11/21/2009 05:12 am ET | Updated May 25, 2011

Am I Free to Speak?

The U.S. Supreme Court is considering Citizens United (a corporation) vs. Federal Election Commission. At issue is whether or not the FEC went too far in interpreting the McCain-Feingold Bipartisan Campaign Reform Act when it ruled Hillary: The Movie to be campaign speech, advocacy about a particular candidate, instead of the allowed political speech, advocacy on a topic, thus limiting the "freedom of speech" of corporations. Not at issue is the assumption of the court that "freedom of speech" as a right of a corporation is, in itself, questionable.

So it is not a case of whether or not corporations have the right to flood the airwaves and netwaves with advertising in promotion of their political interests. It is about just how much of it they are allowed to do and when. And, unfortunately, if corporations continue to enjoy the status of persons under the law and their freedom of speech is protected, as it has been since the late 19th Century, then acts such as McCain-Feingold probably are limited on constitutional grounds because, according to the 1st Amendment, government "shall make no law ... abridging the freedom of speech".

But it is time to consider some of the developments that technology and economics have had on the question of corporate freedom of speech. As the corporate powers explore ever more new and interesting ways to express themselves, such as FreedomWorks, it begins to get scary. Corporate money dominating mass media and information outlets with advertising account dollars is scary enough, but fomenting protest on behalf of and in the interest of corporations, by ill-informed and unfocused angry mobs, is becoming a threat to public safety. It begins to beg the question of whether protecting "freedom of speech" for corporations is creating a potential for a corporate-sponsored effective coup d'etat. Although for now, the effort does seem limited to intimidating the political left and promoting preposterous ideas, as the government is still pretty much a wholly owned subsidiary of the corporate America.

As important as the legal arguments of individual speech versus corporate speech are in deciding the course of American governance, the effects of corporate speech are more the question. Were the speech of corporations consistently in the interest of the public and the country, nobody would be worried as to whether or not it was a right. From the perspective of history, it seems corporations argued to establish it as a right in order to protect their ability to do harm for profit, to advertise.

Corporate speech, in power, is analogous to the shouting elements of our August of the Loud Town Meeting. Corporations have just got the loudest voices, paid for by profits from your pocket, and you as an individual will simply not be heard over them. Is freedom of speech still defensible, as such, when it is used to propagandize, condition, intimidate and drown out the speech of the public as a whole? It is very tempting to shut up the people you disagree with. But we have entered a period when shutting them up is just a matter of money. The diet of information of our public comes from media sources that are beholden to corporations for their livelihood. How could they both not be influenced?

There is no mention of corporate "freedom of speech" in the First Amendment. Indeed, the framers, they being citizens of what was barely more than an agrarian society, could not have foreseen a time when industrialization would so concentrate wealth and that its power would accrue to so few. If the American Revolution was about anything at all, it was about rebellion against the concentration of power in the hands of a few. The checks and balances and branches of government are the embodiment of that rebellion. They could not have imagined corporations so rich and large that they, or a cartel of them, could rival the reach and power of the government whose very design is an effort to keep power in check.

We have, for some decades now, been in an era that the framers did not anticipate, in which the reach and influence of money could shape the political landscape like never before. In practice, when the abundance and volume of the "speech" coming from one side of an issue overwhelms the voices in opposition, then the "speech" of the opposition is curtailed. The freedom of speech of one, under our own law, can deny speech to another, the net effect of which is to disenfranchise the voting public in the worst possible way, by misleading them.

Currently, the right to speech of corporations is equal to a citizen's right before the law, but unequal in influence. The practical outcome, of recognition of corporate speech as being more equal than the speech of a private citizen, is not consistent with the spirit of our Constitution in terms of equality before, or as a result of, law. And if government "shall make no law...abridging the freedom of speech", then the constitutional options, such as McCain-Feingold, to restrict unequal speech, are limited.

The resolution to this problem currently rests on the viability, or lack of it, of the legal argument that corporations are equal to persons before the law. It shouldn't. This question needs to be elevated to the status of balance of powers, corporations wielding inordinate power in the function of government as they now do. It has become a question in theory of government concerning the influence of lobbyists, campaign reform and corporate "freedom of speech," as the narrowness of the First Amendment seems archaic in its approach to a problem that now threatens to overwhelm the Constitution itself.

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