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[Photo by Jacquelyn Griffin)

Saturday, August 2, 2014

Intelligence Squared and Free Speech



I'm rather a fan of Intelligence Squared, whether you mean the US or UK versions, but I missed, until I heard it on NPR today, the June 26 debate on the resolution that "individuals and organizations have a constitutional right to unlimited spending on their own political speech. (Transcript of the debate may be found here.)


In support of the resolution were two giants in the free speech community--Nadine Strossen, who has generously shared her archives and her advice with me in the past--and Floyd Abrams, whom I have only met once, when he and I were on opposite sides of a case (he won, and quite properly, too), but who treated me as a colleague throughout. In opposition, stood Burt Neuborne, founding Legal Director of the Brennan Center, and Fordham law professor Zephyr Teachout.

The debate was complicated by the fact that the resolution was so broadly written that each side had a difficult proposition embedded in the DNA of their arguments. On the side of the resolution, Floyd and Nadine (what? They've each invited me to be on a first name basis with them) had the difficulty posed by treating campaign contributions as the equivalent of speech, while Neuborne and Teachout had the inherent difficulty of a proposition that, taken broadly, would lead to penalizing natural persons, not for profits and for-profit corporations alike for publishing books, articles or films, a result very hard to square with the language of the First Amendment.

Alas, the anti-proposition side, from their opening statements on, took the position that the Free Speech Clause of the First Amendment--"Congress shall make no law . . . abridging the freedom of speech"--could not mean what it says. Rather, they argued, a rule of reason needs to be applied, and the courts should use the allegedly ambiguous words "abridging" and "the freedom of speech" to allow for reasonable limitations.

As the author of a fairly lengthy book refuting that pernicious proposition, I was appalled. Nadine and Floyd quite skillfully and correctly laced into that viewpoint, one that has, in the past, been used to allow for censorship of whatever the dominant political or cultural elite does not find comfortable. (Really; just look at Edward de Grazia's masterful account of the abuse of the law to criminalize some of the most important writers of the 19th and 20th Centuries, or at Nadine's own account of how obscenity law has been used to limit women's speech. I address some of this, too, in my own work.)

I should have liked to hear Nadine and Floyd defend treating as pure speech donating money--as opposed to actually spending it directly on expressive activity of one's own--but the anti-proposoition side did not press that point. As I believe that donations are not pure speech, but conduct (a transfer of funds) that has an expressive component, and thus may be regulated in a non-discriminatory, viewpoint neutral way, just as burning objects (crosses, flags or draft cards included, but not only those), I would have loved to hear their response. Alas, the anti side, having chosen to water down the essence of the First Amendment down to, as Justice Douglas once scathingly described a similar analysis, "no more than admonitions of moderation," did not get that deeply into the nitty-gritty of the debate.

I regret to say that the antis nonetheless won the debate by swinging more voters to their side in the post-debate vote. One wonders if those old polls suggesting that the First Amendment might not pass if put up to a vote today still tell us something about where our populace is. Obviously, I hope not.

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