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Gilbert: Corporations' Free Speech

01/17/12 7:55AM By Peter Gilbert
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(Host) Two years ago this month, a bitterly divided Supreme Court overruled precedent and held that the government may not ban political spending by corporations, and that the Bipartisan Campaign Reform Act of 2002 violated corporations' right to free speech. Here's commentator and Vermont Humanities Council executive director Peter Gilbert to explain.

(Gilbert) For the five justices in the majority, the Citizens United decision upholds the fundamental free speech notion that government may not regulate political speech. The four dissenters fear that unlimited political expenditures by corporations will "drown out the voices" of everyday Americans.

The decision is based on the majority's conclusion that [quote] "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption... And the appearance of [mere] influence or access will not cause the electorate to lose faith in this democracy." [unquote] Certainly that was a debatable proposition two years ago, and it is even more so now, in the time of the Tea Party and the Occupy movement.

The fact that the Constitution has long defined a corporation as a person needn't mean that corporations have the same free speech rights as human beings. After all, corporations are different from humans. While humans speak out of different motives, including self-interest, altruism, and disinterest, corporations speak for just one, albeit quite legitimate, reason: economic self-interest. How much their right to speak should be protected should be determined with that in mind.

Moreover, corporate speech is less closely related to three key reasons why the Constitution protects free speech in the first place: One reason is a free society's commitment to the search for truth. But query whether corporations and unions spending money in elections without any restrictions will help or harm the search for truth.

Second, free speech is protected because it's vital to democracy. But again, query whether absolutely unlimited speech from legal entities of virtually limitless wealth helps or hinders democracy, including ordinary citizens' ability to make up their minds freely and to be heard themselves in the public debate.

And third, free speech is protected because we consider it an integral part of being a free and independent human being. But protecting the autonomy and integrity of human beings doesn't apply to corporations at all.

Accusing the majority of judicial activism, Justice Stevens argues in dissent that the majority's assertion that the First Amendment doesn't permit distinctions based on the identity of the speaker sounds compelling, but in fact the government places speech restrictions on numerous groups, including students, prisoners, and members of the Armed Forces; and he points out that for more than a century Congress has limited corporations' campaign spending.

Stevens concludes, "While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."

Perhaps the most infamous Court decision in American history is Dred Scott, handed down in 1857. Citizens United is, in a sense, the converse of Dred Scott. Dred Scott defined a class of human beings (slaves) as property, thus depriving them of any legal rights; Citizens United defined a class of property (corporations) as persons, and grants them the right to speak as such. Time will tell whether the consequences of Citizens United will prove as catastrophic as Dred Scott.
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