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What Is Free Speech?
Friday, April 22nd, 2011
Robert Wechsler
In a
letter
to the editor in yesterday's New York Times, two lawyers who
represent clients seeking to gut Arizona's Citizens Clean Elections
public campaign financing program end by calling Arizona's program "a
vision of unconstitutional
dystopia, not free speech."
I administer the public campaign financing program in New Haven, CT. These programs are intended to prevent candidates from being seen to owe their election to special interests, including contractors and others doing business with government, as well as to prevent elected officials from actually feeling indebted to them. These goals are similar to the goals of government ethics laws. So let's try out what these gentlemen said by applying it to government ethics.
Is Government Ethics an Unconstitutional Dystopia of Limited Speech?
Government ethics programs are "a vision of unconstitutional dystopia, not free speech." What would that mean concretely? It could be seen as wrong that officials can't vote on a matter where they or someone close to them might benefit (arguments have been made that an official's vote constitutes "free speech"; see my blog posts on the Carrigan case). And it would be considered even worse that officials can't participate, can't even ask questions or make statements, on a matter where they have a conflict.
It could be seen as wrong that individuals can't give officials all the gifts they want to give, and officials can't demand such gifts as pay to play (gifts can be characterized as "free speech," too).
As for revolving door provisions, it could be seen as wrong that they prevent an official from resigning to lobby his own board or legislative body, which is relatively easy to characterize as "free speech" (see my post on the Brinkman decision). And then there are those arguably dystopic political activity provisions, that seek to limit officials from coercing "free speech" out of their subordinates.
And what about laws that limit the use of office, or candidacy for office, for commercial reasons, such as pushing one's national wrestling business, as a recent U.S. Senate candidate's husband wanted to do. He was quoted as saying, "I can’t think of a better way for WWE fans to celebrate their constitutional rights and freedom of expression."
In addition, open meeting laws also could be seen to restrict free speech, because speech arguably may be participated in in private as well as in public. Take e-mails among board members, for instance (see Rangra v. Brown, 566 F.3d 515 (5th Cir, 2009)).
And What About Transparency?
What is fascinating is that the same people crying out for "free speech" are not demanding that ethics proceedings be public or even that ethics complainants be allowed to disclose the fact that they have filed a complaint, the area in government ethics where First Amendment free speech comes up most often.
In short, if you care only about rights, and not about obligations, government ethics programs can also be portrayed as unconstitutional dystopias of limited speech.
What Is Free Speech?
Let's get back to public campaign financing. The real question is, What is "free speech"? Is it nothing more than what Congress cannot make a law abridging, as the First Amendment reads? No. Free speech is something more than this. Free speech is what citizens have and, in a society of equals, citizens have it equally. But government officials do not, as discussed in the following section.
Is this equality nothing more than equal opportunity? That is, if everyone is allowed, but very few are able, to spend $50,000 on a campaign contribution, is this still "free speech"? Did our founding fathers envision this sort of free speech? No. Free speech was the ability to talk and be heard, not on television, or on radio, but in print, which was plentiful and cheap, and at meetings and on the street.
Did our founding fathers envision corporations able to make huge donations and support independent expenditures? No. Corporations were few, and they were organized according to government laws that required obligations to the public far beyond those required today.
None of us has lived in the free speech world of our founding fathers. We live in a new world, where the only thing we have in common with the founding period is that a great deal of written communication is once again anonymous.
Yes, each of us can speak our minds on the Internet, but few of us have an audience. There is no sense of equal free speech except in those "dystopian" public campaign finance programs, where a small contribution can be meaningful, and no one can make a large one. Or so it would be if the enemies of public campaign financing had not opened the doors to independent and, soon, opposition expenditures without limit, that cannot be matched. These expenditures are made by people who do not really believe in "free speech" for anyone but them and their few financial equals, or they would be spending much of their wealth helping others to be heard.
We need to decide what we mean by "free speech" with respect to officials and candidates. Is it "free" in the sense of unhampered, or is it "free" in the sense of able to be heard? In other words, is the "free" more important than the "speech"?
Do we care anything about the free speech of those without financial resources? Does our society gain anything by helping to increase the number of candidates running, and the expression of their views in an electoral context?
Or put another way, does our society lose something by filling the airwaves with mean-spirited ads that contain little content of value to voters? Is there anything more dystopic than many of our elections today, where the selections of two huge, hateful parties slug it out, and the selections of other parties, not to mention independent candidates, cannot even get their messages across?
Rights vs. Obligations
The refrain in the Bill of Rights is "the right of the people." There is nothing about the rights of government officials or political candidates. In fact, the Constitution is more about the obligations of government officials, which is what political candidates seek to be. One could almost define "government official," constitutionally, as a citizen who has given up his or her rights in return for power and obligations.
An unconstitutional dystopia, therefore, would be a society in which government officials seek to have power but, in doing so, refuse their obligations and embrace their "rights." This is essentially what people are arguing for who seek to undermine conflict of interest laws, campaign finance laws, public campaign financing programs, and open meeting laws.
They, not the supporters of government ethics, are seeking to foist upon our nation a dystopia, constitutional or not, where "free speech" is extremely costly, in both senses of the word.
Robert Wechsler
Director of Research-Retired, City Ethics
---
I administer the public campaign financing program in New Haven, CT. These programs are intended to prevent candidates from being seen to owe their election to special interests, including contractors and others doing business with government, as well as to prevent elected officials from actually feeling indebted to them. These goals are similar to the goals of government ethics laws. So let's try out what these gentlemen said by applying it to government ethics.
Is Government Ethics an Unconstitutional Dystopia of Limited Speech?
Government ethics programs are "a vision of unconstitutional dystopia, not free speech." What would that mean concretely? It could be seen as wrong that officials can't vote on a matter where they or someone close to them might benefit (arguments have been made that an official's vote constitutes "free speech"; see my blog posts on the Carrigan case). And it would be considered even worse that officials can't participate, can't even ask questions or make statements, on a matter where they have a conflict.
It could be seen as wrong that individuals can't give officials all the gifts they want to give, and officials can't demand such gifts as pay to play (gifts can be characterized as "free speech," too).
As for revolving door provisions, it could be seen as wrong that they prevent an official from resigning to lobby his own board or legislative body, which is relatively easy to characterize as "free speech" (see my post on the Brinkman decision). And then there are those arguably dystopic political activity provisions, that seek to limit officials from coercing "free speech" out of their subordinates.
And what about laws that limit the use of office, or candidacy for office, for commercial reasons, such as pushing one's national wrestling business, as a recent U.S. Senate candidate's husband wanted to do. He was quoted as saying, "I can’t think of a better way for WWE fans to celebrate their constitutional rights and freedom of expression."
In addition, open meeting laws also could be seen to restrict free speech, because speech arguably may be participated in in private as well as in public. Take e-mails among board members, for instance (see Rangra v. Brown, 566 F.3d 515 (5th Cir, 2009)).
And What About Transparency?
What is fascinating is that the same people crying out for "free speech" are not demanding that ethics proceedings be public or even that ethics complainants be allowed to disclose the fact that they have filed a complaint, the area in government ethics where First Amendment free speech comes up most often.
In short, if you care only about rights, and not about obligations, government ethics programs can also be portrayed as unconstitutional dystopias of limited speech.
What Is Free Speech?
Let's get back to public campaign financing. The real question is, What is "free speech"? Is it nothing more than what Congress cannot make a law abridging, as the First Amendment reads? No. Free speech is something more than this. Free speech is what citizens have and, in a society of equals, citizens have it equally. But government officials do not, as discussed in the following section.
Is this equality nothing more than equal opportunity? That is, if everyone is allowed, but very few are able, to spend $50,000 on a campaign contribution, is this still "free speech"? Did our founding fathers envision this sort of free speech? No. Free speech was the ability to talk and be heard, not on television, or on radio, but in print, which was plentiful and cheap, and at meetings and on the street.
Did our founding fathers envision corporations able to make huge donations and support independent expenditures? No. Corporations were few, and they were organized according to government laws that required obligations to the public far beyond those required today.
None of us has lived in the free speech world of our founding fathers. We live in a new world, where the only thing we have in common with the founding period is that a great deal of written communication is once again anonymous.
Yes, each of us can speak our minds on the Internet, but few of us have an audience. There is no sense of equal free speech except in those "dystopian" public campaign finance programs, where a small contribution can be meaningful, and no one can make a large one. Or so it would be if the enemies of public campaign financing had not opened the doors to independent and, soon, opposition expenditures without limit, that cannot be matched. These expenditures are made by people who do not really believe in "free speech" for anyone but them and their few financial equals, or they would be spending much of their wealth helping others to be heard.
We need to decide what we mean by "free speech" with respect to officials and candidates. Is it "free" in the sense of unhampered, or is it "free" in the sense of able to be heard? In other words, is the "free" more important than the "speech"?
Do we care anything about the free speech of those without financial resources? Does our society gain anything by helping to increase the number of candidates running, and the expression of their views in an electoral context?
Or put another way, does our society lose something by filling the airwaves with mean-spirited ads that contain little content of value to voters? Is there anything more dystopic than many of our elections today, where the selections of two huge, hateful parties slug it out, and the selections of other parties, not to mention independent candidates, cannot even get their messages across?
Rights vs. Obligations
The refrain in the Bill of Rights is "the right of the people." There is nothing about the rights of government officials or political candidates. In fact, the Constitution is more about the obligations of government officials, which is what political candidates seek to be. One could almost define "government official," constitutionally, as a citizen who has given up his or her rights in return for power and obligations.
An unconstitutional dystopia, therefore, would be a society in which government officials seek to have power but, in doing so, refuse their obligations and embrace their "rights." This is essentially what people are arguing for who seek to undermine conflict of interest laws, campaign finance laws, public campaign financing programs, and open meeting laws.
They, not the supporters of government ethics, are seeking to foist upon our nation a dystopia, constitutional or not, where "free speech" is extremely costly, in both senses of the word.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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