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Deflating the Myths Behind Citizens United Part 3: A Groundhog Day for Free Speech

In early February, Americans gather about to watch whether groundhogs see their shadows and get scared or gleefully prance into the year ahead. Just like groundhogs, somewhere along our journey in life, we all have shadows to face. Something amazing happens when we see those shadows for what they are and defeat the fear surrounding them.

This term, the US Supreme Court looked at its own shadowy precedents that empowered government to censor speech due to years of accumulated fear. That fear amounted to a pent-up frenzied panic about the effect more speech would have on our national political debates. The Court did not shirk its duty, but undertook a careful constitutional examination.

During this time of national debate about what impact the Citizens United opinion holds, it is helpful to look past our own shadows to the true meaning of the case. It might be helpful to remember just how frightful it was for average individuals to go out and speak about public issues before the case was issued. Recall that McCain-Feingold muted not just multinational corporations, but individuals gathered together as non-profits were hushed even more so.

For a moment, envision yourself in the role of newly elected chairman or director of the “Committee to Free Public Lands Now.” 100 or so of your friends and neighbors have gathered together to run advertisements about the stances taken by certain Congressmen on public grazing issues. You want your speech to be effective — so you’d like to run a small set of television and radio advertisements in the days leading up to elections. You’re mostly interested in getting the public interested in abuses occurring against ranchers, but you know it might also affect elections – though you (and no one) really have no way of knowing this effect.

In getting up to speed, you have done the basics — filed incorporation papers to protect you and your friends from personal liabilities, established bank accounts, set up contracts, and raised about $500 from each member to run a barebones public communications campaign. You would like as much of the money you raised to go toward the heart of your speech and less toward things like legal bills and fees.

The first menace luring at the end of this dark alley would have been 568 pages of speech regulations, 1,278 pages explanations and justifications for them, and somewhere around 1,771 advisory opinions in case the first 1,846 pages were insufficient. To get up and running, you would need to become a master over much of this, or have the funds to hire a boutique DC attorney specializing in election law to do so. The real horror here is that most individuals just gave up and did not speak. The effect of protracted and complex speech rules is simple: People would cling to state-sanctioned safety — a safety delivered only in exchange for their silence.

Would-be speakers would find a triplet-of-terror at the end of a second dark alley: FBI involvement, criminal penalties, and civil fines capable of bankrupting most. While it is quite enough to face a maze of rules just to speak, the added certainty of penalties for not complying with federal speech commissariats’ authority acted as an effective threat against frank public dialogue and debate.

The question must then be asked, what is to fear now that the veil of the Federal Election Commission’s stilted authority has been lifted? Reformers celebrate panic and point to corporations like Exxon and AIG dominating the political discourse. But multinational corporations were already in a place to speak before Citizens United. That is, they could already hire armies of lawyers to get out their speech in many forms like political action committees. The fear here must then be centered against what I will term “emerging speakers” — those who have been freed from the grip of federal speech czars but who were reluctant to speak before. With the gutting of much of McCain-Feingold in Citizens United, it is everyday citizens who are once again able to speak.

One segment of America, the chattering class, still focuses on a shadow of fear when it contemplates letting everyday Americans speak and debate in public — often loud, and sensibly proud. Senator Feinstein, for example, finds fault in talk radio because it is “one-sided,” “dwells in hyperbole,” and is “explosive.” People just can’t be trusted to discern the wisdom of Glenn Beck or Don Imus, it would seem. That same paternalism carries over into fears about the supposed dangers of letting everyday Americans share their take on politics and public life. This fear is fatal for it evinces a mistrust of liberty itself and the open exchange of ideas outside of those condoned by the governing few. We all realize that speech is sometimes messy and even hateful –consider the recent racial slurs shouted out during the healthcare reform protests in Washington. But that speech is nothing to be scared about or a shadow to run away from. It is in that heated exchange of ideas that the finest elements of our search for truth are realized, even during ugly moments.

I am thankful that the Supreme Court took the time to look at its own shadowy precedents and did not run away from them. Well-funded national campaigns now push against the speech-liberating effect of Citizens United. Their focus is on shadows and fear: Focused efforts to convince you that more speech from your neighbor is a frightful event. When we shine the light of reason and the first principles of the Constitution on these shadows they disperse. And we are left instead with the cherished confidence of liberty.

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Sunday, 22 October 2017
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