The First Amendment: For Sale to the Highest Bidder?

by Steven Hill
This article was published in the Seattle Community Catalyst, November 1992

Our First Amendment fundamentalist tradition is a descendant of 19th century classical liberalism that preached free markets and laissez faire in the economic sphere, maximum individual liberty in the social and political realms, and limited government. As a result of this tradition, institutions like NBC, General Motors, and the National Rifle Association are treated as individuals and accorded the same First Amendment rights as a single mother or the homeless, even though they have far greater resource s with which to dominate the public debate. Thus, while proudly waving aloft the free speech banner, we watch our political system being bought out from under us. Effective speech in the modern age is not cheap.

But let us assume for a moment that, despite the unequal factors that twist the public debate, this is an acceptable price to pay so that all individuals and institutions, large and small, rich and poor, may have maximum liberty and free speech. Yet even operating under such an assumption, how do we explain that in the Supreme Court rulings of the past twenty years, case after case, the winner has been the well-to-do and the loser has been the grass roots? For instance, in 1984, Chief Justice William Re hnquist wrote the Court's decision striking down Congress's efforts to restrict campaign expenditures made by Political Action Committees (PACs), in Federal Election Commission v. National Conservative Political Action Committee (NCPAC). Rehnquist seemed to think he was being inordinately fair when he reminded us that the Court's decision applied equally to multi-million dollar PAC's as to "informal discussion groups that solicit neighborhood contributions to publicize their views."

This decision followed a consistent series of decisions by the Burger-Rehnquist Courts expanding the free speech rights of banks, private corporations and millionaires on the one hand, and restricting the free speech rights of the grass roots and the "lit tle people." During the past two decades the Court has: upheld the right of banks to spend money to influence the outcome of public referendums; sustained the right of millionaires to spend unlimited personal funds on their own elections while sharply l imiting the amount of campaign contributions to other candidates ("Thank God!" says Ross Perot; "Too bad" says Larry Agran); affirmed the right of utilities to include statements on issues of public policy with their monthly bills to their customers; stru ck down laws used to curb state regulation of commercial advertising; and invalidated a use tax imposed by the state of Minnesota on the cost of paper and ink products consumed in the production of a daily newspaper. The only deviation from this pattern was the Court's affirmation of a Michigan law prohibiting corporate spending in support of political candidates.

These decisions, widening the space for free speech of the rich and the powerful, are in stark contrast to others involving the exercise of "cheap speech" by those poorly financed causes of "little people." In these cases, the majority found ample justif ication for government restriction. For instance, the Burger Court held that shopping malls, despite having replaced public town squares as the new public arena, were private property and not subject to the First Amendment (since then, a few state courts have decided, under their own constitutions, that malls must accommodate free speech. Washington state isn't one of them). Also, the Burger-Rehnquist Courts have ruled: that the managers of a publicly operated state fair could limit the activities of religious solicitors to an assigned booth and bar them from the crowded midway; that homeless people could be prevented from conducting a symbolic sleep-in at the public park opposite the White House; that the federal government could prohibit the deposit of leaflets and circulars in the mailboxes of private homes; that the sidewalk in front of the post office could be placed off-limits to political solicitation; that the Fairness Doctrine did not have to be extended to include the print media, opening th e door to a repudiation of the Fairness Doctrine by the FCC; and that the Combined Federal Campaign, which facilitated charitable contributions by federal employees through payroll deductions, could exclude from participation advocacy groups such as the N .A.A.C.P. and the Sierra Club (a decision which was subsequently overturned by Congressional action).

In addition, the Court has also manipulated "time, place and manner" restrictions on certain types of communication, using as its primary justification the availability of alternative channels of communication for the intended message. In all of their de cisions, the Court's reasoning seems to indicate that the homeless and poorly financed are entitled, just like major corporations and wealthy individuals, to use their own private resources, however meager, to publish their own newspaper or set up their o wn PACs that can spend unlimited amounts on their lobbying efforts. Apparently, in the foot race of free speech, it doesn't matter if one or two of the runners have rockets on their feet, or if others are wearing concrete galoshes, as long as everybody b egins at the same starting line.

That, unfortunately, is the legacy of our fundamentalist free speech tradition. Free speech for the Haves, government restriction for the Have Nots. In looking at this consistent pattern, it is hard not to come to the conclusion that the purpose of the First Amendment is not to provide maximum free speech and liberty; no, the purpose is to keep the meddlesome government out of the affairs of the Haves, so that they may have a "level playing field" where they may play any way they wish, making up the rul es as they go, and not be pestered by the free speech activities of pesky activists trying to leaflet consumers inside their shopping malls.

This is a strange state of affairs: Individual rights, as presently conceived and adjudicated, have provided a convenient context for shooting down the free speech rights of the little people, and it's all done in the name of democracy and the Bill of Ri ghts. In case after case of the Burger-Rehnquist Courts over the past twenty years, capitalism has almost always won, and "We, the [average] People" have lost.

So why do liberal free speech advocates like the American Civil Liberties Union, Madonna, Bob Guccione, and Camille Paglia allow themselves to be accomplices to such a conservative canon? In the case of Madonna and Guccione the reason seems simple enough : money. They both make millions from shocking the public with their latest free speech devolutions and rebellions against mainstream sensibilities. Despite their support for a liberal social agenda, that for the past forty years has relied on extensiv e government intervention to achieve its goals for civil rights, low-income housing shortages, education and much more, when it comes to free speech Madonna's and Guccione's self interest push them in line with the conservative agenda. Of course, trumpet ing the wonder of self-interest is also part of the conservative agenda. Madonna and Guccione are best thought of as merchants-- one almost wants to say pimps-- of free speech: they sell it for their own profit.

Paglia, a newcomer, is riding along on the coattails of this wave, gaining rich reward for brazenly proclaiming what most closet sexists fear to say about feminists and gender relations lest they be accused of bigotry. Paglia combines a shallow understan ding of Freudian pop psychology, which was nearly drummed out of existence by feminist psychologists and scholars who protested Freud's treatment and characterization of women, with a flair for self-promotion and vicious personal philippic against her opp onents as a way of stifling debate-- odd practice for a free speech fundamentalist such as herself.

The case of the American Civil Liberties Union is more complex. The ACLU has championed some very progressive causes over the years: a woman's right to choose, the free speech of various dissidents, the voting rights of blacks, cessation of some forms o f discrimination against women including most recently the integration of women into the all-male Virginia Military Institute, and more. But the ACLU has also joined forces with some extreme right wing and backlash causes, filing friend-of-the court brie fs in the cases of white supremacists Tom Metzger and David Duke; conservative euthanasia opponents in Washington state; defendants in a Florida case of sexual harassment for hanging pornographic pictures and centerfolds in the workplace; child pornograph y cases; joined with conservative Congresspeople pushing for legislation barring codes restricting hate speech in public schools; and even threatened to sue a grass roots organization called Always Causing Legal Unrest who committed the heinous act of par odying the American Civil Liberties Union and daring to use the same four initials A-C-L-U. In considering the case of the American Civil Liberties Union, the word "naive" comes to mind; but how can that be true of an entire organization filled with so m any bright, talented, well meaning people?

To the detriment of minorities, women, labor and environmentalists, the ACLU is mired in a backward, conservative, even fundamentalist 19th century view of the First Amendment, apparently unaware of how philosophically consonant their view is with the lai ssez faire free market economic canon of deregulation and limited government espoused by free marketeers like George Bush and Dan Quayle. Perhaps, without further evidence, the most that can be said is that, like all fundamentalist groups, whether they a re Christian, free market, right-wing or left, the ACLU's blind allegiance to their free speech fundamentalism, is simply irrational.

This is not to say that the free market is eternally damned, only to recognize its limitations. The market might be splendid for some purposes but not for others. It might be an effective institution for delivering goods and services, but not effective f or producing the kind of debate that constantly renews a people's capacity for democratic self-determination. It is unwise to allow the First Amendment to be captured by our economic system, or to allow free speech to be compromised by our desire to prot ect private property.

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