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January 26th, 2010


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01:42 am - When speech is too free (or perhaps simply too expensive)
I was horrified by the recent Supreme Court decision eliminating direct limits on corporate political spending, but I also completely agree with my friend nevikmoore that while vile, it’s not like large corporation didn’t have a multitude of various underhanded ways of using money for pretty much any political purpose that they wanted. I also read this article on the decision by Glenn Greenwald, where he is unhappy with the results of the decision, but agrees that the consequences will be minor due to the great influence corporate money already plays in politics. Greenwald also considers the issue of free speech and campaign finance reform is more complex than many proponents admit and that on this level, the decision wasn’t necessarily wrong - stating,
I tend to take a more absolutist view of the First Amendment than many people, but laws which prohibit organized groups of people -- which is what corporations are -- from expressing political views goes right to the heart of free speech guarantees no matter how the First Amendment is understood.
I’m inclined to agree that this decision fits with the First Amendment, but this leads me not to change my views on campaign finance reform, but to instead reconsider my views on the First Amendment and free speech. The issue goes well beyond corporations – even if all corporate campaign contributions were illegal, you could still have multi-millionaires like Rupert Murdoch contributing vast sums to various issues, and there’s little that could be done to stop this under any current laws.

My own view is that there are two issues – the first is the idea that money = speech, and that Supreme Court has ruled that the First Amendment guarantees citizens the right to spend money to promote their speech (in both Buckley vs. Valeo & Davis vs. FEC), and more crucially, the idea that paid media, specifically expensive and highly limited paid media, like all US mass media, are covered by the First Amendment. I’m increasingly disagreeing with this idea. Consider mass media, and specifically television (by far the most influential of the types of mass media). There is no real way in which you can classify television as free speech (with the exception of public access cable TV). Television is a limited media, and the only way to get your message on television is to:
  • Spend truly vast sums of money to buy advertising time
  • Make yourself sufficiently newsworthy that you are interviewed on television
  • Become a paid professional in the entertainment industry so that you can write TV shows or news copy, which must still then be approved by various higher ranking people.
That’s pretty much it. Ordinary private citizens, or even a group of a hundred or so private citizens have absolutely no way to get themselves upon television short of committing lurid crimes, and certainly no way to promote their messages or ideas in this media. So, what we have is a media that isn’t regulated by the government, it’s instead controlled by a very small group of wealthy people and corporations. As a result, I utterly fail to see why this media should be governed by the same laws that govern speaking in public, making a post in a blog, talking on the telephone, or any of a whole host of similar activities that private individuals can use to communicate with others. I absolutely agree that those venues should be governed by the First Amendment, but

I’d be overjoyed to see a law that banned all political messages that would appear on television or in any large newspaper or magazine. Instead, television, newspapers and magazines would be required to give up X amount of time or space to various political messages, to be divided equally among all registered candidates. Similarly, political or ideological messages not directly linked to political campaigns would be governed by a revived Fairness Doctrine .

Clearly, such laws would seriously violate the First Amendment, but from my PoV, the fault lies with the First Amendment. We deal with the legacy of archaic laws written for a very different age, with exceptionally different issues. I don’t expect the First Amendment to change, but I think many of the problems in US politics would improve if it did. One of the reasons that much of the rest of the First World has politics that less corrupt and horrid than politics in the US is the fact that they have far less difficulty regulating political campaigns. In any case, I don’t see serious progress being made without either rewriting or seriously redefining the First Amendment, because as long as the mass media is considered to be entirely protected by the First Amendment, there’s little chance of useful improvement.
Current Mood: contemplativecontemplative

(9 comments | Leave a comment)

Comments:


[User Picture]
From:cusm
Date:January 26th, 2010 03:27 pm (UTC)
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What you suggest is less a change to the 1st amendment, so much as a change to the definition of the media outlet itself. Considering broadcast television to be a type of public utility subject to government regulation not due its function but due its size and place in society. Which then puts it in the difficult position of requiring limits to speech to allow freedom of speech, or at least fairness in the political arena. A tricky line there.

I tend to consider corporations of sufficient size to no longer be legal person entities so much as competing states (or at least, political parties unto themselves). The way in which their lobbyists can buy politicians already makes our political system seem closer the House of Lords than it was ever intended to be. But the truth remains that our democracy is run by our corporate nobles. I think recognizing this as the problem and recognizing their status legally in this manner is the first step in putting some measure of control over it.

In this way, media outlets, by being owned entirely by a handful of large corporations, can be considered to be controlled speech by interested states. As such, regulation would be required by government to ensure free speech is preserved and opportunity for dissenting opinions given.

Of course, we're sort of moving away from broadcast media anyway as the internet matures so it'll probably all be moot before anything is actually done. One can hope.
[User Picture]
From:kadath
Date:January 26th, 2010 03:58 pm (UTC)
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Greenwald frustrates me. He's often perceptive, and then there are the times when he misses really obvious things. Like the fact that corporations are legally required to be sociopathic.

Corporatate boards aren't expressing the political views of a group of people when they donate to campaigns. They're acting to uphold their fiduciary responsibility to maximize profit, which is their main duty under American law. Even if you accept that money is equivalent to speech for the purposes of the First Amendment, commercial speech has some of the lowest protections possible. I'm increasingly convinced that First Amendment absolutism is disingenuous to the point of idiocy.
[User Picture]
From:alephnul
Date:January 27th, 2010 06:16 am (UTC)
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A distinction is worth making (and this case didn't) between corporations and for-profit corporations. Non-profits are not required to be sociopaths, only monomaniacs.
[User Picture]
From:slothman
Date:January 26th, 2010 06:47 pm (UTC)
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There’s a movement to amend the Constitution to make it explicit that corporations are not citizens; I have no idea if they’ll get enough momentum to get a bill introduced in Congress, but I’d love to see it happen.
[User Picture]
From:heron61
Date:January 26th, 2010 08:09 pm (UTC)
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That's a good start, but given how great the division between wealthy and non-wealthy individuals is in the US, I think we need to go further. OTOH, I wish them excellent luck with that. Sadly, I don't expect the effort to succeed, since the Supreme Court presidents affirming corporate citizenship are many and the first happened more than a century ago. Removing corporate citizenship would be a huge change.
[User Picture]
From:slothman
Date:January 26th, 2010 09:17 pm (UTC)
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The original one in Santa Clara County v. Southern Pacific Railroad was mostly invented by the court reporter, though, so one could make a good argument that anyone citing that original case was in error.
[User Picture]
From:rjgrady
Date:January 28th, 2010 03:31 am (UTC)
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I'm a big fan of the 1st ammendment. In my view, the way to tackle this is to tackle the content of political ads in a similar way slander, libel, fraud, and incitement to crime are handled.
[User Picture]
From:heron61
Date:January 28th, 2010 05:02 am (UTC)
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That would likely lead to something like how libel and slander laws are handled in Britain, which is not anywhere I'd like to see the US go. In the US, public negative speech about public figures is far more allowed than for private individuals, & I'm all for that.
[User Picture]
From:rjgrady
Date:January 28th, 2010 07:13 am (UTC)
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Still, I wonder if it wouldn't be nice if saying something blatantly untrue in a political ad were a crime.

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