The First Amendment is So Eighteenth Century…

Once again the U.S.’s now right-shifted Supreme Court has reaffirmed the concept that limiting spending on political ads is limiting speech. They threw out campaign finance regulations that restricted corporations from funding issue-based ads that are parallel equivalents to giving money to candidates. As John Bonifaz of Voter Action puts it:

The court continues to equate money with speech in the political process. But beyond that, it gives First Amendment rights to corporations. And these artificial entities don’t have the same, obviously, qualities as you and I do as breathing human beings, and they should not be given those kind of First Amendment protections.

The fact is, is that we need to protect the electoral process and to protect our democracy. And we should not have big money corporate interests drown out the voices of ordinary citizens. The court does not weigh in any way whatsoever the First Amendment rights and the equal protection rights of voters, of people who do not have access to wealth, but yet under our Constitution and our promise of democracy have an equal right to participate. And that continues to be a problem with the court’s jurisprudence in this area.

In a way the ruling is no surprise, as the legal equation of money with speech is long standing in the U.S., and corporations have maintained the status of “people” with legal rights (except the right to die after a reasonable period, it would seem) since the 1880s. More importantly, the U.S. view of what exactly is free speech is stuck in the eighteenth century. That’s how you have the traditionally liberal ACLU supporting this strange entitlement for corporations. (See also Kaja Tretjak’s “Why U.S. Liberalism Must Change or Die“)

What do I mean by stuck in the eighteenth century. Take this snippet of the ruling:

The First Amendment requires us to err on the side of protecting political speech, rather than suppressing it. Where the First Amendment is implicated, the tie goes to the speaker, not the censor.

Now it’s easy enough to argue about whether buying television and radio ads is political speech, especially when it’s a kind of speech that 98% of us could never have, or whether protecting a kind of speech where a few people are massively louder than everyone else makes sense at all.

But I’m writing this from Mexico City, and that offers a bit of perspective. One of the prime issues in last year’s disputed presidential election is the intervention of private corporations into the election at all. And, they intervened quite massively by using fear-stoking political ads insisting the left-leaning PRD candidate, Andres Manuel Lopez Obrador was a “danger to Mexico” and threatening massive economic collapse should he win. An entire block of Reforma Avenue, a central thruway in the City which is now lined with a massive outdoor exhibition charging the winner with fraud, is devoted to this corporate intervention. Now in Mexico, corporate funding of candidates is just plain illegal, while in the U.S. it’s an industry (for all you ever wanted to know about that industry, ask the Center for Responsive Politics). Free speech is a shared concept in both countries, but it means something different.

Encoding the right of free speech and a free press, our First Amendment is a bit vague: “Congress shall make no law … abridging the freedom of speech, or of the press;”. That “make no law” clause meant that violations of free speech weren’t even subject to lawsuits until after the Supreme Court took the 14th Amendment (1866) to mean that rights were defensible. And it took decades of defiance of baton-wielding cops to guarantee regular practice of free assembly, something not really achieved until the unionization push of the 1930s. For the press, though, the no-interference nature of the 1st Amendment boils down to what A.J. Liebling said: “Freedom of the press belongs to those who own one.” So Eighteenth Century.

What do I mean by Valley Girl-style dissing the Constitution? I mean, get with the program. This press freedom for those who own one thing isn’t convincing anyone, in the same way that giving property owners only the vote is passe. And like a lot of things, if you zoom out from the U.S., you see a lot of people have different ideas. The biggest change is to think of rights as belonging to people (all of them, right) instead of restricting the government. So you have South Africa’s constitution:”Everyone has the right to freedom of expression, which includes ­1. freedom of the press and other media; 2. freedom to receive or impart information or ideas; 3. freedom of artistic creativity;” or even clearer the Universal Declaration of Human Rights: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Whoa, “any media” for everyone. That’s going to take some work. Yeah, it’s time to move from our limited idea of freedom (the government leaves you the heck alone) to something which takes work, but is worth fighting for. Building our own media is as much a part of the free speech struggle as is suing for it. That takes all kinds of forms: When the Solidarity movement in Poland (look ’em up, ’cause they were once so rad) demanded a free right to publish, it’s demand was backed up by printing press workers taking over their shops to print & by the free use of pasted poster & graffiti if they weren’t going to be allowed on air. The May 1970 student takeover of Berkeley and the May 1968 revolt in France essentially turned universities into giant publication factories (all those xerox machines and paper), with Berkeley having public competitions among art students to design the best posters and students running from Berkeley and downtown Paris to outside and inside factories organizing blue collar folks to join them. Oaxacan women nonviolently invaded a TV station last summer when they were tired of being ignored, and when a long while later riot police chased them out, activists took over at least ten more broadcasters and opened their doors and their airwaves.

Less confrontationally, but just as effectively, zine publishers & internet folks have been spreading out “those who own one [a press, remember]” to the rest of us. Check out Electronic Frontier Foundation, which has been acting as the legal and legislative defense arm of that effort for the past couple decades.

Cue soundtrack: They Might Be Giants, “I should be allowed to think.”

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