The interpretation of the U.S. Constitution requires some amount of intelligence and logical thought. Our Founding Fathers purposely wrote it that way because they had the foresight to recognize that American society would change over time, so that a Constitution that was overly specific would soon outlive its usefulness. So it was with the
Roe v. Wade decision. For example,
as explained here:
State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.
The
14th Amendment says nothing specifically about the right of women to make decisions affecting their own bodies, nor even about the right to privacy. But those rights are inferred from its “due process clause”:
Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
THE FREE SPEECH CLAUSE OF OUR 1ST AMENDMENT
PurposeSo it is with the First Amendment to our Constitution, including its free speech and free press clauses. The free speech clause of our First Amendment was never meant to be merely a meaningless abstract concept. Rather, it was meant for a specific purpose – which is best ascertained by reviewing and assessing the deliberations and statements of the Founding Fathers who wrote it.
Thomas Jefferson was the primary author of our First Amendment. He elaborated on the rationale for freedom of speech in his
Second Inaugural Address, in which he said:
Freedom of discussion, unaided by power, is...sufficient for the propagation and protection of truth.
Jefferson
also said with respect to freedom of speech and freedom of the press:
Our first object should therefore be, to leave open to him all avenues to truth. The most effective hitherto found is freedom of the press.
An assessment of these and other similar statements should make clear the primary purpose of the free speech and press clauses of our First Amendment: The discovery of truth. Our Founders believed that by prohibiting the government censoring of speech, Americans would thereby have the opportunity to be exposed to such a variety of opinions and ideas that they would have the opportunity to divine truth. Thus freedom of speech and press are necessary to produce an informed citizenry. And only an informed citizenry can maintain a representative government and a free society.
Therefore, any attempt to interpret the free speech and press clauses of our First Amendment must take account of its underlying purpose – the discovery of truth and an informed citizenry. Any attempt to interpret the First Amendment without reference to that underlying purpose is likely to result in a perversion of our First Amendment. And so it has.
Our First Amendment is not absoluteLike all other parts of our Constitution, our First Amendment is not absolute. For example, as most Americans are aware, our First Amendment doesn’t give us the right to shout “Fire!” in a move theatre, unless the speaker believes that a fire exists and poses a danger to those to whom he speaks. Doing so would endanger peoples’ lives and contribute nothing to the discovery of truth. Similarly, the right of citizens to sue those who libel them is testament to the fact that our freedom of speech is not absolute. Malicious libeling of one’s fellow citizens contributes nothing to the discovery of truth, and those who practice it should be held accountable for their actions.
If our government allowed a citizen to speak his opinion only when held in solitary confinement, that would be a perversion of our First Amendment because speech has no value unless others can hear it. Similarly, when the Bush Administration established “
First Amendment Zones” for protesting against government actions, that was a perversion of our First Amendment. The purpose of the so-called “First Amendment Zones” was to
limit the number of people who could hear the speech of the protesters. Thus, the purpose of the “First Amendment Zones” was the precise opposite of the purpose for which the free speech clause of our First Amendment was created.
PERVERSIONS OF THE FREE SPEECH CLAUSE OF OUR FIRST AMENDMENTSeveral judicial decisions in recent decades have threatened to pervert the free speech clause of our First Amendment to the point of making it not only meaningless but obstructive of the rights of American citizens to access the truth and to live in a democratic and free society. These judicial errors include primarily: 1) The assertion that money is a form of “speech”; 2) the assertion that our First Amendment applies to the abstract entity that we call corporations, and 3) the failure to take into account the fact that the speech of some can sometimes drown out the speech of others. A rational interpretation of our First Amendment could have prevented these perversions.
Money as speechBuckley v. ValeoThe 1976
U.S. Supreme Court decision Buckley v. Valeo was a mixed blessing. On the one hand, it recognized that there should be a
limit to the First Amendment protection of campaign contributions. Specifically, if excessive campaign contributions could be seen to have corrupting influences on the behavior of our government, Congress should be allowed to put a limit on campaign contributions for that reason.
On the other hand the
Buckley decision essentially said that money can be
equated with speech, by saying that our First Amendment protects the right of candidates for public office and independent parties to spend unlimited amounts of money on political campaigns in the form of “speech”. That decision is
explained here:
The Court concurred in part with the appellants' claim, finding that the restrictions on political contributions and expenditures "necessarily reduced the quantity of expression by restricting the number of issues discussed, the depth of the exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money." The Court then determined that such restrictions on political speech could only be justified by an overriding governmental interest.
But the problem of equating money with speech is that some people have a lot more money than other people. Therefore, wealthy people, by virtue of the fact that they have orders of magnitude more money than poor people, also have orders of magnitude more access to “speech”.
Furthermore, it is well known that money contributed to political campaigns is translated into votes. Therefore, by allowing unlimited campaign contributions, the end result is that the wealthy have orders of magnitude more influence in elections (i.e. more votes) than other people. This makes a mockery of the principle of
one person, one vote.
Randall v. SorrellA
2006 U.S. Supreme Court decision,
Randall v. Sorrell, went well beyond
Buckley v. Valeo. That decision not only reiterated the principle of allowing unlimited political campaign expenditures by candidates for public office and third parties, but it also struck down a portion of a 2006 Vermont law that limited campaign contributions, thus making even more clear the equating of money and speech.
The equating of money with speech is an outrageous perversion of our First Amendment. Campaign contributions do not express opinions. The permitting of unlimited campaign contributions does not contribute one iota to the discovery of truth. Quite the contrary, when excessive, they are frequently used to “influence” (bribe would be a more accurate word) government officials to do the bidding of those who contribute money to them, to the detriment of the public interest. That in itself is an affront to the idea of the one-person-one-vote principle of representative government. Legislators, in the interest of those whom they are elected to serve, should have not only the right, but the obligation to create legislation that prohibits that kind of corruption.
Jeff Milchen explains the meaning and consequences of this type of perversion:
The justices told legislators and reform advocates, who possess first-hand experience of political corruption, that their concerns are merely theoretical…. The Court effectively prohibits states from leveling the political playing field between the wealthy citizens and everyone else…
The court clearly is interpreting the Constitution in a way that prevents representative democracy… With its ruling in Randall, the court is supporting the segregation of Americans into two distinct classes, just as it did when it twice supported blatantly discriminatory poll taxes that disenfranchised black citizens (and some poor whites) for nearly a century after the 15th Amendment officially enabled them to vote in 1870.
Today, one political class is the overwhelming majority – we express our preferences with our votes or volunteer efforts. The other class consists of those wielding real power – the ability to finance the bulk of candidates' campaigns and effectively "set the menu" of candidates from which the rest of us may choose.
First Amendment protection of corporationsOur judiciary has also claimed that our First Amendment protects the speech of corporations – as in the
recent U.S. Supreme Court decision in
Citizens United v. The Federal Elections Commission:
The Court has recognized that the First Amendment applies to corporations… Political speech is indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation.
Unlike some other privileges granted to corporations, protection of free “speech” granted to corporations is not dependent upon defining corporations as “persons”, since the First Amendment doesn’t mention that word. The
First Amendment merely states that “Congress shall make no law…. abridging the freedom of speech.” Partly on this basis, some claim that our First Amendment protects the speech of corporations.
But that claim is just as absurd as the claim that money is a form of speech. A corporation is an abstract entity that is created by government, presumably to provide a public benefit. Given that it is created by the state, how can anyone seriously assert that it has “rights” in the sense that human beings have rights? Can anyone honestly believe that our Founders meant the protections of our First Amendment – or any other part of our Constitution – to apply to an abstract creation of the state?
Furthermore, the granting of free speech to corporations does not serve the discovery of truth. Corporations are not interested in discovering truth, and no reasonable person would make that claim. To the contrary, corporations are responsible to their investors to create profits, and they make every attempt to do so even when doing so means actively hiding the truth, through the use of disinformation campaigns or whatever means are available to them.
Corporations of course are composed of persons – most wealthy persons. They are granted numerous privileges and immunities by government. To provide them with additional protections that are normally reserved for human beings adds to their already considerable power – in the absence of corresponding accountability. Certainly the government that created a corporation in order to serve the public interest should have the right to withhold certain protections (normally reserved for human beings) if it believes that to do so is in the public interest – without the fear that our judiciary will over-rule it. Withholding such protections from corporations does not interfere with their human rights. Each individual human who is a member of a corporation retains the individual protections of our Constitution even when those protections are not granted to the corporation as a whole.
U.S. Supreme Court Justice John Paul Stevens
commented upon the
Citizens United decision that claimed that corporations are protected by our First Amendment:
Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests… {This decisions}will undoubtedly cripple the ability of ordinary citizens, Congress, and the states to adopt even limited measures to protect against corporate domination of the electoral process… Their (corporate) interests may conflict in fundamental respects with the interests of eligible voters. . .
Government complicity in favoring the speech of the wealthy Another perversion of the free speech clause of our First Amendment occurs when government favors the speech of the wealthy over that of ordinary Americans. The corporate monopoly of our public airways constitutes a blatant example of that.
Background - The Federal Communications Act of 1934The
Federal Communications Act of 1934 replaced the Federal Radio Commission with the Federal Communications Commission (FCC). The
philosophy behind the legislation was that the airways that enable communications via radio or television are public, and therefore they must serve the public’s purpose. This philosophy can be likened to the view that the air we breathe, the water we drink, the public roads that we travel on, and our national parks and forests must serve the needs of the public, and therefore private individuals or corporations may not use them for their own purposes at the expense of the public. The concept of “public airways” protects our right to free speech and freedom of the press, and consequently our need for the information required in a democracy.
In order to prevent the chaos that would exist in the absence of any federal regulations, the 1934 Act gave the FCC the responsibility for granting licenses to broadcasters to use the public airways, with the understanding that they were required to promote the “public interest”, a phrase that appeared 40 times in the legislation. The obligation to promote the public interest derived from the fact that the broadcasters received free federal licenses worth hundreds of billions of dollars.
The monopolization of speech by the wealthyHowever, the
Telecommunications Act of 1996, by relaxing the rules that prohibited monopoly control of telecommunications, led to the concentration of the national news media of the United States largely in the hands of a very few wealthy corporations, to an extent never before seen in our country. This, more than any other event, allowed the content of the news received by American citizens to be determined by a small number of very wealthy and powerful interests.
Because the vast majority of information that most Americans receive today is through the telecommunications industry, and because access to the megaphones that the telecommunications industry uses to communicate to the American people is very expensive, the wealthy have the ability to use those megaphones to a much greater extent than do ordinary American citizens. Consequently, wealthy persons, individually or through the corporations that they control, use their wealth to purchase air time on the previously “public airways” to get their message out – in the process precluding those with less money from doing the same.
CONCLUSION – THE PERVSION OF FREE SPEECH AND DEMOCRACYThus it is that the wealthy have the ability to drown out the speech of ordinary Americans and thereby exercise a disproportionate degree of influence over elections, thus perverting the democratic principle of one-person-one-vote.
By equating speech with money, wealthy interests are enabled tocontribute massive amounts of money to the campaigns of their chosen candidates, thus facilitating the election of those candidates and simultaneously making those candidates beholding to the desires of their wealthy campaign contributors. In a logical and honest world, this practice would be called by its real name – bribery. By claiming that the “speech” of the state-created abstract entities known as corporations is protected by our First Amendment right to freedom of speech, the wealthy elites who own and control those corporations are provided with the power that accompanies political speech in the absence of the accountability attached to the speech of ordinary Americans. And by allowing unlimited expenditures by candidates for public office or their supporters, wealthy interests are thereby granted access to the formerly
public airways, which they utilize to advance their own interests at the expense of the public, who lack the financial resources to be heard over the megaphones accessible to the wealthy.
In order to restore a semblance of democracy, Congress periodically passes campaign finance reform legislation that limits the ability of wealthy interests to influence elections. But when our courts, through decisions such as
Buckley v. Valeo, Randall v. Sorrell, or Citizens United v. The Federal Elections Commission, strike down this legislation as unconstitutional on the basis that it abridges our First Amendment right to free speech, the ultimate effect is that they allow the wealthy to continue to bribe public officials in pursuit of their own selfish interests and drown out the efforts of ordinary Americans to be heard. Thus is our First Amendment and democracy subverted in the interests of those with enough money to purchase the “speech” that they need to influence elections in accordance with their interests.