This American Life on Citizens United
Author: Timothy Sandefur
NPR's show This American Life quotes me as part of a discussion of the rights of corporations–a story inspired by the Citizens United decision. (My comments appear about halfway through; they didn't appear in the aired version of the show because the story was done as part of a sort of competition, and they cut off the story before the end was played.)
After my comments, a law professor is quoted saying that "conservatives" have "turned the First Amendment into democracy's foe." I think this is a very revealing comment, for two reasons.
First, the view that the government should censor the speech of people who do business in the form of corporations is rooted in the idea that free speech is an instrumental good that serves "democracy." That is the Progressivist interpretation that sees "democracy" as the central value of the Constitution, and sees individual liberty as a privilege that is created by the government in order to promote "democracy." This is the opposite of the view of the Constitution's authors: they believed that the fundamental constitutional value was liberty, and that democracy existed only to serve liberty. That's why the first sentence of the Constitution declares that liberty is a "Blessing," and why the Constitution goes on to impose serious limits on democracy. In their view, speech is protected because individuals have the right to express themselves–not because speech has a relationship to democracy. Obviously they understood that free expression was good for democratic decision-making, but their primary concern was protecting the rights of individuals, not with preserving some vague conception of "democratic society."
That vagueness is key to the second point: the notion that it somehow distorts democracy for people who do business in the corporate form to express themselves is rooted in a vaguely idealized notion of what "democracy" means. Modern day Progressives don't think democracy just means the right to vote, or the will of the majority, or what have you; they think it means that the government "serves the people" in some broad sense, and that corporations somehow stand in the way of this. You might think a "democracy" would be a society in which everyone has an equal right to participate, and nobody gets censored, but these Progressives are promoting censorship in the service of a "democracy" in which owners of corporations are not allowed to express themselves or defend their political interests.
Why is this? The answer is obvious: the pro-censorship crowd tends to be the same people who believe in taking money and opportunities away from corporations and giving it to other people. They obviously don't want the owners of corporations to be able to defend themselves against those proposals. The argument against corporations participating in democracy is rooted in their desire to censor their political opponents–nothing more.
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