Friday, August 5, 2011

Constitutional Distortions: Free Speech vs. Freedom of Speech

When we refer to “free”, what do we mean? In economics, free means to receive some man-made value without cost or payment; i.e., paid for by someone else (nothing that requires productive effort is actually free). In the political realm, however, “free” means freedom of action in a social context; i.e., in the absence of physical compulsion, threats, interference, or coercion from other human beings.

Clearly, there are two separate meanings. When taken together, you get a free, laissez-faire capitalist society: Politically, you may not be forced, from which follows that economically what is received free is only through voluntary means, such as a business promotional, a gift, or charity. Put another way, economic freedom – which means essentially a recognition and protection of property rights – presupposes political freedom. To destroy one, is to destroy the other.

A collectivist tyranny dare not enslave a country by an outright confiscation of its values, material or moral. It has to be done by a process of internal corruption. Just as in the material realm the plundering of a country’s wealth is accomplished by inflating the currency—so today one may witness the process of inflation being applied to the realm of rights. The process entails such a growth of newly promulgated “rights” that people do not notice the fact that the meaning of the concept is being reversed. Just as bad money drives out good money, so these “printing-press rights” negate authentic rights.

The “gimmick” was the switch of the concept of rights from the political to the economic realm. (Emphasis added.)

Ayn Rand’s astute observation is relevant in light of a recent Supreme Court ruling on an Arizona law instituting public financing of legislative candidates. Since property rights, as philosopher Ayn Rand has observed, “are, in fact, political rights” because the acquisition of private property stems from the freedom of action inherent in the concept of political freedom - in this case, the freedom of production and trade – the “gimmick” will undermine both. Fortunately, the Arizona law was struck down. The decision did leave in place the basic legal legitimacy of public financing of political campaigns. My focus here is on the reasoning behind the decision on the Arizona law, both pro and con, and how they relate to the issue of rights discussed above.

The Arizona law was struck down because it was based upon a “printing-press right”; an alleged “right of reply”. In short, a candidate lacking the financial wherewithal to counter an opponent is automatically granted government funds for his campaign. The government-funding spigot is basically open-ended. (The law does place a financial limit of three times the “base amount” – the candidate’s initial public grant. But the number of candidates eligible is unlimited. This is relevant to the majority’s reasoning, as we shall see. Anyway, once the escalation principle is established, the politicians will inevitably “escalate” their limits through revisions in the law.) This is clearly a violation of others’ property rights; of taxpayers who must be forcibly obliged to provide the politician with a forum he himself could not or would not supply. This, of course, is nothing new. Our entire welfare state is based on this kind of redistribution of wealth. The NY Times gives a brief overview of the law that was struck down:

[The] Arizona law…provided escalating matching funds to candidates who accept public financing.

The majority said the law violated the First Amendment rights of candidates who raise private money. Such candidates, the majority said, may be reluctant to spend money to speak if they know that it will give rise to counterspeech paid for by the government.

The [Arizona law] gave public money to candidates who agreed to limit their personal spending to $500, participate in at least one debate and return unspent money. Such candidates received initial grants and then more money based on the amounts spent by privately financed opponents and by independent groups supporting them. (Emphasis added.)

Notice the italicized phrase. So, the law is an open-ended assault on the taxpayers based solely on any number of political candidates’ inability or unwillingness to raise money voluntarily. Rutgers Professor Frank Askin whines in the NJ Star-Ledger that the law is needed to provide “the wherewithal for additional speech (a right of reply?) by a candidate, who is being drowned out by an opponent who refused public money”. But as one correspondent put it:

The issue is really one of allocating public money to a candidate. The whole premise for arguing for this law goes back to the basic redistribution mantra. If a privately funded candidate makes a stronger case and gets more funding, why should the public have to jump in with their money to support the less popular candidate? It is one argument to give basic "seed money" to a candidate, it is quite another to keep upping the ante to stay competitive with the privately funded candidate. The real issue is, once again, income redistribution rather than free speech. (Posted by estowisdom, July 01, 2011 at 8:06AM)

Another was more succinct, zeroing in on what may motivate Leftists; the “drowning out” of privately funded free speech:

This law presented numerous scenarios in which a privately funded candidate would be burdened by spending over the initial limit ($21,000 in Askin’s example) To cite a few: in a race with numerous candidates the private candidates’ extra spending would trigger matching funds to all other candidates but not himself. Thus, the private candidate would be releasing 3 or 4 times his expenditure to his opponents. The matching program also kicked in if an independent group funded ads against the publicly funded candidates (again the private candidate received nothing); the matching program kicked in if an independent group-who by definition is out of the control of the candidate- runs an ad for the private candidate. Beyond theoretical scenarios, the District Court heard evidence of witnesses who testified they didn’t run ads for fear of triggering matching funds. (Posted by Jeff, July 02, 2011 at 11:35AM )

This is what Chief Justice Roberts was referring to when he said “Laws like Arizona’s matching funds provision…inhibit robust and wide-open political debate”.

The Left has always disdained private property rights. But now, if the minority had gotten its way, the ongoing destruction of property rights would have found its way into the political arena. It’s a good demonstration of Ayn Rand’s crucial observation that “Without property rights, no other rights can be practiced.”

It is only on the basis of property rights that the sphere and application of individual rights can be defined in any given social situation. Without property rights, there is no way to solve or to avoid a hopeless chaos of clashing views, interests, demands, desires, and whims.

The right to agree with others is not a problem in any society; it is the right to disagree that is crucial. It is the institution of private property that protects and implements the right to disagree—and thus keeps the road open to man’s most valuable attribute (valuable personally, socially, and objectively): the creative mind.

The violation of property rights is not the only danger; not by a long shot. Two other related threats aimed directly at the heart of a free society are evident. The “right to disagree”, a fundamental human right, gets smashed by this law. First, taxpayers – including those advocating, through their privately funded campaigns, the ideas that triggered the “right to reply” – are forced to support ideas with which they disagree. This is immoral at its core, and contradicts the very premise of freedom of speech, the press, assembly; the entire First Amendment. If the expression of one’s beliefs automatically triggers a government-mandated obligation to fund others’ means of expressing opposition, then one’s own expression is not free. Freedom of speech means simply that one may not stop others from speaking out against one. Others are always free to fund the expression of their own ideas, whether individually, or through activist groups or political candidates. But according to the Left, the “right to reply” morphs into “the right to reply at others’ expense”: a printing-press “right” negates an authentic right.

Second, the Arizona law opens the door to censorship. Dissenting Justice Elena Kagan said the Arizona law advanced First Amendment values. “What the law does — all the law does — is fund more speech,” she wrote. But as the history of the welfare state has overwhelmingly proven, the government will and must set the terms for the use of every check it cuts and doles out. When the government pays for the expression of ideas, it implicitly holds the power to determine which and whose ideas get funded. When statists declare that “all” they want to do is “fund” this or that, don’t believe it. Government financing is government control. We see it in government-financed healthcare; and education; and in highway funds dispersed to the states. A government check always comes with strings attached. Chief Justice Roberts zeroed in on the crucial essence of the issue. Quoting from the Times article:

Chief Justice Roberts wrote that its main purpose was to level the playing field for political speech, which several earlier decisions have said is an improper goal.

“It is not legitimate for the government to attempt to equalize electoral opportunities in this manner,” he wrote. “And such basic intrusion by the government into the debate over who should govern goes to the heart of First Amendment values.” (Emphasis added.)

Chickens are coming home to roost for the Left on this. The Left has always claimed to be supporters of the First Amendment, while simultaneously claiming the right to redistribute private property. That contradictory stance could not and can not hold. Here we see the climax of that contradiction coming to the fore in the form of the court’s minority opinion. The Left’s welfare-state destruction of property rights has led directly to their concerted attack on the First Amendment that they claim to cherish.

This case was decided 5-4. How disturbingly close we are to a major blow against freedom of speech is evident in the very narrow margin of the decision.

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