Money Talks, but Can It Claim the Right of Free Speech? – Part II

GUEST: Burt Neuborne
AIR DATE: 07/31/2010

I’m Richard Heffner, your host of The Open Mind.

And when I began last week’s program with today’s guest, I noted that he had last joined me here back in the 1990’s, when he and I became so intensely involved in money, media and free speech matters that we simply didn’t cease and desist until we had actually talked our way through tapings of three of our weekly on-the-air conversations.

Well, unhappily, studio time and dollar limitations don’t permit that luxury any longer. But Burt Neuborne Inez Milholland Professor of Civil Liberties and Legal Director of the Brennan Center at NYU Law School and one of our nation’s foremost civil liberties attorneys shares the conviction of many prominent Americans that those money, media and free speech matters command our nation’s attention even more now than before.

And I would pick up today basically where we left off last time. But, but Burt what I want to do is refer to this quite interesting article that you wrote in The Nation, back in 2005. You called it “Addicted to the Courts”

NEUBORNE: MmmHmm.

HEFFNER: What’s that all about? What do you mean “addicted to the courts?”

NEUBORNE: Well, I would … what I was really talking about is Liberals like me, I mean sort of … I like to think of myself as a Left Liberal. For years we had been using the courts as the primary vehicle to advance our program. And, and done beautifully in it. When you think a little bit about where the country was in 1954, when Brown was decided and how the next 50 years had led to a revolution in the First Amendment, a revolution in equality, revolution in criminal procedure, revolution in the democracy cases, just a remarkable adoption of much of the program that I had in my head when I was 25 years old.

You know a program where people could speak freely, where the government treated people equally, where defendants had lawyers and were … and got fair trials … when all of that was great because the courts did it and we got it addicted to them.

We begin to … we began to say to ourselves … Liberals like me began to say ourselves, we don’t care about the great unwashed majority, what do they know? We know …

HEFFNER: Know.

NEUBORNE: … better. We’re, we’re the elite and we’re going to talk to the other elites that are in the courts and we’re going to persuade them to adopt our position. And it worked for a very, very long time. But any, any philosophy like that is, is eventually going to run out of gas. I don’t care, I don’t care what … whether it’s a constitutional right or a legislative right or an administrative right, you know, if you were linked to the people in some effective way in a democracy then your program is not gong to be a program that will endure.

And frankly I got tired of losing. I got tired of losing Ohio. I got tired of, of unable to make an argument in Kansas. I got tired of, uhmm, having natural allies somehow so estranged because of a lot of these hot button issues, that we couldn’t build political coalitions anymore … to make the country “juster” and fairer.

And so this for me was blowing the whistle, saying “Look, before you go to court, think hard about whether you should go to the people first.” And even if you’re gong to go court, certainly go to the people, too, so you can persuade them about why it’s important for the court to do what it did.

HEFFNER: Do you think that that’s what President Obama had in mind when, just the other day, the headline of the story was, and it was self interpretive “Obama says Liberal courts may have overreached”. Do you think there’s a connection between that …

NEUBORNE: Yeah, I, I think he was saying something … I think they pushed him a little bit on what “overreached” meant. I, I don’t think he thought that the … that the opinions were necessarily illegitimate. He thought they were “activist”.

Just as the Conservatives get “activist” when they get five votes. And it’s fair to say that both sides get activist. It’s also fair to say that if you live by an activist court …

HEFFNER: MmmHmm.

NEUBORNE: … you’re going to lose by a Democratic majority. I mean you cannot forget that this, that, that, that elites shouldn’t and don’t run this country. People do. And if you fail to go to the people with, with plausible reasons about why your positions are right. And you depend, instead, on filing briefs so that the guy that you went to law school with and who is now a judge is going to agree with you, eventually, that comes apart.

And so this was my plea to the Liberal community to stop thinking about courts first and thinking … and to think about them only as an absolute last resort, but to think about political organizing first.

And by the way, that’s what I did with the Brennen Center. I didn’t do it alone, we did it together. When the Brennan Center started it was just another very good public interest law firm, a terrific public interest law firm with excellent lawyers. And what we’ve done over the years is morph from a law firm into a think tank and political organizing operation.

And in the long run, I think that will be much, much more effective.

HEFFNER: The political organizing …

NEUBORNE: And the think tank …

HEFFNER: … making that so.

NEUBORNE: … and the new ideas. You know, the other thing is I was tired at this point of arguing ideas that reached their apogee in 1969. I thought to myself, “You know, I’m tired of trying to put into practice the program that I had in 1969, a lot of that stuff doesn’t work”.

And I thought to myself, “Where are all the interesting ideas?” All the interesting ideas … when, when I would debate somebody … a conservative would have an interesting idea. I didn’t have an interesting idea. And I said, “It’s time for us to get interesting ideas to fight back” because Lord knows, the intellectual depth that, that we can pull from to get ideas that are persuasive, that move toward more justice and equality is enormously powerful and we shouldn’t ignore them. And we shouldn’t think that people, ordinary people won’t buy them when you tell … when you present them to them in a, in a powerful way.

HEFFNER: Do you think that’s what the Right Wing think tanks did?

NEUBORNE: Sure. They out-thought us for a … first of all they lost control of the courts. We had the courts, so they said to themselves, “It doesn’t pay to go into court anymore, we’re going to lose. So what we’d better do is develop a set of arguments …” And, and … you can see it beginning with …the early sixties, “We’re going to develop a set of arguments that we can take to the people.”

One, about the illegitimacy of what the courts are doing. And two, about the wrongfulness of the Liberal program. And they … you know, you cannot look at what happened in the second half of the 20th century and not say that they had a remarkable success. Remarkable success.

They won election after election. And even when the Democrats were in, they were in with, with very, very narrow legislative majorities, or even Republican majorities. And so the … it worked, it worked. And I want to replicate it. I don’t … I mean it, it seems to me that that’s not a one sided proposition.

HEFFNER: Yeah, but you say, “I want to replicate it.” What makes you so convinced that the Liberal think tanks will work out the same kinds of …

NEUBORNE: Oh, well …

HEFFNER: … ideas …

NEUBORNE: … there, there you talk about …

HEFFNER: … successful ideas …

NEUBORNE: … there you talk about my religious beliefs. (Laughter) I mean I’m just kidding, of course.

HEFFNER: (Laughter)

NEUBORNE: But I, I believe very, very deeply in the notion of equality and the notion of, of fairness. The notion of giving … of treating people with dignity. I, I believe those ideas are so powerful and so deeply embedded in the web of, of our culture that those ideas provide the basis for, for, for making very, very powerful arguments.

Let me go one step further and maybe say something that will get me locked out of most of the places I go to dinner.

HEFFNER: I won’t tell anybody.

NEUBORNE: Well, I mean someone’s listening. I hope. If I … if we can’t make those arguments …

HEFFNER: Yeah.

NEUBORNE: Then we don’t deserve to win. If we can’t make those arguments, maybe we’re wrong. I mean … an argument that can’t be explained to an ordinary person, in a way that will allow that ordinary person to understand and respond to it, is an argument that perhaps is using code words that only elites understand in ways that they shouldn’t be allowed to operate.

HEFFNER: Now I would call that a real democratic argument.

NEUBORNE: Yeah. Well, I believe in democracy. I mean, you know, for all my time that I’ve spent in court trying to limit it, it’s always been in aid of democracy. I mean the reason I brought all those free speech cases over the years is not ‘cause I care about Nazis, and not ‘cause I care about whether the Klan can talk or not, not ‘cause I care about whether you can march by somebody’s house, banging pots and pans.

I brought those cases because the First Amendment is the mechanism by which the information that goes to people in a democracy is kept clear so the flow of information is there and people will make their minds up.

And it’s because I trust them and believe that they will make their minds up that I care about the First Amendment.

HEFFNER: Burt you mentioned the word “fairness”. And I think back to all the times over the years since you were first here when I’ve thought “Burt ought to be here to talk about the Fairness Doctrine, fairness and balance …

NEUBORNE: MmmHmm, yeah.

HEFFNER: … etc. How much trouble does the concept of fairness get us into?

NEUBORNE: Well, fairness can, you know, of course, obviously fairness doesn’t have an objective definition. What’s fair to you may not be fair to me, may not be fair to somebody else. So …

HEFFNER: You don’t think that we could say, “Hey, we’re right minded people, we could probably decide on what’s fair and present it to “the” people and have them validate it.

NEUBORNE: Well, here’s, here’s the problem, I think, Richard. I mean there are two great ideas in the Constitution and in our culture … autonomy, which is the ability of people to work without anybody interfering with them, to try to develop their, their … to the very limits of their capacity.

And then equality. Which is, which, which, which says that there, there have to be … we have to treat our brothers and our sisters in this world with the kind of respect that, that we would want to have ourselves.

Now most of the time those two ideas go together very nicely. But sometimes they, they collide. I mean, for example, tax policy. What’s a fair tax policy?

Now if you’re someone who believes very deeply in autonomy, than a fair tax policy is no tax … you keep everything, except the little bit that’s needed to build a road and to have an Army. And that’s, that’s the Tea Party people.

The Tea Party people are strong believers in autonomy. They want to be left alone so they can develop their own.

Now, if you believe, as I do, very deeply in equality, that, that there are people who … hmm, hmm, have the same dignity that I do, but didn’t get the same breaks that I got, and therefore are in need of some assistance and help. Hmm, hmm and I want to be sure that they’re treated properly and, and, and what I would call decently. Then I’m going to take some money, as a tax policy, and try to shift it over to carry out my concerns about equality.

And we could say … and, and I do, I have these debates all the time with people who … on the Conservatives who I respect, about what’s fair.

They’ll say it’s fair to let them keep their money. I say it’s fair to try to even out some of the horrible inequality that happens to a child, when the child is born into a world in which he never gets an education, never gets a chance to have the same opportunities that somebody like I did who was born into a place that gave me an education very quickly. So, so the fairness can be a problem.

HEFFNER: In the old days, when there was a Fairness Doctrine in broadcasting, where were you?

NEUBORNE: Oh, I was in favor of the Fairness Doctrine. It’s … you know, it’s amazing to sit here in 2010 and almost to say to people who, for whom this would be a, an unbelievably alien idea … Once upon a time, Virginia, there was something called “The Fairness Doctrine” and the Fairness Doctrine said that a television station, because the television station was really powerful, had a duty not just to be Fox, not to be, you know, a conservative echo chamber spitting out the same stuff. Or the Liberal stations that do the same thing. Not to just throw out ideologically tinged stuff, but had a duty to be fair. Had a duty … to say what they thought … but also to make sure that somebody else got a chance to say what they thought. And that … and so that what would come out over the airwaves was a, was a rough blend of the various ideas. That went out the window. The First Amendment knocked that out … fifteen, twenty years ago …

HEFFNER: Well, Ronald Reagan first …

NEUBORNE: Well, he took it out … he took it out. And then the Supreme Court’s never formally abandoned it. In fact they upheld it, first.

HEFFNER: Unanimously.

NEUBORNE: Yeah, Red Lion. Upheld it back in the late sixties. But I think if he came up now they would, they would invalidate it.

HEFFNER: Because they were using the multiplicity of channels or the lack of …

NEUBORNE: Exactly. Exactly.

HEFFNER: … channels.

NEUBORNE: The rationale in those days was that there was only one …

HEFFNER: Scarcity

NEUBORNE: … television and now they argue that the Internet is somewhat … and maybe its right, maybe it’s wrong. But we lost something because now, now what people do in this country is they dial in to hear what they want to hear …

HEFFNER: MmmHmm.

NEUBORNE: So, so the Conservatives dial in, and they, and they, they get a steady diet from Fox about what they want to hear … I dial in to Rachel Maddow and get a steady diet from Rachel about what I want to hear and nobody ever hears anything that challenges them. And it’s a shame. So, it’s too bad, the Fairness doctrine was a good idea.

HEFFNER: And where would your First Amendment proclivities take you now, were the First Amendment to be …

NEUBORNE: Oh, I would be …

HEFFNER: … an issue again?

NEUBORNE: I moved on the First Amendment from being someone who thought that … I’ll call it a speaker centered world where, where the First Amendment was all about reinforcing the dignity of the speaker. I’ve moved to a much more functional idea of the First Amendment that I call much more “hearer” centered.

And I ask … and I now believe … you know, I may be wrong, but I mean this is what happens when you get old … sometimes you change your mind.

I now believe that we don’t pay enough attention to the hearer in the process. And that hearers are just as … have the same amount of dignity that speakers do and that they’re crucial participants in the process. And so in a hearer centered world, I would accept more regulation designed to make sure that the hearers got a broad array of information, got what they needed to be good citizens. Got what … it’s, it’s … in some ironic sense … we got it right in commercial speech.

Now, here’s something that we didn’t have a chance to talk about 10 years ago. But I remember sitting in my office at the ACLU in 1972. And calling my colleagues together and saying, “I’m really nervous about the First Amendment.” I said, I looked at my client list … my client list consists of two Klan members, a Nazi party member, two guys from the Communist Party and one kook who wants to, you know, give a naked lecture in, in Central Park.

I said, “How many times can we go to the well for people like that and get the courts to protect us. I said we need a better class of victims. We need a better class of speakers.

And so what did we do, we went to an old 1940 ACLU policy on commercial speech. And we said, “if we can protect commercial speech, we can persuade corporate executives that they’ve got a stake in this, that there’s a reason to care about robust First Amendment.”

HEFFNER: So you’re to blame.

NEUBORNE: (Laughter) I, I … you know, I was thinking to myself the other day … I’ll make a deal … I’ll make a deal …

HEFFNER: (Laughter)

NEUBORNE: … give me back my democracy … it was the sorcerer’s apprentice … we gave them a little bit, they came back for more, they came back and then in Citizens United, they came back and they ate the whole thing. But I would like to roll that back a little bit, by saying that we had it right the first time in commercial speech. Because commercial speech is all hearer centered.

Commercial speech says the corporation doesn’t … that the advertiser had no rights, the consumer has the rights. So false and misleading advertising isn’t protected. Billboards can be regulated for aesthetics and for all sorts of things.

And we have a doctrine that gives consumers vast amounts of information, but doesn’t completely tie our hands. Why? Because it’s hearer centered. And I think we should start importing some of that back into the political anesthetic.

HEFFNER: Well, what happened to that “hearing centered notion”? That part of it?

NEUBORNE: Well, it fell off the table. I mean, uhmm, uhmm … although, although I tell you … ironically Justice Kennedy claims to believe in it.

I mean if you look carefully at his Citizens United opinion, his Citizens United opinion is not about … he says the reason these big corporations should be able to speak is not ‘cause they necessarily have souls or they’re dignified.

But because they have information that will be helpful to hearers. And I’m afraid what he did is he made something that I call the fallacy of random distribution.

He assumed that corporation were randomly distributed speakers. So that they would be putting out all sort of different kinds of information. If I believed that I would think Citizen United was right. Because all we would have done then was to dragoon a bunch of very rich people into putting out more information for the rest of us to hear.

But, in fact, corporations don’t function that way. They function as short term profit maximizers. And they speak, not because they believe in anything. They speak because it’s going to get them more money in the short time. That’s what they say.

HEFFNER: Do you think this was innocence on …

NEUBORNE: Yes.

HEFFNER: … Justice Kennedy’s part.

NEUBORNE: Complete. Complete innocence.

HEFFNER: He didn’t know what a con man is?

NEUBORNE: Complete innocence. He believed … I mean … I mean I don’t know him all that well, but I, you know, been … watched his career, read his opinions. He believes deeply in the First Amendment. He believes deeply in speakers. He believes deeply in the ability of hearers to be able to make their own mind up. And I think he thought he was advancing …

HEFFNER: Free speech.

NEUBORNE: … them all … yeah, when he made this decision. Now I won’t say the same thing necessarily about the other Justices. But I think Kennedy was absolutely principled in what he did.

HEFFNER: And they could count on that …

NEUBORNE: Listen …

HEFFNER: … principled ….

NEUBORNE: … listen they, they, they … there’s a reason why they gave him the opinion.

HEFFNER: All right. Well, but that’s an old device, isn’t it?

NEUBORNE: Sure. Sure. I mean the major power that the Chief Justice has is … when he’s in the majority … is to assign the opinion. And the, the usual … the usual wisdom, the conventional wisdom is you usually assign the opinion to the guy that you’re least, least sure of on the majority … in the majority … to make sure that you hold him. Make sure you hold that fifth vote. And I think that’s just what happened here.

HEFFNER: Do you feel that the courts are going to play a larger and larger role in our lives?

NEUBORNE: Well … that … a lot depends. I think that the current Chief Justice stands for a powerful movement in the country that would like to change a lot of what the courts did during the Warren years. And even perhaps …

HEFFNER: You mean substantively?

NEUBORNE: Substantively. You know, reverse a lot of the criminal procedure decisions, change some of the equality stuff. Change some of the due process. But most importantly change a lot of the structural material … the Federalism decisions. I think these guys, what they really want to do is undo the New Deal. They want to go back to Roosevelt and they want to undo a lot of the structural changes in government that Roosevelt put in. The strong administrative state. The very powerful Federal government that can operate nationally. And that’s where real change could happen. Real change could happen if, if they get a consistent five votes and can begin to undo the structural mechanisms by which we operate.

I also think they’re going to do one other thing, but I actually don’t think … well …

HEFFNER: Share it with me.

NEUBORNE: … they’re going to … they’re going to change the religion stuff. The religion clause cases that we fight over all the time about how much assistance government can give to religion.

I think there’s a growing movement to say that, that the Warren court got the establishment clause wrong. Because what the Warren court said is the establishment clause was about building a church … a wall between church and state that said that the government couldn’t support religion itself as an idea as opposed to atheism or secularism.

I think the current … there’s a current movement on the court to say, “No, no, that’s wrong. What the establishment clause says is you can’t choose one religion over another religion. But if treat them all equally, then you can aid religion as an idea.”

HEFFNER: How do you feel about that interpretation?

NEUBORNE: I’m nervous about it because I believe …

HEFFNER: No, no, I don’t mean about its success. But if you were a jurist …

NEUBORNE: HmmMmm, there’s power in it. There’s power in it.

HEFFNER: That’s a frightening thought, isn’t it?

NEUBORNE: Yes, there, there’s power in the idea. Because actually it’s been the law for longer than the, than the Warren court law has been. And the … my risk, my fear is … I, I have a theory of the religion clause … that I call the theory of divine madness.

The theory of divine madness is that the Founders deeply respected and understood the religious impulse, that this is a tremendously powerful impulse in the human spirit.

And so they said a person in the grip of a religious impulse can’t control himself. And therefore we’re not going to use Jeremy Bentham and cost benefit analysis and democracy to work out disputes.

Most of the disputes … if you and I disagree about where a road should be, then we argue about it and we have democratic idea and we build a road that way.

But if you and I disagree about, about God, we can’t compromise on that, not if we really, not if we’re both true believers. Not if we’re in the grip of divine madness.

And so the establishment clause says if you let one of these guys get hold of a government, they can’t stop themselves, there’s no way they can stop themselves, they’re going to do God’s will.

Look at … all you got to do is look at the Middle East. They’re going to do God’s will.

Equally, if, if, if they’re private citizens and you tell them to stop worshipping, they can’t do that either. So, so what we should be doing is saying treat these people as though they are under some sort of spell. And don’t let them get their hands on government, but don’t punish them for what they do privately. And that’s my theory of the religion clauses. Which is very different from this kind of theory that says, oh, it’s okay, open the door for religion as long as you treat all the religions equally. They’ll loot the Treasury is what they’ll do.

HEFFNER: What do you mean?

NEUBORNE: Well, I mean they, they won’t know when to stop.

HEFFNER: Oh.

NEUBORNE: The moment … the moment you give them a chance to say that public funds can be used to deal with religious activities … when, when is enough enough when you’re a true believer and think that God wants you to do more?

So, so they will … I mean once you open the door to that I think you can’t close it again. And so that’s what makes me nervous about the current …

HEFFNER: Because you think …

NEUBORNE: Yeah.

HEFFNER: … they will open the door.

NEUBORNE: They will open … well, you know, they opened a little bit already. I mean they had this silly case, I think, about the cross in the dessert …

HEFFNER: Yeah.

NEUBORNE: … you know, I once described it to my students was “You know, if a cross fell in the desert ands there was nobody there …

HEFFNER: (Laughter)

NEUBORNE: … you know, would there be a cross?”

HEFFNER: (Laughter)

NEUBORNE: So well, they had this cross out in the desert. Kennedy writes an opinion and says, “Well, it’s a cross, but it’s not really religious”.

Now, that’s … you know, I, I respect him, but that’s … you know my father fought in World War II, the notion that a cross is being used to honor his memory, when he thought the cross was a symbol of oppression against the Jews, is really extraordinary.

It reminds me … I used to say there there’s something called a “two plastic animal rule”. The two plastic animal rule is that you can have crèche at Christmas time on the courthouse lawn, but only if you add two plastic animals of sufficiently bad taste so that it is no longer a religious symbol, but a secular symbol.

So if you have two reindeers, you know, that’s okay. That’s crazy. To Disney-fy religion is crazy.

HEFFNER: I will be watching for the reindeer …

NEUBORNE: (Laughter)

HEFFNER: … and I’ll be thinking about this day in which … last week, this week, there have been more ideas spewed out by you and good ideas in the course of these two 30 minute programs than I’ve heard in a long, long time, for which I thank you very much, Burt Neuborne.

NEUBORNE: Thank you, Richard. A decade from now? Is it a deal?

HEFFNER: A decade from now. Less than that.

NEUBORNE: Okay.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.