Burt Neuborne

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

VTR Date: August 7, 2010

GUEST: Burt Neuborne


GUEST: Burt Neuborne, Esq.
AIR DATE: 08/07/2010

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

And this is the third of an almost unprecedented series of three successive programs with the same guest.

Not totally unprecedented, however.

For in 1994 we did a three-part series on press matters with Max Frankel, then recently retired as Executive Editor of the New York Times.

And in 1997 I conducted just such a series of three successive Open Mind conversations with none other than my guest today.

For he and I seem fated to talk endlessly about money, media and free speech matters. Appropriately, of course, for Burt Neuborne is 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.

Now in our last two programs Professor Neuborne has been parsing this whole matter of our courts treating corporations as individuals, presumably endowed with the First Amendment rights of real persons.

Indeed, relating them to wealthy corporations, I’ve titled these Open Mind conversations with a question: “Money talks…but can it claim the right of free speech”…as, of course, individual Americans do.

Well, my guest seems to think not…and earlier in this series he said a lot that I’m going to quote now, “A hundred years ago the country had the same question before it, only it was in the context of self-incrimination. The question in the early years of the twentieth century was whether corporations are going to have the right of self-incrimination, the same kind of right to avoid self-incrimination that everybody does. That ordinary people do.

And the Supreme Court said, “Absolutely not.” They said, “Corporations have no souls, they have no conscience, they have no spark of the divine.” The purpose of self incrimination…” he went on … “is to say that some one person shouldn’t be put into a position where his or her dignity is so compromised by either having to lie or to incriminate themselves.

Corporations, he said, don’t have that kind of dignity. And the courts said, “Absolutely not”. And that’s still the law today. Corporations do not have Fifth Amendment rights.”

Yet, and I’m speaking now, as with the Fourteenth Amendment in the post-Civil War era, now very much with the First Amendment, lawyers representing America’s corporate interests seem to be telling a different tale…one that may well prevail in any number of areas.

So that I’d like to begin this last program in our series by asking Professor Neuborne about the specifics of this whole corporations-as-individuals-endowed-with-First-Amendment-rights argument.

We know what’s happened in the campaign contribution area. But what about Big Tobacco, Big Securities Rating Agencies, Big Drug Companies, and so on? What’s the future going to hold for them in terms of First Amendment.

NEUBORNE: Well, I think actually there’s going to be a big division. I may be wrong, but I think there’ll be a division between political speech … where corporations will continue … as least into the foreseeable future to have significant First Amendment rights so that they’ll be able to spend money on campaigns. They’ll be able to spend money on advertisements about political issues. Just the way an individual will.

But I doubt that corporations are going to be able to expand their ability to speak in what I call the “economic sphere” as opposed to the “political sphere”.

Advertising, Food and Drug Administration, Securities rules. They have some rights, there’s no question about it. The court has recognized that there is something called “commercial speech”.

But they made a huge difference. And the huge difference, Richard, is the difference between looking at it from the hearer’s point of view and looking at it from the speaker’s point of view.

They look at political speech from the speaker’s point of view. So whatever the corporation wants to say, corporation gets to say.

But when they’re talking about Big Tobacco … advertising tobacco company or pharmaceuticals advertising. Or people talking in the Securities market about the derivatives or the bonds that they want to sell.

There they ask “Is it good for the hearer?”. Is the hearer going to be mislead? Is the hearer going to be hurt by what the, by what the speech says?

So we have, in fact, in this country, two First Amendments. We have a speaker centered First Amendment and we have a hearer centered First Amendment. And we don’t have a particularly well developed switch that we throw for when we use the speaker centered and when we use the hearer centered, but a rough proxy would be politics … you get the speaker. Economics you get the hearer.

HEFFNER: Now is this, Burt Neuborne, my good friend, whistling in the dark?

NEUBORNE: (Laughter)

HEFFNER: Wishful thinking?

NEUBORNE: Well, there are many, there are many dark corners I’ve whistled in in my life. But I think … no … I’m fairly confident about this. The … up until … up until … up until the 1970s there was no such thing as commercial speech.

In 1940 the Supreme Court thought about it for the first time when some company said, “Hey we have the right to advertise, an advertisement to speech and there’s no way the government can regulate us”. And the, the Supreme Court said, “No.”

This is part of this whole notion about dignity. They said, “Look, political speech, aesthetic speech, that’s the speech that, that, that resonates with the dignity of the human being.” Selling soap is not dignity. Selling soap is part of your … your economic life and we can regulate your economic life, we can’t regulate your political and your aesthetic life. And that was the law from 1940 until the early 1970s …

HEFFNER: And then?

NEUBORNE: And then in the 1970s the Supreme Court swung over and said, “Wait a minute, there is a commercial market out there … with people waiting to buy goods. If they get accurate information about the nature of the goods they buy, they’ll be able to have a more efficient market.

And so, in order to enhance the efficiency of the commercial market, the Supreme Court said that people could advertise. And the early cases were excellent cases for that.

The early cases, for example, where the ability to advertise prescription drugs. Before the … before the, the ban on the advertisement of prescription, prescription drugs, you essentially had price fixing. Because if you couldn’t advertise the drug, then you couldn’t advertise the fact that you were willing to sell it for less than someone else. And it was price advertising that was …

And so you had essentially a fixed market in the drugs. Once the speech came out, that market was broken. At least the, the price fixing was broken and the prices dropped.

Now, of course, the drug companies figured out ways (laughter) to, to cooperate and keep the prices up in other ways …

HEFFNER: So what’s the argument going to be now?

NEUBORNE: Well, the argument now is that it still helps … it’s important for people to know the, the kind of information. But if the information hurts … for example, if you put out false advertising …


NEUBORNE: … hmm, hmm… the Supreme Court has held false advertising gets no protection. Now false political speech gets protection. Because of the nature of the, the dignity of the individual.

If I want to run for President on the Flat Earth platform and argue that the earth is not round, it’s flat. And I insist that it’s flat. I can’t be stopped just because it’s clear and objective that I’m wrong because it’s politics and I’m allowed to say whatever I want in politics.

But if I want to sell a flat earth car that runs on the principles of “flat earthness” and is really a bad car and will harm consumers if they buy it, the government can stop me. And I don’t see that changing. I don’t see the, I don’t see the current Supreme Court, embedded as it is in the First Amendment, I don’t see them changing the rules on economic speech.

HEFFNER: “Embedded in the First Amendment”, that’s an interesting phrase … as the court after the Civil War was embedded in the Fourteenth Amendment …


HEFFNER: … to what end?

NEUBORNE: Well, that’s an interesting question. I think … there’s a real divide in First Amendment jurisprudence that we don’t usually see. We’re seeing it now because in the campaign finance area it’s breaking open.

But it’s a divide between two visions of the First Amendment. A romantic vision and a deregulatory vision. I’ve urged this before.

Romantics on the Supreme Court see the First Amendment as a way to create a wonderful world. A world … the ideal world that the Founders thought about … individuals talking to each other, making mature decisions, democracy running that way with a group of equal people making judgments.

The, the deregulators see the First Amendment as a great way to get government out. That’s all. They see it as just another way … it’s one of the Conservative Republican positions.

Any area of American life they think is better if you have less government in it.

HEFFNER: Not security?

NEUBORNE: No … well, not security. Maybe not security. I think you’re right. I think that’s always been one of those strange things that they’re always willing to have the cops come into your bedroom, but, but no where else.

But they would love to get the government out of regulation. They think regulation of the economy is terrible. And the First Amendment becomes this wonderful engine that you can drop down and use as a kind of talisman to say, “No, no regulation here, it violates the First Amendment”.

That’s what they’ve done to the campaign area. The whole campaign area … everywhere else in the world … every other government, every other democracy in the world regulates its campaigns in order to make sure that money doesn’t dominate the process and that there’s a rough level of equality in the ability to have political influence.

Not us. And it’s because the deregulators have managed to get control of the court and have used it as a way to take the government out of, of regulating campaigns.

HEFFNER: It’s interesting to me … you don’t seem as concerned as I would have thought about this two First Amendments.

NEUBORNE: Oh, well, yeah, I am concerned. I mean I’m, I’m … there’s been a change in my life time over this. I mean there’s an interesting …

HEFFNER: In your thinking in your life time?

NEUBORNE: No, no, no. In the way the First Amendment has, has, has, I think, operated in the country. And I’m troubled by it. I’m hopeful it will, it will swing back.

When I was younger … I’m going to put myself back in my ACLU office in 1972. I was … I’d be sitting in my ACLU office … if you took a look at my client roster … the people I represented in 1972 on First Amendment cases … they were all engaged in what I would call de-stabilizing speech. Communists arguing that the government should be overthrown, feminists arguing that the social structure should change. Anarchists arguing this … I mean they were all engaged in de-stabilizing speech. And, and the First Amendment was the engine that protected de-stabilizing speech. Slowly, but surely, over my career, I’ve watched my client roster change.

And instead of outsiders speaking to destabilize … more and more what you get are insiders seeking to freeze. So you get racist speech trying to lock the social structure into the way it used to be.

You get hate speech trying to keep new people out. You get people saying … you get Rupert Murdoch saying you can’t regulate how many companies I own. And therefore I can build a huge press empire with … and media empire with no, with no controls on it.

You get the Chamber of Commerce coming in and saying, “You can’t stop me from spending as much money as I want to buy as many elections as I want.”

And as you predicted a moment ago, soon you’ll have Big Tobacco, Big Pharmacies, Big Oil companies coming in and saying, “You can’t stop me from saying whatever I want in my economic life”.

I think it’s going to stop at the political. Now it could go over into, into the economic. But I think it’s going to stop. The, the, the movement from … to, to stabilizing or freezing will stop. But maybe I am whistling in the dark.

HEFFNER: Bert … do you see this in terms of your reading of the present court majority’s opinions?

NEUBORNE: Yes. I see it actually as a remarkable event on the court. Again, let me go back to when I was even younger. In those days there was a left/right split on the court.

You know, there were the Black and Douglas folks and then there was the Harlan conservatives. The Liberals were almost always on the side of free speech. The Conservatives tended to be very skeptical about it.

A watershed moment in American First Amendment history happened in 1987 during the flag burning cases.

HEFFNER: Mmm, mmm.

NEUBORNE: When the Left and the Right came together on the court. The … that was a five/four case but people forget that it was three Liberals and two Conservatives that made, that made the majority. It was, it was Scalia and Thomas that created the, the majority in the flag burning case.

At that moment the Romantic Left of First Amendment, the Liberal First Amendment … and the deregulatory Conservative First Amendment came together.

And for a long period you had a kind of … you couldn’t lose a First Amendment case in the Supreme Court. If you stumbled over the threshold and uttered the words First Amendment you would win.

And it was because you had this confluence of the Left and the Right. Slowly, but surely that’s coming apart again. And it’s coming apart because the Liberals are maintaining the Romantic idea of the First Amendment. The First Amendment as an aspiration, as a hope of building an ideal setting. Which means that the government has a real role to play in it. And the deregulators are maintaining “keep government out” and in the campaign finance cases the Court broke apart again into the same blocks that I saw when I was a kid. The Black/Douglas block was the Stevens/Ginsberg …


NEUBORNE: … block. And, and the Conservatives … only now they’ve changed sides. It was the Liberals who were saying “regulate” and it was the Conservatives who were saying “no, the First Amendment says you can’t”.

And so, it was like … it’s like one of these elaborate pas de deux over, over fifty years where the Liberals bow to the Conservatives … the Conservatives bow to the Liberals (laughter) and they cross over.

HEFFNER: So I needn’t … I was going to change, in fact, the title of this, this series from what we have it now to “Are corporations hijacking the First Amendment as they hijacked the Fourteenth?”. You’re telling me …

NEUBORNE: Well, they partially …

HEFFNER: … stop worrying.

NEUBORNE: Well, no … we’ve got a lot to worry about … they partially hijacked it. They’ve hijacked it for politics.


NEUBORNE: They’re not going to be able to hijack it for economics.

HEFFNER: Are you as concerned about the politics?

NEUBORNE: Yes. Because I think the economics ultimately is driven by the politics. Hey, if I own Congress, they’re not going to pass laws that I have to worry about when I deal with my economics.

If … the real … the real danger is that what we’ve done now is we’ve ushered into this country a political structure in which we are so unweighted in terms of the ability to spend money that you’re going to get the deregulation side.

When corporations speak … a hundred years ago the Supreme Court was right. They don’t have consciences, they don’t have divine sparks. What they have is short term profit maximization, that’s what they are. They’re short term profit maximization machines.

So when they speak it’s to maximize their profits. How do they maximize their profits? By getting government off their backs, so that they don’t get regulated and they can do whatever they want.

So what we’re in for now is a vast avalanche of money telling us in election after election … regulation is bad, government is bad … what you want to have is complete unregulated markets … let us do what we want.

And not only that, during the … during the legislative season when the lobbyist comes up to the guy in the back room and says, “Look I can’t control my boss. Unless you vote this way … I don’t know what he’s going to do in the next election. He’s going to pour vast amounts of money and I can’t stop him”.

And that conversation is going to go on day after day in every state legislature, in every Congress and what we’re going to get is a skewed regulatory system, a skewed politics … skewed toward the wishes of corporate America. And they won’t need this second thing where they deploy the First Amendment to protect themselves against regulation because there won’t be any regulations.

HEFFNER: So the real problem here is money and politics.

NEUBORNE: Absolutely. The real problem is figuring out a way to allow voters to make decisions based upon some … not equality … but some rough notion of hearing both sides in a way that will enable them to make a decision.

If you’re a voter and four days before an election a large corporation can spend an unlimited amount of money … no limitation … no limitation … the First Amendment says anything you want. And they drop it on four days before the election and there’s no way to recover and they do it over and over and over again.

It’s going to change … it’s going to change our politics. It’s going to change the nature of what American democracy is. That’s the risk.

HEFFNER: Do you think there is any possibility that the recent decision by the court which involved the Hillary Clinton, anti-Hillary Clinton commercial is going to be changed?


HEFFNER: Reversed?

NEUBORNE: I hope. First of all it was five/four … it was a …


NEUBORNE: … five/four decision. It was a reach … everybody admits it, even the, even the people who supported it say that the, that the decision was much broader than the facts.

I mean people don’t, people don’t realize that was a case in which less than one percent of the money in that case was corporate money. So they could have held when you have trace amounts of money the First Amendment protects it.

In fact, that should have been protected … there was no reason to go after that particular speech. It wasn’t really corporate speech, but the court used the fact that there was 1% of corporate money to say, “Okay, even if it was 100% and even if it was Exxon spending $84 billion dollars, it’s still protected by the First Amendment.”

That thinking is vulnerable. It’s vulnerable on two levels. It’s vulnerable because precedent, the notion of stare decisis doesn’t protect it. Stare decisis protects only what was necessary for the decision. It doesn’t protect it when a judge goes beyond where the judge has to go. That we call dictum …

HEFFNER: But what protects it? Five votes …

NEUBORNE: Five votes protects it. So, so this is, so this is a very, very fragile majority. This is …

HEFFNER: So where does your optimism come from?

NEUBORNE: Well, my optimism comes in, comes because things change. Courts change. I’ve watched it change in 50 years … in my own practice. I’ve seen the court move. The court will move again.

You have a second Obama term, you have a different court. You have a different court, you have a different case, you have a different regime.

This is not embedded yet in American practice. This is controversial, the decision itself was … is highly, highly problematic. Problematic on procedural grounds because they didn’t have to go there … that far. Problematic on First Amendment analytic grounds because there’s absolutely … because it, it was supposedly good for the voters. That’s what Kennedy’s reasoning was.

Kennedy’s reasoning was … “I don’t care about corporations, they really aren’t dignified people. But they are speech machines and since they are speech machines that’s good for the voters, the more they hear, the better they’ll hear”.

He’s assuming though that they’re going to hear lots of different things. When people begin to realize that all they do is hear one side and one side vastly overspending the other side, I don’t think they’re going to stay with this because it’s so totally inconsistent with the, with a fair democracy. And, again, this is the romantic in me. You show me a wall, I’ll run into it.

But this is a wall I think that if people run into, it’s going to go down, it’s going to fall. We will, we will resort back to the old rule that said that corporations can spend money about issues, but they cannot, on the eve of an election drop vast amounts of money to try to change the outcome. That used to be the law and it will be the law again.

HEFFNER: Money in politics … do you see any, anything on the horizon that indicates that that general configuration is going to be addressed successfully.

NEUBORNE: Well, Stevens spoke out, finally against it. I think that there could be legislation. I mean even under existing law … legislation … even if you keep the Citizens United decision in and you say that …


NEUBORNE: … there’s First Amendment protection. You can 1) require disclosure. Real disclosure. What corporations do now is they give the money to something called the Freedom Fund, or the United States Fund for Free Enterprise and they then spend all the money on the … and nobody knows which corporation made the payment.

HEFFNER: Burt, I’m sorry to put it this way … do you really, as a grown man who has seen so many things in your lifetime feel that disclosure is the …

NEUBORNE: Oh, it …

HEFFNER: … “open sesame” …

NEUBORNE: …. no, no …

HEFFNER: … that so many people say.

NEUBORNE: … it doesn’t, it doesn’t solve everything. But it helps. And here’s why it helps. Ford doesn’t want to alienate any part of the market. GM doesn’t want to alienate any part of the market. They know that the worst thing that can happen to them is to have Democratic cars and Republican cars. Or Democratic oil and Republican gasoline, I mean they don’t want to fragment the market politically. And if everybody knows how much money they’re spending on politics and how … it’s going to inhibit them.

HEFFNER: Do we have any evidence in the history of the world that disclosure does what you believe it can do?

NEUBORNE: Well … it … I think disclosure inhibits some people from doing something that they might otherwise, that they might otherwise do. I think if everybody’s tax returns were public …

HEFFNER: (Laughter)

NEUBORNE: … you’d have …

HEFFNER: I should say with that exception …

NEUBORNE: … you’d have, you’d have, you’d have (laughter) a different type of behavior. When you can do it in the dark, you do it. When you have to do it in the light, sometimes you don’t. So, so I think disclosure does help.

There’s a second, that I think, important one and that’s government contractors. If you do a lot of business with the government, you shouldn’t be allowed, I think, to spend a very substantial amount of money to put your person into office so that that person will then give you a good deal … a better contract back. I mean that’s a, that’s a kind of quid pro quo corruption where you, you spend a vast amount of money to put X into office and then you go into X and say, “Okay, now, now I’d like the contract to pave the roads in the town.”

HEFFNER: In so many places we now even spend a vast amount of money to put judges …

NEUBORNE: I know …

HEFFNER: … in office.

NEUBORNE: … well, and, and the hopeful thing was that the Supreme Court recognized that if you spend $3 million dollars to get a judge elected, the other side can say, “No, no, no, that judge has to get off the court … has to get off the case.”

That’s the Caperton out of West Virginia. So they, they do understand that spending can have that … and there’s a Bill in Congress now that says that if you have more than X amount of government business and you’re a corporation than you can’t make the spending.

That will, that will go a long way to fixing it. And then there’s corporate governance. Corporate governance is significant also. This is shareholders’ money that’s being spent.

And if the shareholders don’t want it spent, or if the shareholders don’t know that it’s being spent, that’s an important governance issue that I think that both state and Federal legislation …

Now, these … these are band aids, Richard, I mean these are band aids until we can finally get the case overturned. But until the case gets overturned these are, I think, are important reform situations.

HEFFNER: You know I’m so interested in your optimism, even though you call these band aids. It was in the last century we did three programs … now we’ve done three programs and this has come to an unfortunate end or, unfortunately, it’s come to its end. I hope we don’t have to wait that much longer for our next trio. And thanks very much for joining me again today, Burt Neuborne.

NEUBORNE: Thank you.

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

And do visit The Open Mind website at theopenmind.tv.

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.