Free speech... if you can afford the megaphone! (Photo: Mike Keefe InToon.com)
On Democracy, Did Our Highest Court Ignore Its Strongest Argument?
Americans end up with the right to speak but zero right to be heard
Americans may disagree about many things, but most of us come together in loathing the Supreme Court's 2010 Citizens United. We know it helped degrade our democracy as it opened the floodgates to independent, corporate campaign spending and enabled additional rulings that have led to Super PACs, along with ever-more "dark money."
Three-fourths of us want Citizens United overturned. I'm certainly one, and I'd long assumed I knew everything I needed to know about this unfortunate ruling. But I was in for a big surprise.
Buried in the 1976 Supreme Court decision that first equated political spending and speech, unleashing "big money" in politics--and cited one hundred times in Citizens United--is an argument against the Court's own findings, and one that crystalizes a key purpose of the First Amendment.
That opinion is Buckley v. Valeo.
In it, the Court makes clear, citing two earlier rulings, that the First Amendment's intent is not just to protect individuals against government control of speech. It is also to serve a vital public function: "to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people"; and "to secure 'the widest possible dissemination of information from diverse and antagonistic sources.'"
Yet, the Roberts Court has continued to betray this public function, as legal scholar Tim Kuhner makes clear in "The Market Metaphor, Radicalized." Reclaiming it begins with grasping the consequences of the Court's move to interpret free speech narrowly as an individual or group right to spend unlimited sums blasting viewpoints across the political airwaves.
One result is that little bandwidth remains for those without big bucks--thus, denying the First Amendment right, defined in Buckley, to free exchange of ideas using information from diverse and opposing sources in order to achieve the policies we citizens want. In stressing "interchange" and "diverse" sources, here the Court captures what I conceive as the essential "conversation of democracy." In it, as in all conversation, participants must not only be able to speak but also to be heard.
Sadly, however, in both Buckley and Citizens United the Court's decisions belie its own articulation of these precepts.
The Court argues in Buckley that capping individual or group political spending "necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached."
But, think for a moment, isn't the opposite true?
Take the "number of issues discussed."
In 2016, one-half of 1 percent of donors contributed two-thirds of funding in federal elections. With most campaign messaging financed by such a tiny minority, the "number of issues discussed" is likely to be more "restricted," not less, narrowed to matters this elite can leverage for political outcomes in its interest.
And as to the "depth" of issues' "exploration"?
In 2016, with money flooding the electoral process, campaigns spent almost $9.8 billion on advertising alone, shrinking complex issues to emotional sound bites. Shallowness, not "depth," is the result--especially in a campaign's final days when ads can become misleading or worse.
And the size of the "audience reached"?
Surely $9.8 billion can buy large audiences, but the term "audience" connotes one-way communication, not "interchange." Thus, we Americans end up with the right to speak but zero right to be heard.
I feel as if I'm invited to an auditorium for a political dialogue, but only a few of those assembled can afford pricey, electronic megaphones. Quickly I get it. Yes, I can speak, but only the handful with megaphones can be heard. Feeling useless and belittled, I head home.
Clearly, without both the right to speak and to be heard we cannot attain the "changes desired by the people," a goal of the First Amendment embedded in Buckley.
Yet, despite this huge, Court-imposed, boulder in the path of democracy, millions of citizens are uniting their voices to make themselves heard. Pursuing democracy-strengthening reforms--including victories in the 2018 midterms--they are building a political framework for robust "interchange" to realize "political and social changes desired by the people." In leading the charge on such reforms as fair voting districts and elections funded by the public and small-donors, citizens are fostering the essential conversation of democracy--one not drowned out by megaphones of great wealth.
Ironically, these engaged citizens are being faithful to our First Amendment rights as once spelled out in the Court's own logic.
Urgent. It's never been this bad.
Dear Common Dreams reader, It’s been nearly 30 years since I co-founded Common Dreams with my late wife, Lina Newhouser. We had the radical notion that journalism should serve the public good, not corporate profits. It was clear to us from the outset what it would take to build such a project. No paid advertisements. No corporate sponsors. No millionaire publisher telling us what to think or do. Many people said we wouldn't last a year, but we proved those doubters wrong. Together with a tremendous team of journalists and dedicated staff, we built an independent media outlet free from the constraints of profits and corporate control. Our mission from the outset was simple. To inform. To inspire. To ignite change for the common good. Building Common Dreams was not easy. Our survival was never guaranteed. When you take on the most powerful forces—Wall Street greed, fossil fuel industry destruction, Big Tech lobbyists, and uber-rich oligarchs who have spent billions upon billions rigging the economy and democracy in their favor—the only bulwark you have is supporters who believe in your work. But here’s the urgent message from me today. It’s never been this bad out there. And it’s never been this hard to keep us going. At the very moment Common Dreams is most needed and doing some of its best and most important work, the threats we face are intensifying. Right now, with just hours left in our Spring Campaign, we're still falling short of our make-or-break goal. When everyone does the little they can afford, we are strong. But if that support retreats or dries up, so do we. Can you make a gift right now to make sure Common Dreams not only survives but thrives? There is no backup plan or rainy day fund. There is only you. —Craig Brown, Co-founder |
Americans may disagree about many things, but most of us come together in loathing the Supreme Court's 2010 Citizens United. We know it helped degrade our democracy as it opened the floodgates to independent, corporate campaign spending and enabled additional rulings that have led to Super PACs, along with ever-more "dark money."
Three-fourths of us want Citizens United overturned. I'm certainly one, and I'd long assumed I knew everything I needed to know about this unfortunate ruling. But I was in for a big surprise.
Buried in the 1976 Supreme Court decision that first equated political spending and speech, unleashing "big money" in politics--and cited one hundred times in Citizens United--is an argument against the Court's own findings, and one that crystalizes a key purpose of the First Amendment.
That opinion is Buckley v. Valeo.
In it, the Court makes clear, citing two earlier rulings, that the First Amendment's intent is not just to protect individuals against government control of speech. It is also to serve a vital public function: "to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people"; and "to secure 'the widest possible dissemination of information from diverse and antagonistic sources.'"
Yet, the Roberts Court has continued to betray this public function, as legal scholar Tim Kuhner makes clear in "The Market Metaphor, Radicalized." Reclaiming it begins with grasping the consequences of the Court's move to interpret free speech narrowly as an individual or group right to spend unlimited sums blasting viewpoints across the political airwaves.
One result is that little bandwidth remains for those without big bucks--thus, denying the First Amendment right, defined in Buckley, to free exchange of ideas using information from diverse and opposing sources in order to achieve the policies we citizens want. In stressing "interchange" and "diverse" sources, here the Court captures what I conceive as the essential "conversation of democracy." In it, as in all conversation, participants must not only be able to speak but also to be heard.
Sadly, however, in both Buckley and Citizens United the Court's decisions belie its own articulation of these precepts.
The Court argues in Buckley that capping individual or group political spending "necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached."
But, think for a moment, isn't the opposite true?
Take the "number of issues discussed."
In 2016, one-half of 1 percent of donors contributed two-thirds of funding in federal elections. With most campaign messaging financed by such a tiny minority, the "number of issues discussed" is likely to be more "restricted," not less, narrowed to matters this elite can leverage for political outcomes in its interest.
And as to the "depth" of issues' "exploration"?
In 2016, with money flooding the electoral process, campaigns spent almost $9.8 billion on advertising alone, shrinking complex issues to emotional sound bites. Shallowness, not "depth," is the result--especially in a campaign's final days when ads can become misleading or worse.
And the size of the "audience reached"?
Surely $9.8 billion can buy large audiences, but the term "audience" connotes one-way communication, not "interchange." Thus, we Americans end up with the right to speak but zero right to be heard.
I feel as if I'm invited to an auditorium for a political dialogue, but only a few of those assembled can afford pricey, electronic megaphones. Quickly I get it. Yes, I can speak, but only the handful with megaphones can be heard. Feeling useless and belittled, I head home.
Clearly, without both the right to speak and to be heard we cannot attain the "changes desired by the people," a goal of the First Amendment embedded in Buckley.
Yet, despite this huge, Court-imposed, boulder in the path of democracy, millions of citizens are uniting their voices to make themselves heard. Pursuing democracy-strengthening reforms--including victories in the 2018 midterms--they are building a political framework for robust "interchange" to realize "political and social changes desired by the people." In leading the charge on such reforms as fair voting districts and elections funded by the public and small-donors, citizens are fostering the essential conversation of democracy--one not drowned out by megaphones of great wealth.
Ironically, these engaged citizens are being faithful to our First Amendment rights as once spelled out in the Court's own logic.
Americans may disagree about many things, but most of us come together in loathing the Supreme Court's 2010 Citizens United. We know it helped degrade our democracy as it opened the floodgates to independent, corporate campaign spending and enabled additional rulings that have led to Super PACs, along with ever-more "dark money."
Three-fourths of us want Citizens United overturned. I'm certainly one, and I'd long assumed I knew everything I needed to know about this unfortunate ruling. But I was in for a big surprise.
Buried in the 1976 Supreme Court decision that first equated political spending and speech, unleashing "big money" in politics--and cited one hundred times in Citizens United--is an argument against the Court's own findings, and one that crystalizes a key purpose of the First Amendment.
That opinion is Buckley v. Valeo.
In it, the Court makes clear, citing two earlier rulings, that the First Amendment's intent is not just to protect individuals against government control of speech. It is also to serve a vital public function: "to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people"; and "to secure 'the widest possible dissemination of information from diverse and antagonistic sources.'"
Yet, the Roberts Court has continued to betray this public function, as legal scholar Tim Kuhner makes clear in "The Market Metaphor, Radicalized." Reclaiming it begins with grasping the consequences of the Court's move to interpret free speech narrowly as an individual or group right to spend unlimited sums blasting viewpoints across the political airwaves.
One result is that little bandwidth remains for those without big bucks--thus, denying the First Amendment right, defined in Buckley, to free exchange of ideas using information from diverse and opposing sources in order to achieve the policies we citizens want. In stressing "interchange" and "diverse" sources, here the Court captures what I conceive as the essential "conversation of democracy." In it, as in all conversation, participants must not only be able to speak but also to be heard.
Sadly, however, in both Buckley and Citizens United the Court's decisions belie its own articulation of these precepts.
The Court argues in Buckley that capping individual or group political spending "necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached."
But, think for a moment, isn't the opposite true?
Take the "number of issues discussed."
In 2016, one-half of 1 percent of donors contributed two-thirds of funding in federal elections. With most campaign messaging financed by such a tiny minority, the "number of issues discussed" is likely to be more "restricted," not less, narrowed to matters this elite can leverage for political outcomes in its interest.
And as to the "depth" of issues' "exploration"?
In 2016, with money flooding the electoral process, campaigns spent almost $9.8 billion on advertising alone, shrinking complex issues to emotional sound bites. Shallowness, not "depth," is the result--especially in a campaign's final days when ads can become misleading or worse.
And the size of the "audience reached"?
Surely $9.8 billion can buy large audiences, but the term "audience" connotes one-way communication, not "interchange." Thus, we Americans end up with the right to speak but zero right to be heard.
I feel as if I'm invited to an auditorium for a political dialogue, but only a few of those assembled can afford pricey, electronic megaphones. Quickly I get it. Yes, I can speak, but only the handful with megaphones can be heard. Feeling useless and belittled, I head home.
Clearly, without both the right to speak and to be heard we cannot attain the "changes desired by the people," a goal of the First Amendment embedded in Buckley.
Yet, despite this huge, Court-imposed, boulder in the path of democracy, millions of citizens are uniting their voices to make themselves heard. Pursuing democracy-strengthening reforms--including victories in the 2018 midterms--they are building a political framework for robust "interchange" to realize "political and social changes desired by the people." In leading the charge on such reforms as fair voting districts and elections funded by the public and small-donors, citizens are fostering the essential conversation of democracy--one not drowned out by megaphones of great wealth.
Ironically, these engaged citizens are being faithful to our First Amendment rights as once spelled out in the Court's own logic.