It’s Like a UFC Battle of Twitter vs. Bumblebee
You couldn’t have come up with a better name for this week’s landmark first amendment Supreme Court case if you had been writing a fictional novel. I was pretty sure we were in trouble when the legendary constitutional attorney, Floyd Abrams, who argued the case, took the time to send me an email.
I’m not sure what the literary style is called when you name the places and characters after things that describe their mood like Pleasantville or Darth Vader, but I keep pinching myself to see if I’m dreaming about Citizens United v. Federal Election Commission. The decision is handed down by Chief Justice John G. Roberts, Jr. at a time when the voice of social media had nearly begun to drown out the voice of the corporation. That didn’t last long.
Reading a court decision is like reading a set of google map directions backwards. It doesn’t make sense to most of us even if you know where you went. I’ll attempt to break it down for you. The decision matters to anyone in business and everyone active in social media circles and if you own real estate in Washington, DC you have reason to celebrate because more lobbyists and advertising execs will be moving in soon. It may prove to be the single biggest court decision relative to freedom of expression since the Bill of Rights was adopted.
Most people don’t know it, but when you establish a corporation’s charter with any state, the state essentially issues a birth certificate. A corporation is viewed by the state and the federal government as essentially human. It can sue in court, be sued, contract and otherwise express itself in the same way that an individual can. What’s most interesting about this however is that the corporation cannot be punished with prison time, or worse with the death penalty even if it kills people.
There is an entire realm of study about this topic. It falls under names such as juristic person or corporate personhood and much of the legal basis is in a case called Santa Clara County v. Southern Pacific Railroad. Progressive radio talk show host and author Thom Hartmann wrote a book titled Unequal Protection that discusses the topic at length. With the advent of the internet and new media, business started investing more effectively in elections which resulted in passage of the McCain-Feingold Act Pub.L.107-155, 116 Stat. 81 on March 27, 2002. It ammended the Federal Election Campaign Act of 1971 and is why you hear the following tag line on political ads; “I’m Dave Harrison and I approved this message.”
Yesterday, all of that changed. Based on the court’s decision in Citizens United v. Federal Election Commission, business can now spend unlimited amounts of money to have their candidates elected. This is where both the irony of the name Citizens United and the importance of social media enter the story. Citizens United was actually the name of the small group lead by David Bossie that produced the political movie opposing Senator Hillary Clinton. If a business wanted to support a candidate, they used to have to register and pass certain tests to determine if they would be allowed, or they could make a soft money donation in such a way as to avoid federal regulations or limits, as by donating to a party organization rather than to a particular candidate or campaign.
The movie is called Hillary the Movie http://www.hillarythemovie.com/ and the Supreme Court case was a result of the movie being blocked from being advertised because it was considered to be political in nature under McCain-Feingold. Although a conservative, Davie Bossie said that he was inspired by the success of Michael Moore’s film Farenheit 9/11. As a background to this case, before Hillary the Movie was produced, in 2005 Bossie said he filed a complaint with the FEC claiming that ads for Farenheit 9/11 were political advertising.
After the case was reargued before the Supreme Court back in the summer of 2009, I reached out to Floyd Abrams the well-known attorney who has been a free speech advocate his entire career to see what he was thinking. I had read over his arguments and one key thing did not make sense to me. When he took the time to write me back, I knew in my heart that this case would change everything. My position was quite simple. The United States Constitution and the Bill of Rights doesn’t give us the right to free speech. It’s not the reason that I can post this blog. Most people say things like “I’ve got my rights!” Well, free speech is not one of them.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;or the right of the people peacably to assemble, and to petition the government for a redress of grievances.
What the documents actually say is that congress will make no law to inhibit freedom of expression. It’s an important distinction. The founding fathers viewed free speech as an inalienable right. One that we got from our Creator. In other words, God made us so that we can speak. We are born with the power to express ourselves and therefore no man or government should make any law that keeps people from expressing a right that was given to them by their Creator. I wrote to Mr. Abrams and asked him why he didn’t use this approach in his argument. When I read his answer, I was fairly sure how the court would decide.
How did we go from a structure where no law can be enacted that inhibits a person from expressing themselves, to a situation where a corporation has the unlimited right to promote the candidate of their choice? It is a legal odyssey that can be tracked by the old adage, follow the money. If you want to know where the executive branch and legislative branch of the U.S. Government are headed, you can simply ask where do the most powerful and well-financed corporations want it to go. The same can probably be said of your local elections and your local influential businesses and individuals with resources to be applied.
I don’t think that David Bossie fully realized that he was riding into the Supreme Court on a trojan horse filled with the Fortune 500. He probably viewed himself as an activist and someone who was trying to counterbalance the success of Michael Moore’s strategy of using the movie genre to affect political opinion. The fact is that innovations such as TV advertising, the internet and the printing press for that matter allow a great multiplier effect. The same can be said for social media and communication tools such as Twitter and Facebook. Technology continues to test our Constitution.
It was the invention of the airplane that made the tragedy of 9/11 and the Patriot Act possible. We wouldn’t have total body scanning if we didn’t have aerospace. The invention of Google Voice and the tracking of our mobility through wireless technologies is already a threat to net neturality against the backdrop of the arguments between AT&T and Google with the FCC. Innovation and treason are more closely related than most people realize. We lose sight of that because today’s public innovation focuses on the Apple Iphone when yesterday it focused on the H-bomb.
Bill Gate’s recent article on Huffington Post brings the innovation issue to light once again. In writing about carbon emissions, he states, “If we focus on just efficiency to the exclusion of innovation, or imagine that we can worry about efficiency first and worry about energy innovation later, we won’t get there. The world is distracted from what counts on this issue in a big way.”
What does global warming have to do with freedom of speech and social media? It’s simple and it’s the same question we are always faced with when attempting to move forward and advance ourselves and society. Does the end justify the means? Is it worth having an internet if a huge part of it is funded by pornography? Is it worth having the right to bear arms, if one child is injured by a careless gun owner? I don’t know the answer and in most cases, I don’t even have an opinion and I’m certainly not as smart as Floyd Abrams. What I do have is the ability to write this post and publish it and for that I’m thankful.
I believed that Floyd Abrams would lose his argument because he tried to argue that once States allow for corporations to take on a human form, then those same states cannot act unconstitutionally by trampling over those human rights. Mr. Abrams believes that this power comes from the state’s power to incorporate. I disagree. I believe it comes from the interpretation of the constitution where the supreme court views a corporation as having inalienable rights because it is a person in the eyes of the law.
When it comes down to it, the corporation doesn’t have a voice. It only has the voice that you and I lend to it as responsible or irresponsible neighbors. We need to know who is speaking for the corporation and those same people need to be held responsible, the management, the board and even the shareholders. Does that sound fascist? I think it does and I’m not a fascist. I’m a blogger, and I can act like Ben Franklin in his Poor Richard’s Almanac or become Franklin’s Mrs. Silence Dogood character.
Any army that goes on a battlefield under a certain flag will have a shield. If they believe that shield will always protect them, they should reconsider the evolution of warfare and weaponry. Modern day “shield salesmen” such as practicing corporate attorneys and the State of Delaware may want remind their customers of the business truism “caveat emptor” ~ buyer beware. Ultimately, I believe this decision will greatly weaken the protection found behind the corporate shield by incensing the twitter mob (also known as the electorate).
Today’s leading commercial, technology and political innovators (think Franklin and Jefferson back then) who are capable of creating the printing press and got a shout out for that piece of equipment in the First Amendment, need to recognize what is empowering modern conversation. It is in even more interactive, real-time and person-to-person than ever before. Employees can talk about their companies and customers can talk back to the corporations they buy from. It’s becoming very difficult to hide and companies that are trying to do so are finding that their business is drying up. That sounds like free market economics to me.
If corporations are people, then why are there none on death row?
Floyd Abram’s argument put corporations on an equal footing with humanity and then positions them head-to-head to fight it out on the battlefield of free expression. His plea to the court that they would see the the difference between one human (a human) and one human (a corporation) was the equivalent of Rodney King’s famous plea of “Let’s just all try to get along” recently repeated by Senate Majority Leadaer, Harry Reid (D-Nevada) http://www.youtube.com/watch?v=5lyJh5e6Xnw Unfortunately that’s not what corporations do. I have been active in several corporations for thirty years. They are designed to win and in this case, just like the next election in your neighborhood, that’s exactly what they did.
How can any person be expected to win an advertising shouting match against a corporation? Thankfully this law will pit many private corporations against entities of equally powerful public interest and the noise will be deafening. What interests me most in this is how the peer-to-peer power of the internet to create connections, raise consciousness and influence public opinion will play out against this background. Ironically it is Citizens United (you and me neighbor) pitted against the election system in the battle for our family’s futures. Unfortunately, most of us will live for less than a hundred years. Those corporations however, (mine included) in all their so-called humanness, have managed to solve that nagging issue of death. Think Latin for corpse… incorporate. It’s essentially the living corpse if you deconstruct it.
An excerpt from my email response to Mr. Abrams.
Thank you for your kind and timely response. I pledge not to engage you further than this one email (today or otherwise) after your certainly long day.
I would have to say that I disagree with at least one comment you made and that is your reference to “the nature of our nation.” Sir, our nation doesn’t have a nature, only it’s people have a nature according to its founders with whom I agree. The very spot where I am sitting was quite recently The Cherokee Nation. That fact alone attests to the durability of any nature attributed to nations and their geography yet its people live on.
When you consider your own strange and wonderful nature and that of your family, as I do mine, I think you will agree. It wasn’t substantively less the words written in the Declaration of Independence itself that declared such a thing and more the signatures of men, and the risk to the real lives those signatures represented that empowered its fidelity to “We the people.”
From a practical standpoint, managing what a state may choose to regulate or not to regulate through statute is no fine point. On a recent trip to the Maryland shore, I was told last week to sign up for a saltwater fishing license and to report my catch to the state even if it was deepwater offshore fishing. Can a state behave in an unconstitutional manner? Indeed they can. Judges in your own state courts fail to inform their juries every day of their right to nullify the law and decide based on the jury member’s conscience as is clearly allowed in our Constitution. Are you able to produce a better example of behaving in an unconstitutional manner than failing to tell the “whole truth.”
Certainly no corporate charter has ever, or will ever, possess the vitality of even the smallest unborn child and its ability to change the world for better or worse, to inspire, destroy or be destroyed against its will. Consider the inalienable right to free speech of the owner of embryonic stem cells as compared to that of a state chartered entity and then convince a jury of our peers that I am wrong.
Going Rouge On the Web
I made the decision over the past few months to do what I call “going-John-Galt-not” (my own Atlas Shrugged twisted version of Sarah Palin’s Going Rogue) by staking a public claim on the web. Much of that decision was based on what I expected to be the outcome from the Citizens United v. Federal Elections Commission case. I have been waiting patiently since September to hear the decision. I launched the http://TradeWithDave.com blog a couple of weeks ago. In light of Justice Robert’s timing, I guess I got the jump on him by a couple of weeks.
Justice Stevens who was dissenting on the decision did write the following; “Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters.”
When it comes to the Rodney King/Harry Reid question “Can we all just get along?” I’m up for that. I would like to get along with you. When it comes to getting along with corporations, even my own, I’m not so sure I trust them; the corporations that is. I was looking at that corporate shield after the Supreme Court’s decision and I think I just noticed a weak spot in it called Citizens United v FEC. In the back of my mind I have to wonder if this is not a rallying cry from the court to the people to wake up and defend ourselves. I also had a vision of Bumblebee, that yellow Camaro in the movie Transformers: Revenge of the Fallen.
I need to be more careful what I say about Bumblebee, he’s nearly human you know. The question has been the same all along; “Bumblebee, what do you want from me?” The answer is simple and it’s the same as in the movie. “I want to stay with the boy.” http://www.youtube.com/watch?v=H8Nun9HGgBw. What creation of the state wouldn’t want to stay with the boy? He’s human you know.
Update: This issue has grown into a huge one over the past year and we have lots of content relating to it here on the site. Here’s a link to all the posts that include Citizens United: http://tradewithdave.com/?s=%22citizens+united%22