Paging John Stuart Mill
25 January 2010 at 1:36 pm Dick Langlois 5 comments
| Dick Langlois |
I have been amused by the firestorm of outrage in the press over the Supreme Court’s recent mild affirmation of the free-speech rights of corporations. As many readers of this blog will probably appreciate, the point of a right to free speech is that it must apply even to speech, and to speakers, we don’t like. Many if not most angry commentators, like the writers of the Times editorial on the subject, don’t even bother to worry about the nature of rights. To the Times and many others, constitutional jurisprudence is a purely consequentialist exercise no different from legislation (which, sadly, may be often be true in practice). But other writers and organizations aghast at the Court’s decision have a thorny problem of argument, to the extent that they have themselves invoked the First Amendment in an effort to protect speech of which they approve (or, more generally, to protect specific sub-spheres of discourse in which they themselves participate). A case in point is People for the American Way, which has called for a constitutional amendment to outlaw corporate political speech (via William Saletan). “People For the American Way,” they write, “has been at the forefront of defense of free speech and the First Amendment for almost 30 years. We continue in that role today.” In order to square the circle, PFAM and like-minded pundits and Justices have to find a way to define corporate speech as not speech. The answer? Spending is not speech and corporations aren’t people. So: does this mean that it would be OK under this logic for the government, say, to decree that the New York Times must limit its editorial budget — limiting dollars not ideas, after all — because the Times is a corporation not an individual? Why should this logic not apply to the other Amendments as well? The Times should flat-out not have freedom of the press because it is a corporation; and the Roman Catholic Church should certainly not have freedom of religion.
My favorite line, from Justice Stevens (in dissent): “The Court’s blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve.” So freedom of speech is really a neoclassical or Benthamite exercise in which we aren’t trying to protect individual (let alone corporate) speech but are instead trying to maximize the total amount of self-expression in society.
In its recent obituary of Erich Segal, the Times cites the following cringe-inducing line, spoken by college-student protagonist Oliver Barrett IV, as a measure of the literary caliber of Segal’s novel Love Story: “Jenny, for Christ’s sake, how can I read John Stuart Mill when every single second I’m dying to make love to you?” This suggests that many a Justice, editorial writer, and pundit must have fallen prey to similar distractions in college. They certainly failed to read John Stuart Mill.
Entry filed under: - Langlois -, Classical Liberalism, History of Economic and Management Thought, Law and Economics, Public Policy / Political Economy.
Organizations and Markets 
1.
GabbyD | 25 January 2010 at 2:39 pm
i dont understand ur analogy with the times
the times is a journalism enterprise, and its budget has no connection to specific advocacies, specific stories it wants to cover, etc.
lobbying, however, is completely different. the goal is to manipulate policy in a specific direction. moreover, it is manipulation divorced from the democratic way of influencing policy — thru one man – one vote elections.
2.
Dick Langlois | 25 January 2010 at 2:59 pm
I agree that the Times editorial budget and corporate spending on political advocacy are different things. My point is that freedom of speech must see them as the same thing — speech. The budget of the Times does very much affect the paper’s ability to exercise its right of free speech or free press: it’s ridiculous to say that we can take away people’s right to spend their own resources on speech without affecting their right to speak.
As for democracy: a Trotskyite university professor may also want very much to subvert the democratic process, but surely you (or PFAM at any rate) would insist that he or she has an absolute right to expresse those views. Ditto with neo-Nazis, religious jihadists, etc. (Indeeed, corporations are probably low on the list of dangerous speakers one might want to silence on some kind of consequentialist anti-democracy grounds.)
Moreover, understand that rights and democracy are inherently in conflict. The meaning of a genuine right of free speech is that I get to say whatever I want even if 51% (or even 99.9%) of the voters detest what I have to say. A right is a trump against democracy.
3.
Per Bylund | 25 January 2010 at 5:20 pm
So would this “denial” of free speech for organizations also apply to government and governmental organizations?
4.
GabbyD | 26 January 2010 at 4:41 am
interesting. this is the first time i’ve heard this kind of argument.
i understand that more money means being more free; that bugdets affects the ability to exercise free speech.
but i didnt know that the principle behind the right to free speech operated in the sense of having “more” or “less”; i.e. monotonically.
this is the first time i’ve heard of this kind of interpretation. of course, in the real world, this is true — more money means more consumption, including free speech. but this is the first time i’ve heard that the philosophy behind free speech recognizes “more” or “less”.
i thought it was discrete — either u had free speech or not. if you werent punished for taking a certain stand, thats free speech.
moreover, i thought the idea was to reject the idea of freedoms based on wealth, income — that is, the spirit of free speech is egalitarian.
i toitally understand that rights are inherently in conflict.
what i didnt/still dont understand is how the principle/philosophy of the right is OK with some (i.e. rich) people have “more” free speech than others (ie. poor)
5.
srp | 26 January 2010 at 8:44 pm
I can’t tell if Gabby D is trolling…but I’ll bite. The point of the decision is very simple: the organizational form by which people get together to exercise their rights does not vitiate those rights. It has little or nothing to do with wealth–rich individuals could already spend whatever they wanted to get out their messages.
“Freedom of the press” refers to the practice or technology of publication, not to any institutional actor that habitually uses that technology. In other words, “the press” is the activity of disseminating messages to the public, just as “speech” is the activity of talking or writing. To deny freedom of the press to individuals acting together as corporations is as absurd as forcing corporations to quarter soldiers because their properties aren’t “houses.”