Thursday, January 28, 2010

In which we explore the consequences of equating money and speech.

The Supreme Court ruled recently that, since money is speech and corporations are people, restricting corporate spending on electioneering communications is a violation of their First Amendment rights. This made me think of another fairly recent case, which does a great job of showing the consequences of that sort of approach.

So the newsroom staff of the Santa Barbara News-Press decided to unionize. The bosses there started doing the worst kind of union busting -- suspending workers for legitimate, routine organizing activity, forcing themselves into labor meetings uninvited, etc. The employees brought this shit to the National Labor Relations Board, who backed them up completely.

But a district court found that in this case, the workers' right to organize didn't matter. See, workers' right to organize is a statutory guarantee, and in this case, the courts found that it conflicted with a constitutional guarantee. That's because the original source of the controversy had to do with management's intervention in editorial decisions, and compromises of journalistic integrity. And journalists' decision to organize to protect their right to do honest journalism from these kinds of attacks -- to protect, you might say, their right to free speech -- constituted an infringement on the News-Press's First Amendment rights.
Respondent argues that by preventing Respondent from disciplining employees engaged in such activity, the proposed injunction in its entirety infringes on Respondent's First Amendment right to maintain its editorial discretion. In so arguing, Respondent takes the view that a newspaper has a First Amendment right to retaliate through discharges and other standard disciplinary tools against concerted or union activity demanding, in part, the ceding of that newspaper's First Amendment-protected editorial discretion. (source)
In other words, the right to freedom of speech is really the right to absolute control of speech made with one's property. This gives you the right to use what are widely accepted as coercive, unfair and intimidating methods to make sure employees say what you want them to say -- no matter what statutes may say to the contrary.

I can't speak for the framers of the First Amendment -- most of them were pretty squarely in the Lockean camp that saw one's property as an extension of one's person, and it's pretty clear that "freedom of the presses" did not mean, for them, freedom of access to presses by people who did not have the resources to buy them. But it is ironic that a provision that was intended to prevent the censorship and bullying of writers is being used now to protect the censorship and bullying of writers.

I'm really troubled by the fact that this interpretation of "freedom of speech" explicitly values the opinions of rich people more than the opinions of poor people, to the point of enabling rich people to control the speech of poor people.

See, when we interpret the right to free speech as the right to use private resources to promote speech -- thus implicitly tying the right to free speech to the ownership of capital -- we're not privileging freedom of speech per se. We're privileging freedom to coerce poorer people to deliver a certain kind of speech.

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