Free Speech Survives – With No Help from Liberals

As George Santayana wrote, the only bond that a modern liberal wants to loosen is the marriage bond. Certainly, liberals’ enthusiasm for freedom of speech and the press has diminished greatly since the days when they incessantly repeated the (made-up) Voltairean maxim about “defending to the death your right to say it”. Nowadays, unregulated speech, unless liberals agree with what it says, is portrayed as a menace.

Today all four of the Supreme Court’s “liberals” voted, in Federal Election Commission v. Wisconsin Right to Life Inc., in favor of the government’s power to prohibit organizations from urging individuals to contact their Senators about particular issues during the 60 days before an election. Thus they regarded three of the five First Amendment liberties (speech, press, petition) as subordinate to the need to restrict what Justice Souter calls “corrosive spending”. Fortunately, the “liberals” are still a minority on the Court. (Unfortunately, only a minority of the “conservatives” were bold enough to vote for striking down the McCain-Feingold monster.)

What the “living Constitution” will accommodate, should the minority gain another vote, is foreshadowed by the policies that progressive think tanks and Left-controlled governments advocate or try to enact today.

The Center for American Progress, for instance, urges changes in the rules governing broadcasting, with the explicit aim of shutting up right-wing talk radio. The CAP wants the government to establish “clear public interest requirements for broadcasting” and levy penalty taxes on stations that don’t measure up. It also toys with reviving the “Fairness Doctrine”, though an implication of its “findings” is that that form of censorship didn’t go far enough.

In Oakland, California, as George Will reports, the local government, with the backing of the Loony Left 9th Circuit Court of Appeals (Good News Employee Association v. Hicks), has made agreement with its policy preferences the sine qua non for Free Speech rights:

Some African American Christian women working for Oakland’s government organized the Good News Employee Association (GNEA), which they announced with a flier describing their group as “a forum for people of Faith to express their views on the contemporary issues of the day. With respect for the Natural Family, Marriage and Family Values.”

The flier was distributed after other employees’ groups, including those advocating gay rights, had advertised their political views and activities on the city’s e-mail system and bulletin board. When the GNEA asked for equal opportunity to communicate by that system and that board, it was denied. Furthermore, the flier they posted was taken down and destroyed by city officials, who declared it “homophobic” and disruptive.

The city government said the flier was “determined” to promote harassment based on sexual orientation. The city warned that the flier and communications like it could result in disciplinary action “up to and including termination.”

Effectively, the city has proscribed any speech that even one person might say questioned the gay rights agenda and therefore created what that person felt was a “hostile” environment. This, even though gay rights advocates used the city’s communication system to advertise “Happy Coming Out Day.” Yet the terms “natural family,” “marriage” and “family values” are considered intolerably inflammatory.

The treatment of the GNEA illustrates one technique by which America’s growing ranks of self-appointed speech police expand their reach: They wait until groups they disagree with, such as the GNEA, are provoked to respond to them in public debates, then they persecute them for annoying those to whom they are responding. . . .

The flier supposedly violated the city regulation prohibiting “discrimination and/or harassment based on sexual orientation.” The only cited disruption was one lesbian’s complaint that the flier made her feel “targeted” and “excluded.” So anyone has the power to be a censor just by saying someone’s speech has hurt his or her feelings.

Unless the speech is “progressive.” If the GNEA claimed it felt “excluded” by advocacy of the gay rights agenda, would that advocacy have been suppressed? Of course not – although the GNEA’s members could plausibly argue that the city’s speech police have created a “hostile” environment against them.

To be fair, let me note that the Left remains devoted to shriveled relics of First Amendment piety. Also today, in Morse v. Frederick, three of the four Supreme Court “liberals” declared that, while it’s fine for the government to censor debate on public issues during an election campaign, a school principal has no right to suspend a student for unfurling a banner proclaiming “Bong Hits 4 Jesus” at a school-sanctioned event.

One can argue, of course, that the Court’s “conservatives”, who favored the principal’s position, were inconsistent, too, and perhaps they were. Almost no one achieves inarguable doctrinal purity on First Amendment questions. The two sets of inconsistencies are not, however, comparable. The “conservatives” allow an advertisement criticizing a particular legislative proposal and urging citizens to call or write their Senators about it, and ban the display of a nonsensical slogan with no intellectual or argumentative content. The “liberals” take the opposite stance. One view sees the First Amendment as protecting vigorous political debate; the other trivializes it into a license for uninhibited self-expression. It isn’t hard to figure out which is more in line with sound constitutional government.

Let me call attention once more to the Left’s free speech hierarchy. It shows no sign of changing.

Comments

[Peter Hodges]

“Waite’s dictum (merely an extrapolation from the Darmouth College case
(1819), which held that the Contracts Clause protects corporations) had, of
course, no precedential value. The reason why judges have universally
adopted his view is that it is the only one that makes sense.”

The Contracts Clause applies to the States, not to the Federal government.
At the time of the Dartmouth decision, there was no Fourteenth Amendment to
consider, however, its equal protection clause also applies only to the
States.

Corporations are not defined as persons by the Consitution and the Federal
government most certainly has the power to regulate corporations. At best,
the Constitution, as demonstrated by Dartmouth, protects corporations from
State interference with their obligations.

There is nothing in the Constitution barring Congress from limiting the
behavior, including the political speech, of corporations.

“The modern corporation didn’t exist in 1776. Among other differences, the
grant of a corporate charter was generally believed to convey monopoly
rights”

As Adam Smith observed, "To widen the market and to narrow the competition
is always the interest of the dealer." The natural tendency of
corporations is to seek monopoly, whether granted by the crown or secured
through market competition or collusion. There is nothing in the
composition of the modern corporation that was not understood by the
Founders.

“Individuals have the full array of Constitutional rights. Does Mr. Hodges
think that they are “uncontrollable” or that the extent of their liberty is
a bad idea?”

I think it is certainly worth questioning whether or not corporations should
be considered “persons” under the Constitution. Your "extrapolation" from
Dartmouth makes the unlikely assumption that Constitutional barriers
against State regulation would follow to the Federal government. I do not
believe that was the understanding of the Founders or of those who passed
the Fourteenth Amendment.

pbh

[Paul Zrimsek]

As a compromise in the spirit of Jefferson and Madison (I mean Madison before he decided that the Bank of the US was OK after all) I suggest that we count a corporation as three-fifths of a person.

[Tom Veal]

The notion that Chief Justice Waite sneaked corporate personhood into Constitutional law is a liberal urban legend. He did indeed write a preface to Justice Harlan’s opinion in Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 (1886), in which he stated that the Court would not consider –

whether the provisions in the Fourteenth Amendment to the Constitution which forbade a state to deny any person within its jurisdiction the equal protection of the Constitution, applied to these corporations. We are all of the opinion that it does. [id. at 396]

The evident motive for that statement was the fact that counsel for the parties had centered their arguments on the Constitutional issue. The Court instead decided the case on a narrow point of statutory interpretation.

Waite’s dictum (merely an extrapolation from the Darmouth College case (1819), which held that the Contracts Clause protects corporations) had, of course, no precedential value. The reason why judges have universally adopted his view is that it is the only one that makes sense. A corporation is simply a mechanism by which natural persons pool their resources to carry on an enterprise. Limiting its First, Fifth and Fourteenth Amendment rights and protections abridges those of its owners. That fact is particularly clear in this case. Wisconsin Right to Life, Inc. is incorporated, but its raison d’être is to advocate its members’ positions on matters of public policy. Silencing it silences them.

Let me add that Mr. Hodges’s idea that “The Founders, most significantly Madison and Jefferson, feared and abhorred corporate power and their participation in the Revolution was predicated on their opposition to the corporate corruption of the British Crown” is delightfully anachronistic. The modern corporation didn’t exist in 1776. Among other differences, the grant of a corporate charter was generally believed to convey monopoly rights, a position not thoroughly expunged from American law until Charles River Bridge v. Warren Bridge (1837). There was good reason to object to government-guaranteed monopolies, then and now.

And, as every student of history knows, Jefferson and Madison opposed the First Bank of the United States because they denied that Congress possessed the power to establish a bank, not out of a generalized dread of “corporate power”.

Finally, I can’t help but wonder at “By implication, the decision in Wisconsin Right to Life Inc. suggests that the Roberts’ [sic] Court is prepared to extend the rights of corporations to such an extent that they will be literally uncontrollable by regulation, law or mandate.” Individuals have the full array of Constitutional rights. Does Mr. Hodges think that they are “uncontrollable” or that the extent of their liberty is a bad idea?

[Peter Hodges]

"you can't prove a point about What the Founders Believed by appealing to one side of a dispute between Founders."

Disputes between the Founders regarding the permissibility of corporations notwithstanding, the issue is whether or not Equal Protection should be extended to such entities.

Or, do you claim that Hamilton actually advocated that?

pbh

[Paul Zrimsek]

Never mind. I trust it will be obvious to everyone else-- even those who might otherwose succumb to your Argument from Insufficient Authority-- that you can't prove a point about What the Founders Believed by appealing to one side of a dispute between Founders.

[Peter Hodges]

"Hamilton is generally regarded as one of the Founders."

Who said he wasn't?

The fact that Madison and Jefferson miscomprehended Hamilton's purpose does not deny their actual concern for protections against corporate power.

Hamilton's status is not an issue. Your ability, or willingness, to analyze an argument evidently is.

pbh

[Paul Zrimsek]

I see that neither Mr. Hodges' wit nor his manners seem to have improved during his blessedly long absence.

Little clue: Hamilton is generally regarded as one of the Founders.

[Peter Hodges]

"all four of the Supreme Court’s “liberals” voted, in Federal Election Commission v. Wisconsin Right to Life Inc., in favor of the government’s power to prohibit organizations from urging individuals to contact their Senators about particular issues during the 60 days before an election."

In its decision, the Roberts' Court endorsed a view of corporate rights very much in line with the Waite Court of the Reconstruction era. That Court, not only recognized corporations as persons, but, in dicta to Santa Clara v Southern Pacific, extended Fourteenth Amendment protection to such corporate "persons".

This summation of the case, which was never argued in the case, was never argued prior to or after the case, which was never decided in any case ever, became the foundation not only for the theory of corporate personhood, but more significantly of the extension of equal protection to corporations.

The Founders, most significantly Madison and Jefferson, feared and abhorred corporate power and their participation in the Revolution was predicated on their opposition to the corporate corruption of the British Crown. When Hamilton proposed to incorporate a National Bank, Madison and Jefferson fought it so bitterly that they deserted Washington's government to establish the first opposition party in American politics.

In decision after decision, the Waite Court found on the side of protecting corporate rights over those of the Nation's citizens, municipalities, counties and States. The fourteenth amendment, which had been intended to protect the rights of former slaves, was perverted through slight of hand, to protect the rights of bodyless constructs which had less right to be considered "persons" under the Constitution than a foetus.

By implication, the decision in Wisconsin Right to Life Inc. suggests that the Roberts' Court is prepared to extend the rights of corporations to such an extent that they will be literally uncontrollable by regulation, law or mandate.

If you think this is merely a question of free speech then you are a fool.

pbh