Thursday September 13, 2012

On the First Amendment and Citizens United

Editor of the Reformer:

John McClaughry believes that the Left seeks to destroy the First Amendment ("The left's campaign to destroy the First Amendment," Sept. 6). I disagree.

Two questions guide the Citizens United decision. First, is free speech limited to an individual person or does it include an organized group of individuals? Second, is the Constitution to be interpreted, as a matter of principle, only on the basis of the words of the First Amendment as they would have been understood by the framers or, as a matter of pragmatism, by comparing the results of alternative interpretations to the intent of the framers in writing the Amendment?

On the first, the Amendment reads: "Congress shall make no law ... abridging the freedom of speech, or of the press ..." I take the "press" to be the publisher of a newspaper. The publisher is an organized group of individuals, as are corporations. I conclude that the First Amendment guarantees corporations the right to say what they want.

On the second, Our right to free speech is not absolute. As Justice Holmes pointed out, no one has the right to shout "fire" in a theater. The right has limits, and the behavior of persons exercising the right may be regulated.

Since the ratification of our Constitution, the division between the wealthy (Hamilton) and the masses (Jefferson) has been at the heart of our politics.

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We are a democracy; and, in a democracy, the mass has an inherent political advantage. If our politics is to be conducted on an level playing field, the wealthy must be allowed to counter the numbers of the mass by the use of their wealth. However, I do not believe that the framers intended either the mass or the wealthy to have a permanent advantage in politics. We can now see that the Citizen United decision, if it stands, is likely to give the wealthy a permanent political advantage. I believe that the framers intended that corporations (and wealthy individuals) should be guaranteed a right to say whatever they please politically but should not be guaranteed a right to drown out their competition. I, therefore, conclude that the Citizen United case was wrongly decided.

This leads to a third question: The wealthy have a right to say whatever they please politically, but the spending of their resources may be regulated. Congress should set limits and the Supreme Court should act as an umpire (as Chief Justice Roberts said in his Senate hearing) to ensure that the limits are within reason. The Court did not act as such an umpire when it rendered a decision the result of which is to set no limits on spending by corporations or the wealthy.

Mr. McClaughry is not seeking to protect the First Amendment but rather to protect the permanent political advantage that the Supreme Court gave to corporations and the wealthy in their Citizens United decision.

This "lefty" is seeking to make the First Amendment function equally for the wealthy and the mass.

Tom Bertone,

Dummerston, Sept. 11