Glenn Greenwald is an insightful writer. He is right about many things. He is wrong about the Citizens United decision, which he defends on First Amendment grounds.
Because we share first names I’m going to refer to him as Mr. Greenwald, for clarity and to signal my deep respect for his work.
I am not going to argue about whether corporations are persons, though I don’t think the Framers had corporations in mind when they wrote the First Amendment. I’m going to argue that the Supreme Court’s ruling has the practical effect of abridging my First Amendment rights and yours.
Mr. Greenwald says outcomes don’t matter. A principle is a principle, and it shouldn’t be judged on its outcomes, which will sometimes be good and sometimes be bad. I thought the American pragmatist philosophers (Pierce, James, Dewey, et al) dispensed with the notion of essential truths existing above and beyond earthly outcomes. Truths can only be judged by their consequences.
For instance, extending the right to free speech to someone in solitary confinement has no meaning, but you don’t know that if you don’t look to outcomes. With no one to hear him, the right is meaningless.
We can and should adapt to changing circumstances, not by abridging constitutional guarantees, but by looking to consequences to make certain those guarantees are fully protected. In the context of today’s costly mass communications, the Court’s ruling gives corporations an ability to be heard that is beyond the means of average citizens. It handed new powers to corporations, powers that have the effect of curtailing my freedom of speech and yours. To be sure, the wealthy already had this power. The court greatly increased it. Still, the Court’s over-reach gives us the opportunity to correct past inequalities and errors.
Mr. Greenwald says we learned an important lesson during the Bush era: Policies like warrantless wiretaps can’t be judged on their outcomes. I guess he means the “good outcome” of better security doesn’t justify violation of constitutional guarantees of privacy. But isn’t it the outcome of lost privacy that concerns us, rather than blind allegiance to an admittedly noble principle?
Bush scrapped constitutional provisions. I’m talking about applying them to changed circumstances. We can’t ignore the increased power the Court has given unaccountable corporations. Greenwald’s Bush parallel doesn’t hold. The Court didn’t give corporations the same right to free speech that you and I enjoy. It gave them the right to more free speech than you and I have. It is equivalent to giving more weight to the votes of the wealthy, say, based on a measure of total assets. A person with 10 times my wealth gets 10 times more votes. That is clearly unconstitutional. It is a pretty close parallel to what the Court has done in the Citizens United case.
Mr. Greenwald ignores this fact: all forms of speech communication are not nearly so equal as they were when the First Amendment was written and adopted. Television advertising is much more persuasive than a plain human utterance. Its reach and repetition, purchased at high cost, are beyond the average American’s ability to pursue. But it is not simply its reach that makes it powerful. Studies suggest advertising can actually alter our memories, and therefore our very selves. No matter how persuasive this little essay might or might not be, it won’t do that. (See Elizabeth Loftus.)
Mr. Greenwald has to assume that we are as rationally engaged in judging information conveyed via television ads as we are when reading or listening to our neighbors. This is not the case. I wish it were. Advertising is not mind control, but it’s not fully and rationally arbitrated, either. Much contemporary neuroscience and psychology also put the lie to the idea of the supremacy of reason and the unencumbered rational actor. (See: George Marcus, Drew Weston, Antonio Damasio, Elizabeth Loftus, George Lakoff, Daniel Kahneman).
But now that I’ve mentioned mind control, how should we interpret the First Amendment in the instance of some form of irresistible mind-controlling medium? Would we ever be allowed to judge such a communication as something other than speech protected by the first amendment? Would we have to include outcomes in our reasoning? I think the answer to that is yes. To make a qualitative judgment about mind-control, we would have to look at its formal characteristics, its consequences, it’s outcomes. If we didn’t, we’d have to say a mind-control beam was protected by the First Amendment.
In any case, the wealthy can advertise; the street-corner activist can’t. So, the advertising corporation has more speech than the activist. This is the problem with the money = speech equation, which Mr. Greenwald also defends. I think the equation money = votes is more realistic. The more money you have, the more votes you control.
Without that equivalence, Mr. Greenwald says, Congress could prohibit the spending of money on say, criticizing laws passed by Congress, without violating the First Amendment. This example, by the way, implicitly recognizes a hierarchy of forms of communication as it seeks to protect the more powerful forms, those that cost more money.
This dilemma, rightly recognized by Mr. Greenwald, can’t be resolved without exploring, once again, the hierarchy of forms of communication. Simply shrugging and saying they are all the same won’t cut it.
What’s needed (besides a constitutional amendment that says corporations are not persons and a turn to full public finance of campaigns) is some kind of equal access guarantee. The late Fairness Doctrine was based on this insight. Is it far-fetched to ask that if a party wants to buy the most powerful, persuasive form of communication available, then its opponents must be afforded some opportunity to do the same?
Mr. Greenwald’s most spurious argument is that corporate influence is already so powerful that it can’t get any worse. I see no need to refute this one. It’s just not reasonable. I suppose some argument is necessary, though, so I’ll just say that corporate officers used to have to pay taxes on salary or bonuses before they could give personal money to a campaign. Now they don’t. Do you think that means they will give more or less money? Also, some previous corporate reluctance to contribute, even in states where allowed, was because general counsels worried about vagaries of the law, not because they were reluctant to pay for political persuasion.
All this said, in the end I believe I am following Mr. Greenwald’s recommendation to base our arguments on the First Amendment. Where I disagree, strongly, is his very conservative argument against taking outcomes into account.