Speech and Money

By Jonathan Wallace jw@bway.net

Rules relating to the use of "soft" money in political campaigns are speech restrictions, defining the extent to which groups may publish viewpoint ads in support of, or opposition to, a candidate. While many commentators bewail the undue influence of money in politics, and the tendency of the masses to be easily swayed by political advertising that appeals to emotion rather than reason, insufficient consideration is usually given to the free speech context of campaign finance regulations.

The operative metaphor of free speech in the United States, as given by Justice Holmes in two famous dissents, is the "marketplace of ideas." Holmes said:

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-- that the best test of truth is is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.

And he added in another opinion that the free speech dialectic must be permitted to lead wherever it will go---even to totalitarianism:

If in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

Thus, the pure concept of American freedom of speech is, for better or worse, indistinguishable from a libertarian concept of free markets. Speech will compete in the marketplace and the best speech, like the best product, will win the hearts and minds of the consumers.

Note that Holmes is not in any sense an ethical determinist; it is not fore-ordained that the speech which wins will be "good" by any independent standard: it will not be the highest Platonic ideal of all the ideas under consideration, or the most beautiful. In Holmes' resigned determination, the speech which wins may even be Marxist, which certainly he reviled. Thus, the market mechanism of free speech is designed to lead us in the direction of whatever the people want, no matter what that is.

The speech that wins therefore is "best" only because it won, and for no other reason. This is reminiscent of Huxley's statement in Evolution and Ethics that if the climate were to change in a particular way, the "best" life form on Earth, because the sole survivor, might be a lichen.

There is a subtext to Holmes' analysis: the free speech rulebook is based on trusting the people to decide what is best for themselves. This is the division which underlies all political discourse and all philosophy: we can divide all thought into two categories, that based on the premise that people can be trusted to rule themselves, and that which holds both that they cannot and that there is someone (philosopher king, oligarchy, dictator) better qualified to decide. As I have said elsewhere, the free speech rulebook is based on humility and optimism: the humility to know that none of us is qualified to be the absolutist decisionmaker, and the optimism (shared, one hopes, by Holmes, so that he was not really a cynic) that the people will choose what is best for themselves.

Of course, it is not necessarily the case that "freedom of speech" is synonymous with "freedom of money to influence speech". An idealistic (and leftist) view would say that money and free speech will eventually become mutually exclusive, that it will be in the interests of the financially powerful unduly to influence the outcome of any debate and to serve as gatekeepers to determine which speech shall be heard. Hence the saying that freedom of the press belongs to him who owns one.

Holmes foreclosed this line of thought in selecting his metaphor. By analogizing speech to a marketplace, he excluded any idea that everyone will have equal access or equal means of exchange. He could just as easily have selected a different metaphor, such as "Hyde Park Corner" or the "Athenian agora" in which a leveling tradition allows rich and poor to have the same access to an audience. That he did not indicates that in his mind there was no meaningful distinction between the "pure" and "financial" competition of speech.

The point of the First Amendment, as it has been so extensively interpreted by the Supreme Court, is to limit (not to prohibit) the circumstances under which government may put its finger in the balance to influence speech outcomes. While the language of the amendment is absolute--the naive and idealistic are fond of quoting the saying "'No law' means 'no law'"--the Supreme Court's definitive interpretation really says that government may interfere in speech whenever it has a compelling reason and does so in a "narrowly tailored" way. Moreover, certain forms of expression such as obscenity can be arbitrarily defined as "not speech" and therefore excluded from First Amendment protection entirely.

Here is an example of how a speech determination can be evaluated with regard to its consistency with the underlying metaphor. In its "seven dirty words" case, Pacifica v. FCC, the Supreme Court held that speech could be regulated if uttered in a "pervasive" medium like radio. This effectively rephrased Holmes: We must allow speech to go wherever it will, unless it becomes "pervasive" (in other words, disfavored speech looks like it is about to win) in which case we can put our finger in the balance.

Aside from missteps like Pacifica, which can be blamed on ignorance of the similarity of new media to old ones, the Court has been fairly consistent in limiting the circumstances in which government can put its finger in the balance. It has, for example, discovered the political context of self-avowedly "content neutral" regulations (you can get a permit for your demonstration, I can't get one for mine) and zeroed in on "forced speech" (we will require you to disclose your name and address on your leaflet.)

The crux of the matter, in deciding whether campaign finance regulations will stand up to First Amendment scrutiny, is to determine whether an attempt to separate speech from money can ever be effective without government tipping the balance impermissibly in favor of some speech. The answer is no. In effect, campaign finance regulations promote an "agora" metaphor in one limited area of speech, the political, while a "marketplace" metaphor holds everywhere else. If it would be an insult to First Amendment principles to limit the circumstances under which a private citizen can purchase an ad condemning American involvement in Serbia, it is equally an insult to limit the amount of money he can spend on an ad attacking Senator Schumer.

The most effective criticism of the idea I have just advanced, that limitations on "soft money" and indirect spending violate the First Amendment, is that it is impossibly idealistic and takes no account of practical realities. The critic says, "You are supposing a Citizen Paine who is limited from uttering his criticism of a politician. The reality is that these laws limit the state Democratic or Republican committee from funneling cash to these kinds of ads." The problem is that the moment we try to establish the motivations of the speaker, we are fully planted in impermissible territory under the First Amendment--in fact, making Castro's supposed distinction between "loyal, constructive" and "disloyal, destructive" criticism. A law which allowed officials to grant or deny demonstration permits based on criteria as to the private motivation of the applicant would immediately fall as not being "content neutral" nor based on a "compelling government interest." If the government does not have a compelling interest in favoring only "loyal" protest speech, it cannot have one in allowing only "sincere" attack advertisements and prohibiting "politically manipulative" ones. In fact, no philosopher king has ever existed whom I would trust to distinguish between "sincerity" and "manipulation" in the advancement of ideas, political or otherwise.

This is why Holmes says that we must let the dialectical process, leading to public acceptance of ideas, make the determination, and that there is no better way. My critic responds, "Then we will elect the candidate with the most money to spend, for the rest of time," and my response is: "So be it," just as Holmes' was that dialectical materialism will triumph if that is what the American people want. If we cannot distinguish between sense and noise, we will elect the politicians we deserve, and no-one is so much "philosopher king" as to protect us against ourselves.

One fragile but stubborn hope that money will not always push speech to victory is given by the Internet. In a few years or decades, when a high enough percentage of the electorate is logged on, we will see the first successful campaign for Congress held exclusively on the Internet: a David will use the Net to overthrow a Goliath of old-fashioned television advertising. The shock to the beneficiaries of the existing system will be very great, and entertaining to watch. My critic responds, "The Net will settle down to a television and magazine model, with powerful interests controlling portal sites and once again serving as speech gatekeepers." To which the only reply is again that of Holmes: so be it, because only we can be responsible for ourselves.