The Red-faced Warbler

Free speech and expensive speech

Roberts, Alito, Thomas, Kennedy, and Sclalia. Get used to this bunch. The'll be making all the decisions from now on. Per their habit, the Supreme court conservatives interpreted the Constitution differently than the liberals yesterday. And, as usual, it’s in a way that seems to dampen democracy. Yesterday's decision was that a Vermont law that limited campaign spending unconstitutionally restricted freedom of speech. This supports and expands the fundamental finding of an earlier case (Buckley v. Valeo), which stands for the principle that the government cannot limit by law how much someone may spend in a campaign. The logic is that spending money is necessary to speak, so limiting the amount of money spent will limit speech. There is more to this idea than is immediately apparent, but ultimately it fails.

Of all the types of speech protected by the first amendment, the most important is - and ought to be - political speech. Political speech is the essential ingredient of democracy: the exchange of political ideas and information upon which the electorate can judge candidates and policies. Political speech has long been considered a specially protected class of speech, and this makes the Vermont law is potentially problematic.

But the Vermont law does not truly impede free speech. There are three important points to make about this.

First, the spending caps are not content based. Inhibiting certain ideas (like the image of a burning flag, e.g., or the policy of drug legalization) is clearly a ruinous path that the Constitution does not (yet) allow. This law does not do this. Even if a candidate reaches his or her spending limit, he or she can still talk about anything he or she wants. The government of Vermont cannot prefer one candidate to another or apply the law selectively based upon what is being said.

Second, the proposed law does not actually limit what the candidates can say or where or how long they say it. It is a cap on spending, not on speech itself. Given the platform, the candidate can continue to be quoted in the press and continue to shout from the rooftops.

Of course, freedom of speech implies more than the absence of a hand over one's mouth. Clearly, freedom of speech would be useless if the government could control the ability of others to hear it. Certainly, we do not want to allow governments to have access to a mute button. Is capping someone's spending akin to using a mute button? No, it’s volume control.

Certainly, the more money you spend, the more people will "hear" you. But the volume of speech isn't the same as speech itself. Imagine a city park in which two candidates are bellowing into bullhorns. Who will be heard? The one with the biggest bullhorn. And thus, candidates become locked into an arms race for the best means of amplifying their speech, until they are drowning out all others. Certainly, for their own peace of mind, the community has a right to tell them to keep the noise below a certain level, even if that means fewer people will "hear" them. By doing so, too, the community allows other voices to be heard, voices that don't have such powerful megaphones. As I see it, that's what the Vermont law does - decrease the size of bullhorns. Having freedom of speech has never implied freedom to drown others out. This is why airwaves with finite bandwidths are parsed and allocated by the government. If done in a fair way, limiting speech volume actually allows more speech.

But there is a third, more fundamentally disturbing issue here for democracy. In this sense, the Vermont law is actually a boon to free speech. The Supreme Court here ignores the problematic effects of income inequality. If we truly regard money as speech, we are acknowledging a system where some people have more ("free") speech than others. Is this democracy? In the market of goods and services, capitalism assumes that the more you want or need something, the more you’ll pay for it. The more something is desired, the higher its price. Thus the cost of something is a measure of its value to the buyer, ostensibly allowing goods and services to be allocated where most wanted. As we know, this isn’t actually the result; the cost of something to you is always relative to your wealth.

So, is this how we should allocate speech? The more you want to speak, the more you’ll spend; thus, in a world of finite ears for each message, those who spend the most should obtain access to the most ears. Is it contrary to the First Amendment to spread speech around to those without money? Are poor people simply less interested in exercising their rights to free speech?

I say no. Just as poll taxes prevent the democratic process, so does tying speech to wealth. For the very reason that political speech is a special class of speech protected from government meddling, it should also be protected from the vagaries of the market and the monopolization of the rich. Free speech must not give way to fee speech.

Of course, that's not the way the Supreme Court's new majority sees it.

posted by Warbler @ 9:23 AM