The Citizens United Decision: Speech is Speech Regardless of the Speaker
Yesterday's Supreme Court decision in Citizens United v. FEC essentially stands for the proposition that free speech is free speech regardless of the speaker. The 5-4 majority for the Court ruled that "We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion." (at 25) Echoing its early decision in Bellotti, the Court noted that "Political speech is 'indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.'" (at 33) "All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker's ideas." (at 35) "There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations." (at 37)
Somehow this has proven controversial, even radical, to some. But, as George Will correctly notes, "This was radical only because after nearly four decades of such 'reform' the First Amendment has come to seem radical. Which, indeed, it is. The Supreme Court on Thursday restored First Amendment protection to the core speech that it was designed to protect -- political speech." Essentially, the decision gets Congress out of the game of picking who, or what platform, deserves full First Amendment protection when it comes to uttering political speech. And there's nothing radical about that.
Indeed, as Justice Kennedy noted for the majority, there is nothing surprising about this reasoning once you realize that almost every other type legislative or regulatory speech restriction has been struck down as a violation of the First Amendment. "The law before us is an outright ban [on political speech], backed by criminal sanctions," Kennedy noted (at 20). "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." (at 33) Think about this for a second: Criminal sanctions or jail time for political speech! How in the world did we get to the point in this nation where criminalizing political speech became acceptable to our legislators? Ignoring the obvious answer--it's all about protecting incumbents--what is really "radical" here is not that the Supreme Court setting us back on the right path, but that our legislative branch has veered so far off of it.
many people hate this profusion, and never more than when it involves political speech. The current media market, they charge, doesn't represent true diversity, or isn't fair, or is subject to manipulation by a small and shrinking group of media barons. They want the government to regulate it into better shape, which just happens to be a shape that benefits them. Doing so... would be a disaster, a kind of soft or not-so-soft tyranny that would wipe out whole sectors of media, curtailing free speech and impoverishing our democracy.
In other words, instead of celebrating the unprecedented cornucopia of media choices at our collective disposal, many policymakers and media critics are calling for just as much media regulation as ever. We itemize these threats in our chapters and they include: efforts to revive the "Fairness Doctrine", media ownership regulations, "localism" requirements, Net neutrality mandates, a la carte regulations, cable and satellite censorship, video game censorship, regulation of social networking sites, campaign finance-related speech restrictions, and so on.
In each case, we advance a pro-freedom paradigm to counter the advocates of media control. What do we mean by the "media freedom" that we advocate as the alternative to these new regulatory crusades? Here's how we put it in the book:
Tim Wu on Obama, McCain, and "a Chicken in Every Pot"
Writing at Slate, Tim Wu tries to make Obama out to be the real Big Government candidate on media policy, who will deliver "if not a chicken in every pot, a fiber-optic cable in every home." By contrast, Wu implies that McCain is just another pro-big business lackey who doesn't understand "that the media and information industries are special--that like the transportation, energy, or financial industries, they are deeply entwined with the public interest." Wu goes on to say:
Ultimately, most of the difference in Obama's and McCain's media policies boils down to questions about whether the media is special and a dispute over how much to trust the private sector. Camp McCain would tend to leave the private sector alone, with faith that it will deliver to most Americans what they want and deserve. The Obama camp would probably administer a more frequent kick in the pants, in the belief that good behavior just isn't always natural.
First, as a factual matter, Wu is just wrong about McCain being some sort of a radical hands-off, pro-market liberalizer on media policy issues. Oh, if only that were true! But for those of us who have been in DC covering telecom and media policy for many years, it is widely understood there is no nailing down John McCain on any tech, telecom or media policy issue. He's been all over the board. While he has sponsored or supported some deregulatory initiatives on the telecom front in the past, he's also been a supporter of other regulatory causes. His battles with broadcasters and cable, for example, are well-known. Most recently, McCain has been leading the effort to impose a la carte mandates on cable and satellite operators.
Last week on the Google Public Policy Blog, Peter Greenberger of Google's Elections and Issue Advocacy Team posted Google's new guidelines for political advertising on the site. Most of the guidelines seem fairly straightforward and sensible to me since they relate to general principles of fairness and transparency. But sandwiched in between those principles is the following guideline:
No attacks on an individual's personal life. Stating disagreement with or campaigning against a candidate for public office, a political party, or public administration is generally permissible. However, political ads must not include accusations or attacks relating to an individual's personal life, nor can they advocate against a protected group. So, "Crime rates are up under Police Commissioner Gordon" is okay, but "Police Commissioner Gordon had an affair" is not.
I understand what Google is trying to do here in terms of making the Net a more civil place to engage in deliberative democracy without all the mud-slinging and name-calling. In one sense, I applaud them for that. On the other hand, the world is not a perfect place and candidates are not perfect people. And, candidates for office are not just like any other citizen in our society. They are people who will be given power over other people. Power over our lives, our liberties and fate of the nation.
A few weeks ago I was discussing "Campaign Finance Laws in the You Tube Age" and was wondering aloud whether current campaign finance regulations were sustainable in an age of user-generated content and viral videos. The Washington Postponders that same question today in highlighting the impact of clever mock campaign ad mash-ups like this one about "Big Sister" Hillary Clinton, which already has roughly 1.5 million hits:
The Post story notes that "this ad's reach really blows up any notion that candidates and mainstream media outlets can control the campaign dialogue. Especially online." That's exactly right, but they don't go on to ask the next logical question about how Congress and the FEC are going to deal with the growing flood of online campaign ads and commentary during coming election cycles. Remember, stuff like this can be regulated when aired on traditional television and radio outlets in the days leading up to an election. I just don't see how current campaign finance regs and the Internet can co-exist in the long run. There's just no way regulators are going to be able to keep pace with all the activity out there.
Last week I was a guest on a Seattle radio station (KVI 570) program hosted by conservative talk show host Kirby Wilbur. He invited me on to talk about various First Amendment issues including efforts to regulate video games. Like many radio hosts I've dealt with in the past, he was very sympathetic to my free speech leanings. But Kirby Wilbur has another good reason to love the First Amendment: It's the only thing he has to rely on in his fight against our nation's absolutely absurd campaign finance laws.
Here's Kirby's story. Back in 2005, Mr. Wilbur and his KVI colleague John Carlson had the audacity to speak their minds about a ballot initiative pending in their home state of Washington. The ballot initiative was an effort to repeal the state's recent gas tax increase. Proponents of the tax (mostly municipal government officials) were none too happy to hear people speaking their minds about the issue on a talk radio show. So, they decided to file a lawsuit demanding that the grassroots "No New Gas Tax" organization that had mobilized to fight the tax actually disclose the value of the hosts' radio advocacy as an "in-kind campaign contribution"! And, amazingly, they got a judge to agree with them!!
Is This Where America's Campaign Finance Laws Are Heading?
As I've written before, America's increasingly heavy-handed, anti-free speech campaign finance laws threaten to eventually ensnare the entire Internet and our new innovative, bottom-up world of organic "we-dia" (WE-MEDIA). Blogs are already in their crosshairs and lawmakers will be targeting other technologies of freedom in coming years.
Want to know where we might be headed? Look at Singapore. They've got a long history of stifling political speech and now their drawing up a blueprint to quash dissent via alternative digital outlets.
Lee Boon Yang, Minister for Communications, Information and the Arts (and you thought the FCC was bad!) recently said that "Anyone, anywhere can blog anything, anyhow. We have adopted a light touch approach in dealing with the everyday use of the Internet." Well, that sounds encouraging, but then... "However, during the election period when such free-for-all may result in undesirable situations, we cannot take a completely hands-off approach," he said. "We will review our policies on the Internet and new media during the election period bearing in mind the changes taking place."
According to this AFP story, Singapore has already been criticized by human rights groups and opposition parties for placing restrictions on political discussions on the Internet. The rules apparently already ban the use of use of podcasts and videocasts for advertising during elections.
Whether or not this all works remains to be seen. It's one thing to regulate the signals being beamed out from a big broadcast tower. (After all, it's pretty easy to find those towers and their programmers). Internet "broadcasters" are another matter, however, and enforcement will become a nightmare for the regulators as more and more people get online.
But that doesn't mean the regulators won't give it their best shot. And while lawmakers here in the States have given blogs and the Internet a reprieve for now, you'd be fooling yourself to believe that that's the end of the story. Regulation expands. Always and everywhere.
Last night a majority of the House did vote for the online speech legislation, however when a bill is considered on the suspension calendar it requires a two-thirds vote. Alas, it failed to achieve a supermajority. The story is here.
I'm always amazed when politicians are willing to take a public stand that assures less information, less involvement and fewer resources devoted to politics. I shouldn't be. Randy rightly notes below their interest is creating barriers to entry in the political marketplace. Fortunately, the bill's supporters vow to bring it back before rules are drafted at the FEC to clamp down on Internet-based political speech.
Blogging & Campaign Finance Law: A Simple (Probably Too Simple!) Solution
I want to say a few words about this debate over the application of campaign finance regulations to the Internet and Web blogs in particular, but let me just start by admitting that I'm not an expert on campaign finance law. In fact, I am utterly mystified by this entire body of law, not only in terms of its sheer complexity, but also in terms of what it sometimes hopes to accomplish.
I understand that (at least in theory) the laws are suppose to eliminate "corruption" from our political process. But is it just me or is it not that case that campaign finance laws continue to get more complicated while the political process remains just about as "corrupt" as it has always been?
Well, maybe I'm just a cynic about the political process in general. So, let me instead just focus on all this from the perspective of a guy who cares about new media. The current batch of campaign finance regulations is really geared toward broadcasting and broadcast television in particular. But, as of late, the folks down at the Federal Election Commission (FEC) have discovered this thing called the Internet and this new craze called blogging just might have a little impact on the future of media in this country and, therefore, by extension, our political process.