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Money Is Speech

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In his classic novel 1984, George Orwell envisioned a future society in which common sense and basic values are turned upside down. The essence of this vision was contained in a few slogans propagated by the government: "War is Peace" and "Freedom is Slavery" were among the most memorable of these. But our contemporary Supreme Court, led by Justice Roberts, has exceeded even Orwell's expectations with its decision in the case of Citizens United.

The 5-4 split decision in Citizens United enshrined into law the principle that the First Amendment protection afforded to the freedom of speech embraces or encompasses the expenditure of unlimited amounts of money. Congress may make no law, according to the Court, that restricts the raising or spending of money when employed to express a preference for one political candidate over another. Money, in short, is entitled to exactly the same protection that the First Amendment affords to speech. In a word, money is speech.

Let's examine the logic of this assertion. It is offensive on its face. On an immediate, intuitive level, it is like saying a flower is manure. Speech is the loftiest expression of human capacity, whereas money manifestly is mute. In the language of fananciers, money is "fungible" -- equally capable of underwriting the expression of any concept or idea, no matter how false or repugnant.

On the other hand, the notion that money is speech has been endorsed by the highest legal institution in the land. So let's look beyond our immediate intuition and see for ourselves, critically, what is the actual relationship between money and speech.

In our contemporary political system, money is an accessory to speech (somewhat as manure is an accessory to the flower). Speech is no longer confined to conversations between you and me. Speech is now broadcast via television and the internet to far wider audiences. But it does so at a price. The engine of its broadcast is money. Money powers the propagation of speech. Money amplifies speech.

So let's consider some other ways in which speech can be amplified. Let's see whether it is reasonable to say that the amplification of speech is afforded the same protection by the First Amendment as speech itself.

Would we allow a candidate for political office to drive through town broadcasting his message with loudspeakers turned up to such a volume that they drowned out all other sound? Would we allow billboards so large they blotted out the sky? Would we allow people to invade homes and businesses with their political messages? Obviously not -- in these and a hundred other ways, we are perfectly willing to limit and regulate the amplification of speech without any fear that in doing so we are limiting speech itself.

But the Supreme Court has afforded to money a special protection, a protection reserved for no other means of amplification. Money alone, according to the Court, is an amplification of speech that cannot be regulated.

Surely this perversion of logic and the law can lead us to only one conclusion. Only the interests of money could conclude that money deserves such protection. With its decision in Citizens United, therefore, the Supreme Court has declared itself to be firmly in the pocket of money. It represents the interests of money, not of the Constitution, much less of the people.

By protecting money in this fashion, the Court has opened up the process of democracy to unbridled self-interest, and it will be interesting to observe its consequences, as the years and decades go by, and whether its perpetrators will ever be held responsible for their behavior.

For anyone interested in the internal politics of the Court's decision, the historical background, or the specifics of Citizens United, see Jeffrey Toobin's article in the May 21, 2012 issue of The New Yorker magazine. Toobin has long excelled as a commentator, but with this article he ascends into the more rarefied atmosphere of distinguished journalist.