My Old Kentucky Homesite

“No Law” Means No Law

Posted by Larry Wallberg on 01/22/2010

I’m a free-speech purist. I agree with Justice Hugo Black, who, commenting on the First Amendment, said: “No law” means no law.

It sometimes happens that insisting on free speech is inconvenient for some citizens, perhaps even the majority of citizens. But the right of free speech, and its sibling right of a free press, are the most important rights we as Americans have.

I’ve read a number of impassioned responses to yesterday’s Supreme Court opinion in Citizens United v. Federal Election Commission. One of them came from one of my best friends, whose email decrying the opinion stated that she was “so disgusted.” Another response appeared as a post by a blogger friend of mine, whose intelligence I respect.

After writing an email to the former and commenting on the essay of the latter, I thought my rant mechanism would be satisfied. But it’s not. So I’m going to lift some of my own words to state my position clearly here, in case anyone else asks.

I agree with the critics of the decision that in its immediate aftermath, big corporations will feel further empowered to interfere with politics – at least in a non-clandestine way.  (Note: they never stopped trying to influence elections in a covert manner.)

I disagree strongly, however, that the decision was a bad one. The First Amendment says: “Congress shall make no law … abridging the freedom of speech or of the press …” It doesn’t state that it specifically relates to a person’s freedom; it’s a blanket ban on the U.S. Congress censoring or restricting any kind of speech.

Some victims of censorship – be they individuals, organizations, or corporations – may well be beneath contempt, or even dangerous. The public dialogue may well benefit from keeping those disruptive forces safely squelched. American democracy, as it’s constituted today, may well fare better when messages are controlled.

However, we free-speech purists must be vigilant. Any nickering away at the principle of an open dialogue, no matter how small, endangers every American. If Congress can get away with banishing one group from the forum of public opinion, who’s to say that everyone else’s freedom is guaranteed?

Civil libertarians on both the left and the right understand this, and so filed briefs for the appellant in this case. Along with all the usual “bad guys,” supporters of Citizens United included the ACLU, the California First Amendment Coalition, the Reporters Committee for Freedom of the Press, and the Center for Competitive Politics.

We can’t know the motivations of the Supreme Court Justices. They might have wanted to favor big businesses over “everyday Americans” — whoever those mythical creatures may be. They might be the right-wing extremists that they’re often painted as being; I can point to a number of decisions that seem to reinforce that stereotype, and that trouble me in their politico-legal machinations.

But the Court’s decision yesterday was dead-on correct. “No law” means no law.


13 Responses to ““No Law” Means No Law”

  1. srsny said

    I would concur with you and Justice Black, but would like to cite Justice Holmes (“falsely crying fire”). And, although I’m too lazy to go look through my old media law notes, I also would like to mention libel, acutal malice, defamation, etc. OMG! I used to know all those cases, by name and – if not date, at least chronological order, and how each successive case modified the previous ones. Oh I was quite a font of judicial information. Now, simply brain dead, I simply will point out that speech is not completely unbridled. And yes, I believe the only cure for speech is more speech. But, apparently the issues in this case are not quite as simple as “no law.” I’m still processing it all through my swiss cheese brain, but I suggest you take a look at Stevens’ dissent.

  2. Srsny:
    Well, I’ve read Stevens’s dissent. I disagree with it for a number of reasons, not the least of which is the issue of “a person” versus “a corporation.” As I pointed out in my post, the First Amendment bans all Congressional restrictions on speech. I also have no idea what “viewpoint-neutral” regulation of advocacy messages are; all expression has a viewpoint.

    Defamation laws, by the way, are in an entirely different category. They don’t actually restrict speech; they punish those who have spoken falsely. So they’re OK. I’m also a big fan of prosecutions for fraud. Ideally, the corporations whose political ads are lies could be challenged in court, and punished. But only after the speech, free and unfettered, is aired.

    At one point in his dissent, Stevens said:

    Such an assumption [that the identity of the speaker has no relevance] would have accorded the propaganda broadcasts to our troops by “Tokyo Rose” during World War II the same protection as speech by Allied commanders.

    Now, as startled as you may be by my saying this, I believe that “Tokyo Rose’s” oeuvre, judged as speech, was expression that should have been protected by the First Amendment. (In point of fact, the most notorious of the Tokyo Roses, Iva Toguri D’Aquino, was tried on a number of counts of treason, even though the Department of Justice thought her propaganda was “innocuous.” In 1949, she was convicted on only one count, but later pardoned by Gerald Ford — because witnesses had perjured themselves!)

    Yes, people are often harmed by speech. But that’s the price we have to pay if we’re going to have a truly free country. The “acceptable” in speech varies with many factors, the political climate being one of the major ones. But the Founders, wisely, chose not to depend on the people’s judgment of what should and should not be said. The First Amendment, I believe, is an absolute.

    Yeah, I’m an extremist on this issue. But Black was right. “No law” means no law.

  3. srsny said

    I totally agree with you on Tokyo Rose, but have to stand firm on libel (despite the fact that Tokyo Rose clearly had actual malice.) By the way, I’d love to hear your take on the Stevens dissent.

  4. Bah.
    You flag-burning left wing extremists are all alike.
    I bet you like porn too. :)

  5. Srsny:
    As you know, I’m not an expert on defamation law (or anything, for that matter). But as I understand it: there are different standards for establishing libel (written) and/or slander (spoken), depending on whether the target is a private individual or a public figure. Statements of opinion (e.g., “Larry Wallberg is an asshole”) are always protected; it’s clear that the person saying or writing that phrase does not present as fact that I am literally a body part. Statements that include alleged facts (e.g., “Larry Wallberg is an asshole who never got past fifth grade”) can be construed as defamatory, because anyone who takes the trouble to explore my history can easily discover that I finished junior high.

    I think you’re right when you say that not only must the defamation include provably false statements (in light of that business about “a reckless disregard for the truth”), but there must also be malicious intent.

    But suits for libel and/or slander are actions that a defamee (is that a word?) can take after the statement has been published and/or uttered in the presence of a third party. I believe the First Amendment implies that in no instance should prior restraint of expression be allowed. As I see it, the campaign finance law that was overturned was essentially about prior restraint, wasn’t it?

    I bet you like porn too.
    Well, I’m getting a little too old to find porn titillating, but I’m still a big fan of obscenity. So fuck that shit. (By the way, that’s a statement of opinion; I’m not actually telling anyone to have sex with fecal matter.)

  6. srsny said

    The difficulty with libel law is that, even though you may prove malice, it is hard to sue because, in order to collect something, you also must demonstrate actual damages, that is, that the defamation has cost you something that is collectable.

    BTW – I appear to have missed your Stevens analysis, before I reiterated my exhortation for you to read it. Ooops.

  7. srsny said

    The part of Stevens that I found most convincing was the part where he was discussing campaign finance law. Perhaps because I don’t really understand campaign finance law. But, you know, I live in a city where the mayor just spent a record 85 million dollars to beat someone most New Yorkers never heard of, and as a result of that money, was able to collect a measly 51 per cent of the vote. It seems to me, once large sums of money are involved, speech becomes extremely fettered. The guy who ran against Bloomberg had no chance of buying as much unfettered speech as the mayor, so he didn’t have a chance of getting his message across. Admittedly, a stronger candidate than Bill Thompson might have weathered the financial Tsunami, but I don’t know.

  8. Srsny:
    Well, I’m also not happy about corporations — or individuals like Bloomberg — spending fortunes on elections. But whether I appprove or not of a particular instance of public expression is immaterial. The principle of free speech is crucially important.

    As far as Bloomberg’s election goes: If he’d had a viable opponent, it might not have mattered how much he spent. We can’t know for sure, can we? But if he only collected 51% of the vote despite his billions, apparently his advertising money wasn’t working too effectively.

    I do know that plenty of candidates who have been essentially anti-megacorporations have managed to win elections in this country, even before campaign finance “reform” kicked in. (I remind you of both Roosevelts and Truman.) So perhaps all the liberal breast-beating about big business controlling the collective mind of the electorate is just unwarranted hysteria.

    I’m far more concerned about corporations controlling those who have been elected. How come Obama and the Dems approved of the bailouts? That had nothing to do with campaign financing, since the Court’s decision hadn’t come down yet. If corporations control the government — and I think they do to some extent — they manage it in a far more insidious and sinister way than openly contributing to campaigns.

  9. Linwood said

    There is something inherently wrong with a decision which undermines the very rights the law/amendment was meant to protect. Free speech? This is bought speech. I’ve come to realize that the much-vaunted ‘democracy’ this self-righteous country likes to flaunt is not worth the paper it’s written on.
    How does it feel to live in a sham democracy?

  10. Indeed, it is clear and obvious that “money talks” and is to be recognized as Speech. There can be no Doubt that this is what your Founding Fathers intended. For if you but shake a fat enough wad of bills or financial statements, then they indisputably make a rustling sound more Fair by Far than most political sound-bites or other sorts of Farts.

    Your current Governance in its Great Wisdom (and absolutely NOT owing to any sort of corrupting influences by, say, major corporations) is simply carrying out the manifest intention of your Founders to have goverment of, by and for the Major Corporations.

  11. Linwood:
    Cute wordplay there. Perhaps we’ll hear it as a soundbite from one of our politicos. But, seriously, how does speech affect democracy, per se? Throughout the history of democratic governments, the demos has always been swayed by wealthy organizations, powerful groups, and popular coalitions. Democracy is not synonymous with freedom, which the Founders well knew. That’s why the Bill of Rights prevents the mob’s representatives from limiting certain rights that all members of a free society must possess.

    The idiocracy doesn’t always vote in its own best interest. Ignorant voters listen to their church leaders, to celebrities, to the media, and to the imagined voices of their ancestors — rather than to their brains (if they have any). If we’re so afraid that campaign financing will influence the unthinking electorate, we ought to be doing what we can to better educate voters, not to limit their access to bullshit.

    There’s nothing sham about our democracy. It works all too well. But there’s definitely something sham about our alleged rights, and our democracy is often to blame. I’m for expanding those rights, not limiting them even further.

    The Monied Class, from which most of the Founders didst Spring, doth indeed have an Inordinate amount of Power, here in the New World as Elsewhere. However, whereas Wealth doth always Strive to Propagate itself at the expense of other Interests; and inasmuch as the Commonality do not Poffeff e’en a Small Portion of the riches of the more Fortunate; the Beauty of our Governmental System is that — at least on Parchment — we all Share in certain Unalienable Rights. I’m very Uncomfortable about Limiting those Rights, because, ultimately, it will not be the Prosperous who shall suffer. It will be Thee and Me.

  12. Linwood said

    I agree that a democracy, to function as intended, requires an informed citizenry. But Democracy is supposed to have something to do with the will of ‘the people’, something about elected officials representing ‘the people’, one (wo)man, one vote. When votes are for sale, it clearly undermines these fundamental tennets.

  13. Linwood:
    Well, now you’re talking from the philosophical ivory tower. On a practical level, each American citizen gets a vote. Whether or not that vote is intelligently cast, decided by throwing the I Ching, or bought by the highest bidder is immaterial to the concept of democracy. Remember: the Founders knew that the ignorcracy was not dependable. In their day, votes could be purchased for a couple of glasses of beer — and often were. Today, corrupt ballot-buyers have to spend millions. Maybe that’s progress.

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