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

GUEST: Burt Neuborne
AIR DATE: 07/24/2010

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

And when today’s guest last joined me here back in the 1990’s, 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.

Recently, when the Supreme Court of the United States effectively reversed its earlier position on campaign financing limitations – in the process giving corporations the same free speech rights as individuals – one heard that Professor Neuborne, as a long time leader of the American Civil Liberties Union, protested the ACLU’s then support of that decision. And I’d like to begin today by asking my guest just why.

NEUBORNE: Well, Richard, it’s good to be back. It’s good to have lived long enough …

HEFFNER: Welcome.

NEUBORNE: … to get a second shot at the show.

HEFFNER: (laughter)

NEUBORNE: Well, I think … everyone who knows me knows how dedicated I’ve been to the ACLU. I was the national Legal Director during the Reagan years and I’m still very close to the organization, but they got this one terribly wrong.

This is one where I think they are blinded by a kind of passionate, one-dimensional look at the Free Speech clause that says that anything a speaker does is going to be protected regardless of the effect that it may have on the broader society. And here the effect on the broader society is to endanger democracy itself.

And since I think the real reason for the First Amendment is so that we can have a robust democracy without government censorship, to me it’s terrible irony that the First Amendment all of a sudden stops being democracy’s friend and starts being its enemy here. And so that … I’ve begged them … 22 times I’ve been before the ACLU …

HEFFNER: What you do mean “22 times”?

NEUBORNE: 22 times I have asked the ACLU Board to change its position over the years. They’ve debated it 22 times. I mean I signed the original ACLU position in the Buckley case in 1974. Now I was the Assistant Legal Director, I worked on that case. And I thought it was right. I thought the ACLU’s position, which is to say, “Hey don’t mess with a speaker”, whether the speaker is a corporation, a rich person, a poor person, don’t with a speaker, the First Amendment is too important.

I signed that. And then I watched while money took over American politics. Absolutely took it over lock, stock and barrel … to the point where our elections are better characterized as “auctions” than as real elections. And where lobbyists control Washington and where all of a sudden people were losing faith in the system.

And I said to myself, “There’s something that we have to do to try to control the degree to which money is controlling our politics.

And we have to start by controlling the way very, very powerful concentrations of wealth get to use the money to change the political process to benefit them in the short run, and not the average person.

HEFFNER: Certainly as you saw that, they must have seen it, too.

NEUBORNE: Well, they did see it. I’m glad to say that after 22 times they have changed their policy a little bit. It used to be that the ACLU said “No limits on contributions. That you can’t tell somebody if you have public funding that you have to limit the spending”.

I mean they essentially had a totally hands-off policy. And just last month they changed to say that reasonable limits on contributions are now okay. And if you have a public funding system, you can condition the public funding on a promise by the guy who gets it, not to spend more than a certain amount of money. Now those are two important changes, but not enough.

HEFFNER: And this business of treating corporations as individuals … what about that?

NEUBORNE: Well, I have a morbid fascination with the sociology of that, Richard. It’s really … it’s a fascinating question.

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, 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 is to put … is, is to say that someone shouldn’t be put into a position where their dignity is so compromised by either having to lie or to incriminate themselves.

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

What happened in a century to our minds, to our heads, that allow good judges … and Justice Kennedy who wrote the opinion in the Citizens United Corporate Free Speech case is a wonderful judge, is a wonderful man.

What allows a guy like that to have his head so taken over that when he thinks about corporations, he thinks about them as though they’re human beings as though they have individual, individual souls.

He anthropomorphized them in this extraordinary way, to the point where I was joking the other day, I was saying, “Pretty soon, if it keeps going this way, corporation’s going to be able to adopt you …

HEFFNER: (Laughter)

NEUBORNE: … maybe you’ll be able to marry the corporation. But until then, we just have to be prepared to be screwed by them.” (Laughter) Which is unfortunately what’s happening.

HEFFNER: All right. Now you say, you ask the question, what’s happened? I have to ask you the question because you’re the historian of the law, you know what your own colleagues are thinking. What has happened in this country?

NEUBORNE: Well, I mean what’s happened is both good and bad. The good is that for a very long time the First Amendment was a highly controversial idea. Free speech was a controversial idea …

HEFFNER: In itself … yes.

NEUBORNE: In the McCarthy era it was controversial idea. I mean if, if you look at American history, every time we’ve had a crisis, free speech has been thrown overboard. The … the ink wasn’t dry on the First Amendment and John Adams was locking people up under the Alien and Sedition Act.

Lincoln, during the Civil War, locked up people who opposed the war and put them on trial before military commissions. Labor organizers were arrested throughout the country. If you try to vote or organize in the South to try to assist Black people, you got run out of town.

During the First World War opponents were put in jail. So we’ve always had a soft First Amendment. Now an extraordinary thing happened. In the period of about the 1980’s, there was a coming together of the Left and the Right, both of whom thought the First Amendment was very important.

The Left thought it was important because it thought it was a way to move for reform. They thought that keeping the ideas, always before the population would lead to better government and better treatment of the weak.

The Right saw it brilliantly as a deregulation device. As a device that would take government out of the business of regulating powerful speakers and let them then operate.

It’s why now … we talked about this a decade ago, but it’s even worse now, it’s why six or seven large media companies own everything. I mean everything. They own every television station, they own every newspaper, they own every book publisher. They are now beginning to get into the Internet world, as well.

So that, so that a few very, very powerful speakers control everything. And they realized that the First Amendment was great for them because it’s a way to insulate them from any kind of government control designed to weaken their power.

So what you had, and you know, you know when it happened … in retrospect, historically, it happened in the flag burning cases.

In 1987 the flag burning cases reached the Supreme Court and the five person majority were the three Liberals and Scalia and Thomas, made the second … created the … and it was that coalition of Left and Right that turned the First Amendment into almost an impregnable barrier.

Now, Liberals wished they could go back on that a little bit. They now wish … people like me wish that we could get a little bit more regulation. But the Conservatives consistently use it as a deregulation device and it doesn’t matter whether you’re trying to regulate large television companies or trying to regulate anti-trust in the newspaper area or regulate campaign finance, the First Amendment is the club that they use to beat us with.

HEFFNER: Okay, what’s going to be the tool, the mechanism by which we go back?

NEUBORNE: Well, ahemm, a couple of things have to happen. First, we have to enrich First Amendment doctrine. We, we have a First Amendment doctrine in this country that, that really is consistent of two people … there’s the “speaker” and he gets the white hat. And then there’s the government censor, and he gets the black hat.

And so what we do is we have a, a tendency to view and you can see it in these cases, to view the speaker as being a kind of Promethean hero … trying to speak against the forces of censorship and the censor some kind of either a clown who doesn’t understand that the status quo changes or evil person trying to lock himself into power.

And when the two collide, the speaker always wins. And so we have what I call a speaker centered First Amendment. But the First Amendment universe is bigger than speakers.

There are speakers and hearers and the targets of the speech and the conduits who, who make the speech, and I think what we’re in the process of now, as I see it in the, in the scholarly journals, I hear it in the debates, we’re beginning to develop a richer picture of what it means to have a truly important free speech, robust free speech universe.

So, for example, conduits, the big media companies that control who hears what, they’ve been able to trick the Supreme Court into calling them speakers. But they’re not speakers, they don’t generate the speech. What they do is decide whose speech they’ll carry and whose speech they won’t.

Now conduits, it seems to me, get regulated much different than speakers. Also they’re beginning to say, “Hey, hearers have a stake in this.” Some times a hearer doesn’t want to be barraged with something, or sometimes a hearer doesn’t want to hear only one side.

So the way we’re going to go back on the corporate speech cases, the way we’re going to win the corporate speech cases … eventually, is to persuade the Supreme Court that it doesn’t help a hearer to be overwhelmed with one side of a message two days before the election. The hearer doesn’t get both sides under those circumstances.

And so we have to figure out some way to limit the waterfall of money that cascades down on the heads of a voter two days before the election … telling them only one side of the story.

HEFFNER: But you know, my concern with your answer to my question as to how we’re going to reverse this is that if I remember correctly, it was some time back …20, 30 years was it … Jerome … was it Barron, who talked about a positive approach …

NEUBORNE: MmmHmm.

HEFFNER: … to the First Amendment. And we simply …

NEUBORNE: Yeah …

HEFFNER: … passed that by.

NEUBORNE: We rejected it. We rejected it in large part, I think because it was a different time. Barron … I mean … he was ahead of his time. This is a … I’m glad you remember him. People don’t remember him now and they should …

HEFFNER: I’m so old I remember …

NEUBORNE: Well …

HEFFNER: … everything.

NEUBORNE: … I think that’s great. I mean he was a scholar in the sixties and early seventies who argued the romantic idea of the First Amendment. He said the First Amendment was really an aspirational idea. That would, that would allow information to be transferred back and forth, that would allow weak people to speak, that wouldn’t allow strong people to control the, the dialogue.

And he argued, for example, that newspapers had a duty to file a right of reply, if they attacked somebody and then you wrote in and said, “Wait a minute, how about telling my side of the story.” That a newspaper had a duty to do a right of reply.

I remember … I treated him unjustly. I remember thinking to myself, “Oh, that’s terrible. You can’t tell newspapers what to say.”

Ahemm, and the truth is we lived for a long time saying “It doesn’t matter. The newspaper gets to say what it wants to say.” And you know, for newspapers, I’m not sure it’s wrong.

But when you have massive electronic media … or newspapers all of which are owned by one guy, so that there really isn’t a chance to get a lot of additional information … I’m not sure that Barron wasn’t right.

HEFFNER: And when there’s only one game in town …

NEUBORNE: Yeah. Exactly. Now, in fairness … my critics, people who oppose me would say I’m overlooking something and that’s the Internet. That there is, that there is one institutional game in town, the big guys, the mainstream guys were all owned by the same people. So whether you read a newspaper or you look at a television station or you go to the movies or you buy a buy … you’re … it’s all … it’s all going through the same four or five large media companies.

But the Internet does open up the possibility of huge amounts of information that go out with no ….

HEFFNER: In reality?

NEUBORNE: … control. Well, in reality, but the reality is terrible. Because the reality is there’s no check on these guys. Half the stuff that goes over the Internet is flatly wrong, it’s anonymous, it’s garbage … it’s garbage out and garbage in. People, you know … and, hmm, people think that they’re being … I mean, you know, how many, how many more times is somebody going to allude to the fact that the President is not a citizen of the United States?

I mean the only reason that has credibility is because a sufficient number of lunatics have managed to put it out over the Internet to the point where enough people have heard it that they think …

HEFFNER: Aha!

NEUBORNE: … there must be something to it.

HEFFNER: Right.

NEUBORNE: So, so there is a …there’s a cost. I mean I, I … there’s a delicate balance in any free society between completely untrammeled mass speech and speech that goes through some sort of professional checking mechanism. I always thought that that was the major role the newspapers played.

That because of their sense of duty and sense of mission, they screened information and the information that went out was the information that they thought was valid and ready to print. And I thought that what’s the press clause was all about … to create these private screens.

Now the Internet does away with that. You jump over any, any control factor at all … and any … anybody with a computer becomes a mass speaker.

HEFFNER: So you have to depend upon chaos theory.

NEUBORNE: So it’s good and bad. So, yeah, chaos theory. Or, depend upon the institutional press to screen those rumors and, you know, at least telegraph to us what the stuff is worth reading and what the stuff isn’t. So the institutional press, even in the world of the Internet is still enormously important.

HEFFNER: And disappearing.

NEUBORNE: And they’re disappearing. One, the press is disappearing and two, it’s consolidating to the point where you going to have a unitary press.

HEFFNER: Burt, do you think it’s untrue, do you think it’s barking up the wrong tree to, to say that, as I admit I believe as an erstwhile American historian, that the Founders really where much more concerned with the viewer, the listener … no viewers then … listeners, the audience … they were concerned with the person who was going to vote and who should be well informed.

NEUBORNE: I mean I, I think … and this is, this is purely personal and, you know, I have … I’m skeptical about knowing that the Founders thought. I mean I, I …

HEFFNER: Okay.

NEUBORNE: … I get a little, I get a little … I’ll tell you a great story. When we founded the Brennan Center, we went to the Justice, he was still alive and what we wanted desperately to do was to find some way to honor him and to honor him while he was still able to understand how he was being honored.

And we thought about endowing professorships and building statues and none of it seemed to capture him. So what we thought we would do is give him an institution that would Brennan a place at the table … forever. Even after he died. And so we went to him and we said we would like to set up this institution that will fight for your values even when you’re gone.

And he smiled and he said, “That’s great. I love it. But I, I impose one prohibition on you. And the prohibition is this, that when you’re thinking about what to do, you don’t go back and say, ‘What would Brennan have done?’”. He said, “Because that’s a corrupted form of originalism and I think originalism is terrible. I think everybody has to make their decisions for themselves, in their own time and not go back and pretend that what they’re doing is enforcing somebody else. So he said, “I’m going to be in heaven looking down …

HEFFNER: (Laughter)

NEUBORNE: … and if I catch you guys doing originalism …

HEFFNER: A bolt.

NEUBORNE: … I’m coming back … I’m coming back. So, so I’m nervous about originalism to begin with. One because I don’t … because I’m, I’m not sure I care what a bunch of White guys thought in 1787 who owned slaves and, and subjugated women. I … you know … they were good guys, they were the best of their generation. But it was still a generation that had a limited conception of justice. So I’m not sure I even want to know what they thought.

HEFFNER: Well, I suppose I’m thinking of fighting fire with fire.

NEUBORNE: But … but if … and if I do go back and try to think about what they thought … I, I find that their generation was probably as divided as ours was.

The was the first … the First Amendment, by the way, I’m sure you know this … it’s the first time in human history that these six ideas were put down in the same place.

The six ideas in the First Amendment are … establishment clause which is to guarantee that you don’t have to pay for somebody else’s religion if you don’t like it. Free exercise, which means that you can exercise you own religion. Speech, press, assembly and petition.

No one else ever put those ideas in the same document before. And I think, and if you want to go back to try to re-construct what the Founders think, that’s the half life of a democratic idea.

They understood that what they were doing was building a charter for a democracy. Something that had never been done before. And they knew that it was the First Amendment that would allow that to happen.

That the First Amendment … because think about it for a sec … there’s a, there’s a remarkable inside/out evolution of the First Amendment.

You start in the interior resources of conscience … inside your head … saying, “I don’t believe in this religion, therefore I can’t be forced to support it.”

Then it goes outside, saying “I do believe in this religion, therefore I should be allowed to exercise it and practice it.”

Then it goes even further and says … with the speech clause … “I get to talk about these things with my neighbors and think about secular things I believe in, too.”

Then the press clause says I’m entitled to have some institution that’s going to give me a mass audience so I can get to more people.

Then assembly says once I’ve persuaded the mass audience, we can all get together and do something about it.

And then petition says, once I’ve gotten that far I go to government and I tell them enforce this.

So it’s the half life of a democratic idea. It’s how a democratic idea grows inside somebody’s mind. Is shared with more and more people and eventually becomes law.

It’s inconceivable to me that they thought that that democratic idea was going to depend upon how much money the various participants had. They had a much more romantic, much more idealistic conception of the world that they were building. And that’s what I think we forgot.

HEFFNER: Do you think … you say “forgot” … you don’t mean “forgot” …

NEUBORNE: Well, we lost our way on it. At least five members … five member of the … and we all remember this, you know, when you talk about Citizens United, it was a five, four decision. A bitterly contested five, four decision in which Justice Stevens, for one of the few times in his life actually read his dissent from the bench. He usually doesn’t do that. He was so upset about this case and so passionate about it that he read his dissent from the bench.

And the four dissenters are still on the court … I think Citizens United is a soap bubble. I think we’re going to pop it one of these days.

And I think it’s analytically insupportable because it essentially says the corporations are human beings like the rest of us, and they’re not. It essentially says there’s no difference between spending vast amounts and speaking on a street corner and of course, there’s all the difference in the world.

It was technically inappropriate because the Court reached out for a decision that it didn’t have to make. So much, much of what they say is what lawyers call “dictum”, it’s not a holding, so it can be overruled like that (snaps fingers). If we get another vote, it’s gone.

HEFFNER: We get another vote. What does that mean?

NEUBORNE: Well, there are four people on that Court who are pledged that Citizens United is wrong.

HEFFNER: Right.

NEUBORNE: Five people voted “yes”. The Supreme Court changes, it moves from, from, from time to time. I mean it’s one of the good things about the country. You want the Court to evolve in accordance with the population.

HEFFNER: But think of all the criticism of the Chief Justice.

NEUBORNE: He’s entitled. You know the truth is we lost elections. George Bush was the President, he gets to appoint who he wants. And he appoints somebody like Roberts, he appoints somebody like Alito … we have to live with that and we have to respect their … I mean they’re, they’re well-intentioned they just disagree with us.

HEFFNER: Do you think though they’re disagreeing on specific, do you think that the notion that the new Chief Justice, the present Chief Justice … what was he doing in his testimony before the Senate.

NEUBORNE: Oh, I think he was … I mean he was telling as much truth as Sonia Sotomayor when she was testifying. I mean, uhmm, the truth is they, they do believe … I mean, you know, now if, if I can’t crawl into the Founders’ heads, it’s, it’s hard to crawl into the Supreme Court Justices’ heads … but let me try.

I think they honestly believe that the decide cases in accordance with law and not their politics.

HEFFNER: And this one?

NEUBORNE: Yeah. That they’re not … they’re not just seeing what helps Republicans or what helps Democrats or what helps corporations and what helps labor unions. I think they’re actually trying to be principled. But they have different philosophies …

HEFFNER: Okay. I, I … that isn’t really what I was addressing myself to. I was addressing myself to the question of precedents.

NEUBORNE: Yeah, well … precedent is important. And they did, they overturned two. They overturned a 1994 case that said that corporations couldn’t spend money on politics and they overturned a 2001 case that reinforced and reaffirmed the 1994 case. So they did, they overturned precedent. And that’s a big deal. But you know what. So did we. So did we.

Warren in 1954 in Brown versus the Board of Education overturned Plessy versus Ferguson.

HEFFNER: Only 50 years old.

NEUBORNE: And, and the Brennan … and the Brennan, Warren court …

HEFFNER: Sixties …

NEUBORNE: … when we had … when we had control overturned more Constitutional precedents than any time in history. And you know what, the country was better for it.

I mean they, they, they, they reformed so much of the First Amendment, criminal procedure, equality, reapportionment, none of that could have been done if they felt that they had they … had their hands … were tied behind them and they couldn’t overturn a precedent.

HEFFNER: So that standing in the decision is not, for you, a terribly important quality. Starry decisis …

NEUBORNE: Starry decisis is important. I don’t think … I mean you can’t, you can’t be in the routine business of overturning cases. If you overturn too many of them we lose the stability that we need in the system.

But if a Justice honestly believes that a past precedent … one, was badly reasoned, two, has lost its modern reason for being and third, has been undermined by other cases, which is what Roberts talked about in this case, I can disagree with them on a debater’s stage and we can argue about it.

But if the Justice honestly believes that, I can’t say that the Justice is doing the wrong thing. He’s doing a thing I wish he wouldn’t do, in this particular case. Because I think those cases were well reasoned and important.

But, but I don’t think that you can say that somehow he lied to Congress when he did this.

HEFFNER: You were quoted … I, I want to find out … yeah … and we have almost no time left, so you’re going to have to stay where you are, so we can do a second program.

However, in what New York University Law School Professor Burt Neuborne called a “terrible, terrible body blow to the Court’s institutional standing.” What did you mean by that, talking about …

NEUBORNE: Oh …

HEFFNER: … the Clinton decision.

NEUBORNE: … they, they didn’t need to decide Citizens United as broadly as they did. What’s wrong with Citizens United is not the precedent of the overturning. It’s that there were at least four narrow grounds on which they could have decided that case to protect the First Amendment.

Nobody realizes that … you know, you know what the percentage of corporate money was in that … less than 1%. There was a trace amount of corporate money in the Citizens United funding. And the court … everybody thought what the court was going to say was “If you have a diminimus amount of corporate money from a non-profit corporation, of course the First Amendment protects.”

But they didn’t do that, they used it as a vehicle to reach out … and said … “non-profit corporations with 1% are the same as Exxon”, with $86 billion dollars in the Treasury.

HEFFNER: Burt, hold it, we’ll come back to it for the next program. Thank you for joining me today on The Open Mind.

NEUBORNE: Thank you, Richard.

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.