novorossiysk,
To Alexandrovsk to Akmolinsk
To Tomsk to Omsk
To Pinsk to Minsk
To me the news will run,
Yes, to me the news will run!

And then I write
By morning, night,
And afternoon,
And pretty soon
My name in Dnepropetrovsk is cursed,
When he finds out I publish first!

And who made me a big success
And brought me wealth and fame?
Nicolai Ivanovich Lobachevsky is his name.
Hi!
Nicolai Ivanovich Lobach -

I am never forget the day my first book is published.
Every chapter I stole from somewhere else.
Index I copy from old Vladivostok telephone directory.
This book was sensational!
Pravda - well, Pravda - Pravda said: "Zhil-bil korol kogda-to, pree nyom blokha zhila"[1] It stinks.
But Izvestia! Izvestia said: "Ya idoo kuda sam czar idyot peshkom!"[2]
It stinks.
Metro-Goldwyn-Moskva buys movie rights for six million rubles,
Changing title to 'The Eternal Triangle',
With Ingrid Bergman playing part of hypotenuse.

And who deserves the credit?
And who deserves the blame?
Nicolai Ivanovich Lobachevsky is his name.
Hi!

[1] "a king lived once upon a time, a flea lived with him", a line from Goethe's "Faust" (as translated by A. Strugovschik)

[2] "I am going where even the king has to go on foot" (as opposed to riding, etc.), meaning "to the bathroom"
« Last Edit: 2010-02-04 23:05:06 by Hermit » Report to moderator   Logged

With or without religion, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion. - Steven Weinberg, 1999
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