Update re Stephen Colbert and PAC:

www.rollcall.com/news/Stephen-Colbert-PAC-FEC-video-205563-1.html?ET=rollcall:e10287:80103659a:&st=email&pos=epol

Today, class, we will deal with that strange position of our time, the legal argument that money, in the context of political donations, is speech; that huge political donations are a form of political participation like other ways of participating; and that corporations are persons and can contribute just like anybody else. You buy—pun intended—this kind of argument? Fine. Then let’s see how it works.

[I hope that my own judgment is clear from the tone of the foregoing, but to make it explicitly clear at the outset, in my judgment money is not speech.]

Let’s set up a simple algebra equation to clarify the legal argument. In this equation, money is speech (actually, only sometimes, but we’ll get to that later):

money = speech

In this world, “Arithmetic is commutative, don’t you see,” Tom Lehrer said. If money is speech, then speech has to be money, right? Yes, I see Socrates over there in the corner, nodding his head in agreement. Good; with me so far:

speech = money

Applying this equation broadly, any citizen worth his salt can substitute a speech for the rent, can pay for groceries by talking at the cash register, can send a novella for the automobile insurance premium. It doesn’t even have to be a good speech or novella. All money of the same denomination is of equal value.

Well, no. We have to limit the speech-is-money equation to politics. If giving unlimited amounts of money to a candidate is good and acceptable, then unlimited talk to a candidate must be. Dollars, or other denominations of money, are all equal, but the more the better; therefore all speeches of the same size must be equal, but the more the better. Putting the same thing another way, if it is of value to a candidate to receive money, the more the better, then it must be of value to the candidate to receive your writing or talking, the more the better.

Or we could try the same speech-is-money equation another way. Since there is no such thing as too much money (in this construct), there is no such thing as too much speech. Coprolalia on the subway is no reason to pull someone in for mental health issues.

Again limiting the equation to politics, if money in political donations is just as acceptable in unlimited amounts, then unlimited volume in political speech must be just as acceptable. Good news for all the selfish slobs or hired provocateurs out there: no matter how loud you yell, or how much you prevent other people including the candidate from being heard, you cannot be thrown out. If it is good for individual citizens and groups to participate in the political process by discussion, then it must be even better, or at least as good, for individual citizens and groups to participate in the political process by yelling. It worked for the Brown Shirts.

Anybody still think speech, in politics, is money? –Yes, yes, Mr. Thomas. Certainly, some speechwriters are paid, the rightwing noise machine generates large amounts of money, and corporations and other entities hire spokespersons. It is easy to find examples of speech that involve getting paid. It is also easy to find examples of saying the wrong thing and then not getting paid. Since, counterfeit aside, there is no such thing as wrong twenty-dollar bills (look up your notes on denominations, above), that’s not looking like a good line of argument. One could go farther on your side of the argument, and bring up the old saying that time is money. Sending money saves the candidate time; sending the candidate your wisdom in words might save him or her time, again depending on content. But once again, all Jacksons and Benjamins are of equal weight.

By the way, the Supreme Court has consistently upheld financial disclosure requirements set by Congress. A federal candidate who receives money is supposed to report it. If the equation of speech to money were applied consistently, a candidate who received your verbal wisdom would be required to report that.*

We agree, one hopes, that even in politics, speech is not money.

speech [not equal to] money

In algebra, the simple equation is commutative: Speech is not equal to money; therefore money is not equal to speech.

money [not equal to] speech

The Supreme Court ruling that political money is in some ways speech came in Buckley v. Valeo (1976). Congress in 1971 had passed the Federal Election Campaign Act, attempting to require public disclosure of financial contributions. From the Federal Election Commission (FEC):

“Following reports of serious financial abuses in the 1972 Presidential campaign, Congress amended the FECA in 1974 to set limits on contributions by individuals, political parties and PACs. The 1974 amendments also established an independent agency, the Federal Election Commission (FEC) to enforce the law, facilitate disclosure and administer the public funding program.”

Among other provisions, the 1974 law prohibited political donations from foreign nationals; donations from federal contractors—although individual employees of contracting companies could still donate, up to the legal limit; and direct donations from corporations, labor unions and national banks—although individuals in those entities could donate. It also set legal limits on individual donations, now $2,400 per person, on campaign committee donations, and on how much a candidate could spend of his own money.

This law was challenged in court by plaintiffs including former GOP Sen. James L. Buckley and former Democratic White House candidate Sen. Eugene McCarthy, who probably got rolled. The argument was raised that limits on campaign expenditures violated First Amendment clauses on freedom of speech and of association. In Buckley, the Court said some yeses, some no. Specifically:

“2. The Act’s contribution provisions are constitutional, but the expenditure provisions violate the First Amendment. Pp. 12-59.

(a) The contribution provisions, along with those covering disclosure, are appropriate legislative weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions, and the ceilings imposed accordingly serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. Pp. 23-38.

(b) The First Amendment requires the invalidation of the Act’s independent expenditure ceiling, its limitation on a candidate’s expenditures from his own personal funds, and its ceilings on over-all campaign expenditures, since those provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate. Pp. 39-59.”

If you get money from someone else, it is a contribution; if you get it from yourself, it is an expenditure. Reasonable enough, certainly—but not much like ‘expression.’ Try the money-is-speech equation here. If someone else talks to you, it is speech, but if you say something, it is not? If you give money to someone else, it is money, but if you give it to yourself, it is a different kind of money? Campaign law generally requires disclosure of “received” and “paid,” with contributions to self or contributions from outside groups, etc., falling into the “received” column.

Regardless of validity, however, at least the self-versus-other construct is simple and consistent, maybe with some touching hope of mapping onto the ancient meum and tuum. But when corporations and outside interest groups get the limits lifted on them, even that distinction is no longer colorable.

To be continued

Note: Eight justices participated in Buckley. Mr. Justice Stevens did not participate.

*Generally candidates are required to report in-kind contributions. If an expert speechwriter, for example, were to produce speeches for a candidate gratis, the candidate should report same. But in-kind contributions are reportable only if they have value—monetary value. So if you call speech money, then you’re in the odd position of saying that some money is not money. This gets close to saying that if the candidate loses anyway, then no reporting requirement applies. Theoretically we apply the law to all candidates, win or lose. Otherwise it is not law.

This 1991 case—a student, Douglas Hann, expelled from Brown University for drunkenly shouting abusive epithets, in the small hours, not a first offense—should never have gotten to the court of public opinion. The student was drunk and disorderly, shouting on university grounds in the small hours of the morning, for which the university was authorized to discipline him and to try to prevent recurrence. The only additional component, employed to make the incident seem murkier than it was, is that he was also yelling ugly things designed to hurt other people’s feelings or to provoke antagonism.

The following comes from the contemporary New York Times report:

“The incident that has again focused attention on these policies occurred about 2 A.M. last Oct. 18. According to a witness and reports in the campus newspaper, Mr. Hann, who was celebrating his 21st birthday, and several members of his [Delta Tau Delta] fraternity were walking down Brown Street to Keeney Quad, a freshman dormitory. Mr. Hann started shouting anti-black comments involving a common obscenity and the word “nigger.” The remarks did not appear to be directed at anyone, the witness said.

When a student in the dormitory opened his window and shouted “Keep it down,” Mr. Hann reportedly shouted “What are you, a faggot? What are you, a Jew?” and an obscenity.

The dormitory student gathered some friends and confronted Mr. Hann. The obscene and biased remarks continued until Mr. Hann was pulled away by his friends. The dormitory student later filed a complaint with the disciplinary council.” (Feb. 20, 1991)

The content of his expression, if you call it that, is not necessarily the chief disciplinary issue. If he had been screaming—in the small hours—lyrics he’d composed to one of the Brandenburg Concerti, or reading a Nat Hentoff column at the top of his voice, the drunk-and-disorderly component of the offense would have been the same. His disruptive behavior would still be subject to discipline, even if the ‘free expression’ was not. The only additional component here is that he was yelling things designed to hurt someone else’s feelings.

“The council, composed of students, faculty and administrators, found Mr. Hann guilty of violating several aspects of Brown’s code of student conduct, specifically the sections involving disrespectful or drunken behavior and those prohibiting racial, sexual and ethnic harassment.

In evaluating the complaint, the council also considered an earlier incident at a 1989 fraternity party in which Mr. Hann called a black student a “nigger.””

There are a couple of further points here. For one, it might be noted that the Times report focuses less on the student’s conduct than on the university’s policies. Here is the lede:

“Douglas Hann may have thought he was just blowing off steam when he shouted abusive words at fellow students at Brown University last fall, but to others his words constituted harassment.

In any case, he was expelled last month, and the incident drew attention to a growing controversy on campuses about codes of behavior that guard civil rights by limiting freedom of speech.”

Given this spin—including the author’s speculation on the student’s thoughts—the article provided an example followed by rightwing commentators surprisingly eager to adopt the much-reviled New York Times as a model. So much for that individual responsibility we hear so much about.

For another, neither social scientists nor the Christian right usually characterize the behavior or expression of someone under the influence of alcohol or drugs as ‘free,’ but the rightwing periodicals/authors eager to beat the drum against universities still adopted this case as a matter of ‘freedom of speech’ on campus. The whole Hann matter is yet another reminder that our friends on the right tend to be strangely absent when issues like binge drinking on campus, or rape on campus, are being addressed. Perhaps their lobbyist funders do not back, or launch, astroturf movements involving health issues endangering the lives of young people.

In any case, this was no example of political guerrilla theater. Hann was not expressing offensive ideas (or any ideas) in the classroom, or in other structured discussion where they should be protected, along with non-violent responses to them. This was on-campus behavior that interfered with the university’s mission of teaching, by adversely affecting the student’s own ability to learn and that of other students around him. Narrow though it might seem to defend education this way, those students did have a contractual right to the education paid for, and the goods and services known as education would be harmed by an official policy of permitting chemically induced disruption. The fraternities themselves regularly join in on calls for discipline and anti-substance abuse measures, and most people wish they received more.

Protected expression may be a challenging topic when it involves unpleasantness or offensiveness, but it is not irreclaimably murky. People have a right to burn ‘the flag,’ meaning a flag, so long as they go out and procure a flag. But no one has the right to come onto your front porch and burn your flag—the flag that is physically yours as well as symbolically yours.* Symbolic ownership is an ownership of expression, and is protected as such for everybody, for those who downplay it, for those who exalt it, and–regrettably—for those who exploit it. Your material ownership of your own flag is protected not in the abstract but in actuality; someone who wants to steal your own flag off your front portico, if only for the purpose of kissing it and waving it at the next parade, is prohibited from doing so. The act of taking your flag is no longer expression; it is theft or vandalism, regardless of whether the taker wants to wave it or to burn it.

A better analogy is some other transaction involving purchase and gesture. Suppose a consumer purchased a garment at some local store, which was then grabbed and stomped on by a drunk, yelling offensive epithets or derogatory remarks against some group, or conversely yelling a highly enlightened critique of consumerism. The remarks would be protected; the grabbing not. No one has the right to rip off your shirt or necktie, even if the latter is that ultimate social ill the clip-on, unless you want her to; expressions about consumerism are protected, but grabbing your textiles becomes something other than expression, like vandalism or theft or assault. Ditto for someone who marks on your clothing without your consent, regardless of the content of the markings.

Call it the Marks-a-Lot analogy

Let’s set aside the hypothetical instances for a real-life example: Mel Gibson engaged in a drunken rant of constitutionally protected content, but he still got sanctioned for his traffic violations. Only the most extreme outlier type of ‘libertarian’ would say (openly) that Gibson had a natural right to drive drunk. Similarly, prostitution may be regarded as a social ill, but nobody has a god-given natural right to become Jack the Ripper; the act of killing transgresses the bounds of expression and becomes murder. Nor does one have a right to rape or to gang-attack a heavy-dating teenager or a sexually active woman or man, even with knowledge or disapproval of her/his social life. Expression is one thing; assault is another.

Expression is protected; violent or invasive actions that may as a by-product ‘express’ something, even something in itself laudable or understandable, are not. If they are violent or invasive of other people’s rights, they are prohibited.

From the Times account again:

“Even some of Mr. Hann’s fraternity brothers called what he did indefensible. But one, a wrestler from Long Island who refused to give his full name, said Brown students had to live under so many restrictions that great tension is created.

“It’s like this place is some special world where there is no such thing as racism,” he said. “Doug just got drunk and exploded.””

The question of where to draw the line between permitted expression and prohibited action is a judgment call, but less difficult to settle in the actuality than it might sound in the abstract. A guy who quotes a rape ‘joke,’ even with a smirk, in the classroom is constitutionally protected. So are the responses. But a guy who targeted a particular individual, or who raised his voice, or who kept up the ‘joking’ in a repeated pattern, has clearly gone beyond expression into harassment or intimidation. The university has to do its duty by a troubled student and by the campus community. The question is how best to do what it is supposed to do.

In this case, Brown’s administration would obviously have been luckier if the drunk-and-disorderly incident had not included a prejudiced rant, the contents of which led inevitably to more rightwing accusations of campus “thought police.”** Unfortunately, that observation leads to the conclusion that if you are determined to get away with drunkenness or other unpleasant behavior, you would be wise to couple it with racist or other ideologically protected language. You are beginning to sound like rather a snake. Fortunately, you are no longer a snake when drunk; the student might well not have been reported by his peers if he had been less insulting to them. In vino veritas, not, but your underlying personality problems will expose themselves if you drink to excess.

Generally that perpetual rightwing stance of calling administrative actions ‘thought police’ or Big Brother gets weird. Universities exist to affect people’s thought. That is their reason for being. The claim that a university has no right to do what it is supposed to do is Orwellian.

The response to the Times report, from Brown University’s then-president, Vartan Gregorian, makes points similar to some above:

“”The Tenets of Community Behavior,” which outline community standards for acceptable behavior at Brown, have been read for more than 10 years by entering students, who agree in writing to abide by them.

The rules do not proscribe words, epithets or slanders; they proscribe behavior. The point at which speech becomes behavior and the degree to which that behavior shows flagrant disrespect for the well-being of others (Offense II), subjects someone to abusive or demeaning actions (Offense III) or is related to drug or alcohol use (Offense IV) is determined by a hearing to consider the circumstances of each case. The student is entitled to an appeal, which includes review by a senior officer and a decision by the president.”

Given Brown’s notable free-speech heritage, the echo chamber attacks may be an example of the tactic, often attributed to former Senior White House Advisor Karl Rove, of attacking your opponent’s strong point.

*Actually, I have to admit that although I am a patriotic American, I would feel a twinge even at seeing the flag of some other nation burned. There would be some back-of-the-mind apprehension that I was being played, along with the gut reaction, This is cheap. People don’t always like to have their gut feelings played on, either with an overt appeal to patriotism or the reverse.

**To this day, Brown is under fire from right-wing thought-police hit squads including the appropriately named FIRE, for its (reasonable) policy on sexual harassment. Brown, of course, is a private university, making forays into its individual marketplace of ideas by the rightwing echo chamber less than consistent with conservative ideology.