Stanley Fish has a good blog post at the Times, where he discusses two approaches to the First Amendment’s guarantee of freedom of speech in light of the recent Supreme Court ruling on Citizens United v. Federal Election commission. Basically, the SC ruled 5-4 to overturn bans on corporate political spending, including McCain-Feingold. The case revisited the issue of the free speech rights of corporations — namely, if they have the same rights as US citizens, whom the First Amendment protects. (If you’ve seen The Corporation, you know the corporation is a strange entity with an identity crisis.) Where you stand on this issue may inform your argument of whether it may sometimes be appropriate to limit speech of corporations, especially if you think the First Amendment shouldn’t apply to them. But the corporate angle aside, the SC has realized that it is indeed sometimes appropriate to limit speech: hate speech, speech that incites violence, pornography — restrictions on these kinds of speech have all been upheld. To use a cliche, you can’t shout “fire” in a crowded theater when there isn’t one. The SC has recognized the dangers of speech and the consequences unrestricted speech could bring. One of those consequences lies at the heart of this case: Unrestricted free speech could actually restrict free speech.
Stevens is worried — no, he is certain — that the form of speech Kennedy celebrates will corrupt the free flow of information so crucial to the health of a democratic society. “[T]he distinctive potential of corporations to corrupt the electoral process [has] long been recognized.” […] Behind such strong statements is a twin fear: (1) the fear that big money will not only talk (the metaphor that converts campaign expenditures into speech and therefore into a matter that merits First Amendment scrutiny), but will buy votes and influence, and (2) the fear that corporations and unions, with their huge treasuries, will crowd out smaller voices by purchasing all the air time and print space.
So do we limit the speech rights of certain people (or corporations) to protect the speech rights of others (in this case, a greater number of people)? Is this even a legitimate fear? The majority thought not:
The question of where that discussion might take the country is of less interest than the overriding interest in assuring that it is full and free, that is, open to all and with no exclusions based on a calculation of either the motives or the likely actions of individual or corporate speakers. In this area, the majority insists, the state cannot act paternally. Voters are adults who must be “free to obtain information from diverse sources”; they are not to be schooled by a government that would protect them from sources it distrusts.
Instead of a paternalistic government deciding for us what kind of information can reach us, the SC throws its faith behind the mysterious marketplace of ideas and lets market forces become the arbiter of what we know. And yet, by deciding to invest in the marketplace of idea, isn’t the government still filtering the information we get?
“Faith” in the marketplace of ideas may not be the best term to use. As Fish points out, Oliver Wendell Holmes acknowledged that consequences could be quite bad — but oh well. Still, some part of me thinks that for most anyone who advocates an open and free marketplace, he will need, at his very core, to believe that people will choose what’s good and right, or at the very least, that whatever does happen is what’s good and right. It’s a very passive approach.
…Unlike another country I am reminded of. If you want to talk about paternal governments, the Chinese government seems to take the complete opposite view: no faith in the goodness of the marketplace, and by extension, humanity, but plenty in the goodness of the government. It hinders speech willy-nilly at random points. Two recent — and more humorous — examples come to mind, the “illegal flower tribute,” which became the Internet catchphrase du jour following the 2010 Google Incident, and Han Han’s accidental (but still illegal) “Party Central” reference.
Being in a country so diametrically opposed to the ideas I was brought up to champion is making me more inclined to concede to the principled view and let speech go unfettered. Sure, there is a ton of misinformation and vile spewage in the marketplace of ideas, but most of the time you can find something trustworthy. Not so in China: Ask three different people, whom you would think were reliable sources, and you’ll get three different answers, all of which are right and wrong at the same time. Communication is unclear here, and I suspect the government’s own murky laws governing speech has something to do with it.