I recommend with significant reservations Tim Wu’s piece on First Amendment rights in the New Republic. Wu brings up a troublingly pervasive approach to the First Amendment — using it to evade transparency regulations (like saying that Southwest Airlines must list the full price of tickets) and to make somewhat fraudulent claims (like green tea providers making the scientifically unsupported claim that green tea reduces cancer risks).
But Wu does so within one of the most ridiculous frameworks of modern liberalism: that this is about “corporate” free speech, and that somehow, this is all about Citizens United.
That’s exactly wrong. Wu’s laundry list of cases where a very expansive First Amendment right seems troublesome is compelling, but it’s compelling because of the type of speech, not the source of it. It would be no more or less problematic for a green tea purveyor to claim in their advertising that the tea was anti-carcinogenic if the purveyor were a single person and not a corporation. We can draw a line saying that the First Amendment does not exempt you from transparency requirements about your product, without dipping into the much more troubling area of trying to restrict straightforwardly political speech.
As to straightforwardly political speech, the whole contention that somehow it’s a grave injustice for corporations to produce it is just utterly silly. Let’s get this straight. It is the contention of those who oppose Citizens United that if I want to say, “You should vote for Jane Doe,” that is all right. If you and I want to say, “You should vote for Jane Doe,” that is all right. If you and I want to enter into a one-time contractual arrangement to place an ad saying, “You should vote for Jane Doe,” that is all right. If you and I want to form a political party and place an ad saying, “You should vote for Jane Doe,” that is all right. But if you and I want to form a company with articles of incorporation, place our money into that company, and then have that corporation place an ad saying, “You should vote for Jane Doe,” that is not all right? For the love of God, why?
Corporations are one means of pooling people’s resources. All of the people who own the company have an individual right to free speech — I hope that’s uncontroversial. Why does their right to free speech go away when they’re pooling their resources in this specific way (but not other ways)?
And I note that corporations pool resources. When you try to remove the rights of speech of people who are pooling their resources this way, you aren’t limiting the rights of the ultra-ultra wealthy. The Koch Brothers, George Soros, and other billionaires can still buy all the ads they want to — they’re rich enough to do it without pooling their resources with other people, so they don’t have to be a corporation, so apparently that’s okay. It’s when you have less rich people who can not individually drop a few million into an ad campaign, but want to none the less be widely heard (and are willing to pool their money and collectively buy that ad campaign) that for some reason we must be protected from. It’s just inane, and it’s all propped up on the basis of trying really hard to get people not to think about the fact that “corporations” are just collections of people — they aren’t freaky alien intelligences that act on their own.