From Glenn Greenwald’s first post on the recent SCOTUS ruling in Citizens United v. FEC which involved the free speech rights of corporations and unions. What the Supreme Court got right
I want to begin by examining several of the most common reactions among critics of this decision, none of which seems persuasive to me. Critics emphasize that the Court’s ruling will produce very bad outcomes: primarily that it will severely exacerbate the problem of corporate influence in our democracy. Even if this is true, it’s not really relevant. Either the First Amendment allows these speech restrictions or it doesn’t. In general, a law that violates the Constitution can’t be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes).
The outcome argument is important simply because it is used so often, even if inadvertently. I happen to think based on the law that Roe v. Wade was a good decision. Not just because I liked the outcome, but because it was based on the implicit Constitutional guarantee of individuals having a right to privacy. In the original wording of the first Amendment, James Madison was going to use the term freedom of conscience rather than freedom of religion. Perhaps unfortunate that he did not. Opposition to Roe v Wade is based on the lack of particular explicit rights. For example, it does not say you have the right to build transmission towers, thus cell phones would be unconstitutional. Original-ism or Constitutional contextual-ism is not without merits, but it completely forgets the larger implications beyond the founders and their time. They did not no what an atom was much less about the electrons being transmitted over wires and through the air to create this post. This post would, in strict Originalist terms, not be covered by the 1st Amendment.
In a note addressing free speech is not property issue(i.e. money) Glenn writes,
“As Justice Stevens said in 2000, “money isn’t speech. It is property.” I find it hard to argue differently.”
( Beginning of Glenn’s reply)I don’t find these even plausible, let alone persuasive. Anyone who believes that would have to say that there’s no First Amendment problem with any law that restricts the spending of money for political purposes, such as:
“It shall be illegal for anyone to spend money to criticize laws enacted by the Congress; all citizens shall still be free to express their views on such laws, provided no money is spent;” or
“It shall be illegal for anyone to spend money advocating Constitutional rights for accused terrorists; all citizens shall still be free to express their views on such matters, provided no money is spent”; or
“It shall be illegal for anyone to spend money promoting a candidate not registered with either the Democratic or Republican Party; all citizens shall still be free to advocate for such candidates, provided no money is spent.”
Anyone who actually believes that “money is not speech” would have to believe that such laws are necessarily permitted by the First Amendment (since they merely restrict the expenditure of money, which is not speech).
This is a very gray area for me. Corporations get more free speech then you or I by virtue of their fortunes. They can buy commercial time, run multi-thousand dollar ads in slick magazines, buy radio ads etc. If you as an individual want to be heard you pretty much have to contribute to the ACLU, MoveOn or Planned Parenthood. Free speech in regards social issues and public policy has become a contest about who can rise the most money and buy time for their point of view. Thus its difficult to totally dismiss Justice Stevens entirely, speech and property have become so intertwined.
Both are worth a read.
If creative free speech is inspiration for a crime should we ban certain TV shows, How ‘SVU’ Predicts the Future
A man is arrested for breaking into a woman’s home and raping her. His defense? He simply answered an online ad—he says the woman who posted it was soliciting a rape fantasy. But here’s the twist: the woman says the ad wasn’t hers. And when the police investigate, they find it was the woman’s ex-boyfriend who posted the ad as an act of vengeance against her.
This actually happened last year—twice, in fact. Once in real life, last month in the small town of Casper, Wyoming. And once seven months prior to that, on my NBC show, Law & Order: Special Victims Unit.
As one of our TV detectives on SVU might ask, are the two crimes connected? Were these two nearly identical incidents simply coincidence—or did the episode, in fact, give the real criminal the idea?
Were two nearly identical crimes simply coincidence—or did the episode of SVU give the real criminal the idea?
We often grapple with this question at SVU, and we take seriously the implications of the stories we tell. Not only are some of our stories “ripped from the headlines,” but at times we’ve seen headlines that appear to be ripped from our show. A crime like the one in Wyoming appears eerily similar to the one that aired seven months earlier on SVU. But I would argue it’s highly questionable that our show inspired someone to commit a crime.