Monday, May 20, 2013

Freedom of Speech and Press are Linked

New Jersey has a governor's race coming up this year, and the question of campaign donor disclosure is surfacing as a campaign issue. Governor Chris Christie has decided not to publish the names of his donors, and his Democrat opponent, Barbara Buono countered with, "Me neither." 

But there are two fundamentally different types of political funding; donations that go to private issue-advocacy organizations and donations that go directly to a politician's campaign coffers.
The second is beyond the scope of this post. But, as to the first, the state has no right to force people to disclose spending related to their speech. It is none of the government's or the public's business who funds what, as long as no one's rights are violated. Granted, there can be a fine line between private groups and politicians' campaigns, which  often work in concert, whether officially or unofficially. 

But, a fine line is still a line, and it is crucial for government to respect it. It's bad enough that so many people don't, but especially people whose occupation's very existence owes to the First Amendment. They should know better.

In an April 8, 2013 editorial, the NJ Star-Ledger strongly defended Fox News reporter Jana Winters, who faces jail for refusing to reveal her sources related to a Colorado case involving the Aurora theater shootings. The editors called the demand for Winters to reveal her sources "a textbook challenge to freedom of the press" that sets a "dangerous precedent."

Just four days later, however--April 12, 2013--these same editors railed against "the influence of big money," calling it "the poison of modern American politics, one that tilts the playing field in favor of those with the most money." Citing ads run by pro- and anti-Christie private advocacy groups, the editors write:

Brace yourself for a flood of shady money in this year’s governor’s race. We’re talking about anonymous donors writing unlimited checks, typically for the most negative style of advertisements.  
The sad truth is that efforts to limit the influence of big money are in a state of collapse. The U.S. Supreme Court has struck down key restraints, the Federal Election Commission has proved to be fatally weak, and both parties have taken advantage of every loophole, saying they cannot unilaterally disarm.    
The best remaining hope is to require prompt and full disclosure. At least then voters will know which special interests are pulling the strings, and can judge candidates accordingly. In its infamous Citizens United ruling, the Supreme Court invited Congress to require disclosure, saying that would not interfere with free speech rights.

The "anonymous donors" the editors refer to are the folks funding the "liberal" One New Jersey and the pro-Christie Committee for Our Children’s Future, both private issue advocacy groups. The editors claim that "the playing field [is tilted] in favor of those with the most money."

I left these comments comments:

Just four days ago, the editors defended Fox News reporter Jana Winters' right not to disclose her sources, calling the Colorado case "a textbook challenge to freedom of the press" that sets a "dangerous precedent." Today, they demand that private advocacy groups disclose their sources. Never mind that the first involves information sources, and the second involves funding sources. The principle is the same, and the contradiction is breathtaking. 

The editors apparently believe that freedom of speech doesn't rise to the same level of urgency as freedom of the press. But, the two are inextricably linked. In fact, you can't have the second without the first, which makes freedom of speech the more fundamental right. 

Never mind the egalitarian nonsense about "big money" tilting the playing field. The only field that matters is the field of law, under which every individual's rights must be protected equally and at all times. The size of the donations is irrelevant. Every individual has an inalienable right to spend his own money, as he judges best, in the exercise of his inalienable right to freedom of speech; so long as his actions don't involve the violation of the rights of others.  Property rights and speech rights are inextricably linked.

"Big money" in no way corrupts American politics, nor is it "shady" if undisclosed. It fosters vigorous debate. The fact that I can't spend as much as the next guy in no way violates my rights or hinders my ability to speak. Every individual is perfectly capable of judging the issues for himself, and has no need or right to know who paid for the ads. Each of us is also free to pool his money with others to take out ads, or donate money to advocacy groups that spread his views. Each of us has many ways to express himself; speak to friends, family, or co-workers; write letters-to-the-editor; participate in on-line forums; form ad hoc advocacy groups, etc. There is no "tilt" in the playing field, as long as all individuals are free to express themselves in whatever capacity available to them, make up their own minds on the issues, and vote their own conscience

It's one thing to require politicians to reveal the source of their direct campaign contributions.  It something else entirely to require private advocacy groups or individuals to reveal theirs.

Any law that in any way restricts rights-respecting private citizens' freedom to spend their own money, including laws requiring disclosure, is immoral and a violation of free speech and press rights. Remember, just as the editors warned four days ago that "This time it's Fox, but the next time, it'll be CNN,"
 so too, to paraphrase: "This time it'll be restrictions on freedom of speech, but the next time, it'll be freedom of the press." 

"Big media" loves to rail against "money in politics," perhaps because non-press advocacy is destroying the dominance the "big media" once enjoyed in the dissemination of ideas. But, as they do, they are cutting their own long-term throats, not to mention gutting the First Amendment.  

Related Reading:

Campaign Finance: Free Speech, Not Disclosure, is the Main Issue

Citizens United and the Battle for Free Speech, by Steve Simpson


Mike Kevitt said...

Is it ok for gvt. to require politicians, by law, to reveal the source or their direct campaign contributions? If so, I really don't see why.

Mike LaFerrara said...

Politicians are directly accountable to the voters, so it makes sense that voters ("We the people") have a right to know who each law-maker's contributors are. The laws they pass effect everyone. Of course, knowing a politician's campaign funding sources is much less of an issue in a fully capitaliist system, where economy and state are separated, because the potential for corruption is much less.

However, because the line between direct campaign contributions and indirect support through issue advocacacy is so thin, it'd be better to always err on the side of caution and protect anonimity, given the crucial importance of free speech.

But I haven't fully thought this issue through, so I'm not sure.