This article originally appeared in the spring 2011 Life and Letters magazine, a publication of the College of Liberal Arts.
With a record $2.4 billion spent by candidates in the last U.S. presidential election, the Free Speech Dialogue, a panel discussion held in February, delved into the controversial topics of how money complicates political speech and who is entitled to First Amendment rights.
“I would like students to walk away with a deeper understanding of what free speech means and why it’s so valuable,” said Tara Smith, BBandT Chair for the Study of Objectivism and professor of philosophy at The University of Texas at Austin. Smith launched the series, with dialogues addressing specific free speech controversies to be held once each semester, in hopes that they will “encourage serious, ongoing thinking about these issues.”
Smith moderated a panel of free speech experts whose opinions ran the gamut: from embracing individuals’ rights to band together to spend money on speech for or against candidates, to advocating for campaign finance reform to level the playing field, and differing on the role that government and corporations should or should not play in the equation. The panelists addressed just who or what should be entitled to freedom of speech and how money affects the political landscape.
Burt Neuborne, Inez Milholland Professor of Civil Liberties at New York University School of Law and legal director for the Brennan Center for Justice
For 45 years, Neuborne has been one of the nation’s foremost civil liberties lawyers, serving as legal director of the American Civil Liberties Union from 1981 to 1986. He has litigated the constitutionality of the Vietnam War, flag burning and the release of the Pentagon Papers. He’s won eight of 12 U.S. Supreme Court cases he’s argued. He even made a cameo appearance in the 1996 film “The People vs. Larry Flint.”
Neuborne discussed the need for campaign finance reform. He argued that money has too much influence on who wins elections — categorizing elections as auctions.
“There is an assumption that spending money is the same thing as speaking,” Neuborne said during his remarks. “What facilitates speech should not be as protected as speech.”
Steve Simpson, a senior attorney at the Institute for Justice, Washington, D.C.
Simpson litigates free speech cases in state and federal courts and is lead counsel in SpeechNow.org v. FEC, a challenge to federal campaign finance laws.
He argued that individuals have the right to freedom of thought, saying individuals can choose where they get information, and what to believe or not; anything else — including limiting campaign spending — is censorship.
“There is no way to speak to a large audience without a large amount of money,” said Simpson during his remarks. “Money buys you the microphone, but it doesn’t guarantee you have something intelligent to say.”
Adam Liptak, Supreme Court correspondent for The New York Times
In addition to covering the Supreme Court, Liptak writes a biweekly column on legal affairs, “Sidebar,” for The New York Times. Before joining the paper’s news staff in 2002, he practiced law in the New York Times Company’s legal department.
Liptak proposed the question: “How paternalistic do we want to be in a democracy?”
He pointed out both some pros and cons in the landmark Supreme Court case of Citizens United v Federal Election Commission, a recent 5-4 decision, which ruled that corporations have free speech rights to contribute money to political campaigns. Liptak did favor more disclosure in political speech in regard to advertising and money spent, observing that he likes to know who is doing the talking.
In an interview after the event, Smith was asked about her own views on unions’ and corporations’ involvement in campaigns. “It is individuals who have free speech and when those individuals are voluntarily joining together — be it in a private organization or corporation, whether for political purposes or economic or to establish a newspaper or Web site — they keep those rights.”
“I don’t think individuals gain additional rights by virtue of forming groups or spending money, but I don’t think they lose their rights on those grounds, either.”
As for the panelists at the Dialogue, there was one question on which all agreed: when asked if they would rewrite the First Amendment in any way, they unanimously agreed to leave it alone.
The Next Dialogue
The next dialogue will be Tuesday, Sept. 27, 2011 and will focus on inflammatory speech, considering when, if ever, either the extreme offensiveness of certain expression or the provocation to violence could constitute grounds for restriction.
“Traditionally, the whole idea behind the First Amendment is that speech is different from conduct,” said Smith. “That is why we specifically designate freedom of speech. We outlaw all kinds of action or conduct that people take, but we hold that speech, simply as such, is different; it should be free.
“The basic idea is that words, by themselves, can’t deprive you of your freedom,” she added. “They can’t violate your rights. Over the course of the series of dialogues, we’ll be exploring how this properly applies in the hard cases.”