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Geoffrey R. Stone: Is Money Speech?
[Quote]:
Although the critics of Citizens United might well be right to condemn it and to call for a constitutional amendment to overrule it, they are misguided in their reliance on the refrain that "money is not speech." Of course, money is not "speech." Money is money, a car is a car, and a ribbon is a ribbon. These are objects, not speech. But all of these objects, and many more besides, can be used to facilitate free speech.
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Like a car or a ribbon, money is not speech. But when government regulates the use of money for speech purposes, it implicates the First Amendment. Suppose, for example, an individual at an Occupy protest burns a dollar bill to convey her disdain for corporate America. A dollar bill is not speech, fire is not speech, but a government law prohbiting any person to burn money as a symbolic expression of opposition to corporate America would surely implicate the First Amendment.
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This is not to say, however, that the government cannot constitutionally regulate the use of money in politics. The fact that an object is used to facilitate speech does not mean that it is immune from regulation. The use of a loudspeaker is speech, but the government can regulate the decibel level. Burning a dollar bill for expressive purposes is speech, but the government can prohibit anyone from doing so near an open gas line. And the same is true for campaign contributions and expenditures. When the government attempts to regulate the use of money for expressive purposes it implicates the First Amendment, but it does not necessarily violate it.
If the critics of Citizens United and the advocates of a constitutional amendment to overrule it want to be taken seriously, they must move beyond superficial slogans and focus on the real issue at stake: When should the government be allowed to regulate political contributions and expenditures — even if they are speech?
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The core issue is not the money in political advertising. It’s the lack of critical thinking ability in enough of the voting public so that it has an effect. Those not instantly on guard when an appeal is made through the emotions (hokey sinister background music) instead of through reasoned argument are those that the framers of the Constitution hoped we would not become.
How many corporate dollars would be wasted if there weren’t minds to be bought?
How many non-political advertising dollars would be spent if advertising didn’t work? I agree with you in wishing that voters would be much more analytical, critical, independent-thinking. It would help a lot. But advertising does work and has many techniques beyond the raw emotional spoofing–for one, endless repetition has an impact by itself. The money will flow to whatever works on the audience available. If it were a rational audience, you’d see lots of semi-rational ads based on “facts”.
@Desiato – advertising does work and that is unfortunate. If people were educated more, its affect would be muted. I draw your attention to http://www.nytimes.com/2010/04/27/business/media/27adco.html
and this US gov site http://www.admongo.gov/ which teach kids how it works and how to defend themselves. To me it should be remedial education to all adults.
As I said, I’m completely in favor of encouraging people to be independent and critical thinkers. It’d be great if people, especially kids, learned how they’re being manipulated by advertising.
BUT that’s separate from the fact that I think advertisers have an incentive to continually find new ways to influence people. They’ll adapt.
A more interesting question to me is whether (& what) regulation is compatible with the First Amendment. There’s an expectation in the U.S. that each voter get a roughly equal vote, but not (yet) that each citizen get roughly equal means to speech.