Is Money Free Speech? (Part I)

Is money free speech? The answer to this is yes for numerous reasons I will outline in this text. Freedom of speech covers much more than speech, it covers certain conduct that may be seen as an expression. For instance, the Court has held that flag burning (Texas v. Johnson, 1989) and burning a cross in the yard of a minority family (R.A.V v. St. Paul, 1968) are constitutionally protected by free speech. Speech, regardless of how bigoted or hateful it may be, is tolerated under the Constitution. This is not to say a crime had not been committed in these cases, but a conviction cannot entail limiting free speech. The court has found that speech may be limited if the federal or state government has a “compelling interest” to do so. In United States v. O’Brien (1968) the Court upheld a federal statute that made it a crime to burn a draft registration card. In this case, the Court found that “Congress power to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping” and the “many functions performed by Selective Service cards” established beyond a doubt that “Congress has a legitimate and substantial interest in preventing destruction to draft cards.” Free speech may be restricted if the expression “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Brandenburg v. Ohio, 1969). Free speech can also be restricted if there are “fighting words” or words that are “likely to provoke the average person to retaliation, and thereby cause a breach of the peace” (Chaplinsky v. New Hampshire, 1942). We know people use money all the time in their conduct to express themselves through things they buy, especially gift for others. Is this enough to make money free speech? Sure, especially since money is very rarely seen as “fighting words” or “inciting lawless action”. If there is no compelling government reason then a “tie goes to speaker, not the censor” (Wisconsin Right to Life v. Federal Election Commission, 2006).

Money as free speech comes before Supreme Court usually in the form of congressional campaign finance laws. Buckley v. Valeo (1976) was the first Supreme Court challenge to Congressional campaign finance laws. The Court found that the $1,000 limit to campaigns by persons was legal because of the compelling interest the government was trying to prevent in form of corruption or a quid pro quo appearance of abuse: “to limit the actuality and appearance of corruption resulting from large individual financial contributions.” While the court held provisions that capped “contributions” constitutional, they found limits on “expenditures” unconstitutional: “the concept that government may restrict speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure the widest possible dissemination of information from diverse and antagonistic sources and to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” In McConnell v. Federal Election Commission (2003) the Court heard challenges to the McCain-Feingold “Bipartisan Campaign Reform Act of 2002 (BCRA)”. The Court upheld most of the “free speech” limitations placed by Congress in the Act by contending that money is not free speech, pooling money is not free speech, and speech by corporations can be abridged. In his dissent, Scalia takes up all these points and wins the argument. Scalia points to four cases where “an attack on the funding of speech is an attack upon speech itself.” “In Schaumburg v. Citizens for a Better Environment (1980), we struck down an ordinance limiting the amount charities could pay their solicitors. In Simon & Schuster v. Members of NY State Crime Board (1991), we held unconstitutional a state statute that appropriated the proceeds of criminals’ biographies for payment to victims. And in Rosenberger v. Rector and Visitors of University of Virginia (1995), we held unconstitutional a university’s discrimination in the disbursement of funds to speakers on the basis of viewpoint. Most notable, perhaps, is our famous opinion in New York Times v. Sullivan (1964), holding that paid advertisements in a newspaper were entitled to full Amendment protection.” In other words, the Court had a history of protecting money as free speech. As for the pooling of money not being speech Scalia points to the Declaration of Independence: “And for the support of this Declaration, we mutually pledge to each other our Lives, our Fortunes, and our Sacred Honor.” If pooling money is not constitutional then “Congress would be empowered to enact legislation requiring newspapers to be sole proprietorships, banning their use of partnerships or corporate form.” As for abridging corporation’s money as free speech, the Court has long recognized corporations as people. Although corporations cannot vote or run for office, they are taxed and own land. Here is a list of several cases where the Court has held the constitution applies to corporations: Bank of United States v. Deveaux (1809), Louisville, Cincinnati, and Charleston Railroad v. Letson (1844), Marshall v. Baltimore and Ohio Railroad (1853), Santa Clara v. Southern Pacific Railroad (1886), Smyth v. Ames (1898), Hale v. Henkel (1906), Russian Volunteer Fleet v. United States (1931), United States v. Martin Linen and Supply Company (1977), Citizens United v. FEC (2010), and Burwell v. Hobby Lobby (2014).

The Left would love to create an Amendment to the Constitution to end corporate personhood, but then they cannot be taxed or the government cannot seize property for eminent domain reasons. Is that truly what the Left wants? As Justice Thomas correctly points out in his McConnell dissent “why the bribery laws are not sufficient” to overcome the concern of corruption and quid pro quo actions in our election process does not make sense? Thomas also points out “Media corporations are also influential” over elections. Newspapers routinely endorse local and federal candidates to “influence people”. If the press is “too influential” what is to stop Congress to regulate our press from writing “biased” or “slanted” news stories. Besides, McConnell was truly about protecting incumbents as well as stopping “attack ads” on TV. Sure, we are tired of “attack ads”, but like it or not that is free speech protected by the First Amendment. Corporations considered as people and money concerns over free speech only seems to an issue in campaign finance, the Court does not seem to question these principles in any other type of case.