WFT? #321

I haven't posted anything here for quite a while (owing to a number of reasons that have naught to do with this post), but the Supreme Court ruling in Citizens United v. Federal Election Commission demands comment.

“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, which included the four members of its conservative wing, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Subtle wording there: "citizens or associations of citizens." That "associations" presents the thin edge that can be used to open the argument for free speech being guaranteed to, say, labor unions just as much as it is to, for example, the HRC. Fine. Considering that the same first amendment also stipulates that the Congress shall make no law "prohibiting the free exercise ... of the right of the people to peaceably assemble, and to petition the government for a redress of grievances," the extension of the right to free speech to those peaceable assemblages of people is a reasonable extrapolation.

If one is willing to accept the assertion that a corporation or any business is an assemblage of citizens in the same sense as, say, a political action group or a committee of individuals circulating a petition or carrying signs in a protest march (and I'm by no means in agreement with any assertion that they are fundamentally the same thing), then one would need to grant the same rights to all such groups. I would argue that a business the principle purpose of which is financial profit is not in part or at all in the same class as a corporation that has as its fundamental goal the performance of some social service or achievement of some social or political change; the latter can, I believe, be said to share in the rights of the individual citizens from whom it is composed and by whom it is supported, while the former can not. The law already acknowledges their difference and makes any number of distinctions between for-profit and not-for-profit corporate entities (e.g. the tax exempt status granted to qualifying NPOs). Abundant precedent exists to establish the distinction between these two classes of "associations of citizens."

My general argument would be that such a distinction indicates that for-profit corporations cannot be said to fall within the scope of the first amendment guarantees referred to in Kennedy's statement on the ruling.

My direct response to the ruling, however, is more specific. Let us allow, for the moment, that the above distinction between types of corporations does not in itself entail their being treated differently as regards freedom of speech rights under the first amendment. Does free speech intrinsically and unequivocally apply to the actual exchange of funds in direct or indirect association with, and thus potentially contingent upon, some return in kind, in either service or goods? I maintain that it does not in all cases.

Completely crass example: I can say to the bartender that I'd like to fuck that woman sitting at the far end of the bar; that's free speech. I can even say it directly to the woman, at least once; the first time I say it could be defended as free speech, while the forth time I say it can be defined as harassment. I could even shout aloud to all those present in the bar that I'd like to fuck this woman. All potentially defensible as freedom of speech. Now add money to the picture. If I buy her a drink, after which she agrees to have sex with me, that's one thing. If I hand her $100, after which she agrees to have sex with me, that's another thing entirely under law. Accepting the drink, presumably in exchange for sex, makes her a slut; accepting cash, again presumably in exchange for sex, makes her a criminal. (Let's skip the knotty question of exactly how and whether or not prostitution is a crime; under current law in most of the US it is.) More: my success in trading cash for sex makes me a criminal. If I ask the bartender to serve her that drink, for which I'm paying, and he does, the bartender is only doing his job, regardless of whether the woman and I have sex as a direct or indirect result. If, however, I ask him to tell her I'll give her $100 if she has sex with me, and he does, and she does, it could be argued that he's complicit in what is regarded as a crime. More: if he for some foolish reason agrees to carry the five twenties I hand him down the length of the bar and hand them to the woman, telling her the money is from me and I want to fuck her, it might well be asserted that he is himself committing a crime. When he serves her a drink at my request, and tells her its from me, he's merely being a lobbyist; when he passes her my cash in exchange for persuading her to have sex with me, he's being a pimp, whether he makes an immediate direct cash profit out of the activity or not.

Not a perfect analogy, of course, but I expect you get my point. Campaign donations are far too direct a method of potential persuasion to be considered something protected under the first amendment's guarantees of freedom of speech in all cases.

If nothing else, there's a matter of scale involved in the difference between my individual campaign contribution and one on a corporate scale. If I offer that woman the $2.17 I have in pocket change and she has sex with me, the assertion that I've just paid for sex is debatable (maybe she found the idea laughable, and we end up having sex because she find me amusing); if the dollar amount is suddenly $217.00, however, the same assertion becomes much more credible; zoom that figure up to $217,000.00 and the only question in most peoples' minds would be whether I'd got my money's worth.