Free Speech and Free Counter-speech. Our First Amendment Rights

When the Supreme Court in Citizens United held that all corporations -- profit, non-profit and ecclesiastical -- had the First Amendment right to use their corporate funds to voice and "broadcast" their political and economic ideas (as The New York Times or The Washington Post do on a daily basis), the court was vilified.

The essence of Citizens United was that your right to "speak" necessarily assumes that someone who disagrees with you has the right to engage in "counter-speech."

When I was a law student, one of my professors said, "A nation teaming with a myriad of competing entities, large and small, each espousing and pursuing its own competing interest, must of necessity remain free and democratic. The totalitarian state can brook no dissenting entities."

His remark was reminiscent of what the great Justice Oliver Holmes said in Abrams v. U.S. "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.

"To allow opposition by speech seems to indicate that you think the speech impotent …

"But when men have realized that time has upset many fighting faiths, they may come to believe ... that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market ….

"That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.

"Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

So what is happening in our modern "free marketplace of ideas?"

When I was a boy, living in a Chicago suburb, Chicago had four major newspapers: the Chicago Tribune, the Sun Times, the Daily News and the Herald American. They spoke with very different voices. The Tribune was staunchly conservative. The Sun Times was pro-Democrat, but independent of Chicago political control. The Daily News was scholarly and literary. The Herald American was something right out of Ben Hecht's play, the"Front Page."

Today, only the Tribune and Sun Times survive.

Running parallel to the demise of many newspapers is the phenomenon of merger. In June 2000, the Tribune acquired the Los Angeles-based Times Mirror Company.

That merger added seven daily newspapers to the Tribune's chain, including the Los Angeles Times, the Baltimore Sun, the Hartford Courant, and the Long Island-based Newday. Additionally, the Tribune acquired TV stations in New York and LA to go along with WGN-Chicago.

As each independent newspaper, TV station or radio station died off, America lost one more independent purveyor of ideas. As media holding companies gobble up small media companies, "thought monopoly" tends to replace diverse and independent thought.

But what should be more worrisome is the emergence of the intolerant tyranny of "political correctness." Disfavored speakers are shouted down so their voices can't be heard. Riot, as at Berkeley, becomes the left's weapon of choice to suppress disfavored speech. The infallible apostles of the religion of "clean energy," hold that "error has no rights," and that any politician or corporation espousing contrary "heretical" views must be silenced -- denied any right of "counter-speech." What other way of thinking can justify the attempted assassination of Rep. Steve Scalise and his fellow baseball-practicing Republican Congressmen because their politics was objectionable to the shooter?

When I was a boy, that's exactly the way things were in the USSR. All newspapers and media were a monopoly of the Communist Party and the Soviet State. All Soviet "truth" came from Pravda, or other state-controlled media. There was no marketplace of ideas.

Dissent was punishable with a one-way ticket to Siberia. Ancient history? How is counter speech being tolerated in Venezuela today?

The choice is yours: a free marketplace of ideas, or totalitarianism.

Posted: QCOline.com July 16, 2017
Copyright 2017, John Donald O'Shea

Forget the Spin - What Citizens United Ruling Really Says

Since Citizens United v. The FCC was decided by the U. S. Supreme Court in 2010, every "liberal" that I have heard speak of the decision has expressed a visceral hatred for the case.

They use words like "infamous" or "deplorable" to describe the holding. Indeed, President Obama led the charge during his 2010 State of the Union Address, "Last week, the Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign companies -- to spend without limit in our elections.:

In Citizen's United, the court considered the constitutionality of a section of the Bipartisan Campaign Reform Act of 2002 that prohibited "corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an 'electioneering communication' or for speech expressly advocating the election or defeat of a candidate."

The main issue in Citizens United was, can Congress, consistently with the First Amendment, bar corporations (and unions) from engaging in political speech ("electioneering communications" or "speech expressly advocating the election or defeat of a candidate"). Note: Citizens United did not involve "campaign contributions" made to a candidate.

What also must be understood is the decision was not the source of political action committees. They were creatures of the BCRA.

In the words of the court, under BCRAL:

"Corporations and unions are barred from using their general treasury funds for express advocacy or electioneering communications. They may establish, however, a '"separate segregated fund' (known as a political action committee) for these purposes. The moneys received by the segregated fund are limited to donations from stockholders and employees of the corporation or, in the case of unions, members of the union."

Citizens United was a nonprofit corporation. In January 2008, it released a film entitled "Hillary: The Movie." Hilary was a 90-minute documentary about then-Sen. Hillary Clinton, who was a candidate in the Democratic Party's 2008 presidential primarys. It was released in theaters and on DVD, but Citizens United wanted to increase distribution by making it available through video on-demand. Citizens United sued the FCC to void the ban on "independent expenditures" by a corporation under Section 441, as violative of the First Amendment. The Supreme Court's starting point in striking down Section 441, was the First Amendment: "Congress shall make no law ... abridging the freedom of speech."

Justice Anthony Kennedy on behalf of the majority wrote:

"The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations -- including nonprofit advocacy corporations -- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election.

"Thus, the following acts would all be felonies under (section) 441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship."

And he might have added NARAL could not expend its funds to endorse pro-choice candidates.

Freedom of speech can be exercised by an individual acting alone. But it also can be exercised by two or more individuals acting together. Indeed the same First Amendment which says "Congress shall make no law... abridging the freedom of speech" recognizes that, when it goes on to say "or of the press, or the right of the people to peaceably to assemble, and petition the Government for a redress of grievances."

People peaceably assemble or associate in many ways. They form political parties. They form partnerships, voluntary associations, corporations, labor unions and churches (some of which are corporations). The First Amendment does not say, "Congress shall make NO law ... abridging the freedom of speech, except in the case of partnerships, voluntary associations, corporations, labor unions and churches."

If a group of people comprising a union has a right to lobby the government to force corporations to pay a higher minimum wage, another group of people who have formed a business corporation, and who will be forced to pay a higher minimum wage, surely has a co-relative right to lobby the government to leave the minimum wage alone.

This is what Justice Kennedy means when he says, "We find no basis (consistently with the First Amendment) for the proposition that, in the context of political speech, the Government may impose restrictionson certain disfavored speakers. Both history and logic lead us to this conclusion."

It is hard to summarize an opinion that runs 57 pages in 800 words. But Citizens United should be read by all Americans. I think you'll like it. (supremecourt.gov/opinions/09pdf/08-205.pdf).


Posted Online:  May 07, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea