The Roberts Court's First Amendment: Where the Lochner Court Dare Not Tread

Last week, the Supreme Court came down with their latest attempt to destroy democracy by carving it up for purchase. The decision was Arizona Free Enterprise Club v. Bennett, a case challenging Arizona's opt-in public financing scheme. The scheme worked like this: Any candidate may agree to public financing, meaning that he receives funding from the state, and is limited to that funding. If, however, his opponent is privately financed and outspends him, the state gives him 94 cents on the dollar in matching funds, up to three times the original amount. Anything in excess of that, and he was out of luck. The Supreme Court struck this down as a violation of the speech rights of the privately funded candidate.

Think about this for a second. Where this provision cannot be said to do anything but create more speech, the Court struck it down because it suppressed the efficacy of the private spender's speech. Justice Kagan's dissent doesn't pull punches in pointing out the absurdity:

The Supreme Court's Willful Blindness to Political Corruption

Justice[s] [Are] Blind

This semester, I'm taking a seminar called "President Power," in which we discuss (you guessed it) Presidential power from a legal standpoint. Each week, we are required to write short "discussion starters" responding to the reading, and since that's how we think of the blog (and I can't seem to stop myself from employing the same preachy tone as I often do in blog posts), I figured, "Why not make them blog posts?!" So, today I give you this week's discussion starter, responding basically to Free Enterprise Fund v. Public Company Accounting Oversight Board (2010). I'm modifying it to include links and a little more explanation where needed.

The Inherent Limits on Freedom of the Press

Ok, so I just saw a blog post that mirrors my views on the inherent limits on press freedom and the reasons for it exactly, so I thought I'd share. Stanford philosophy professor John Perry writes:

The philosophical basis for freedom of the press, especially in a (more or less) democratic state like our own, is that people are the ultimate decision makers, decisions are likely to be better if founded on truth than falsity, and truth is most likely to be available and widely believed with an unfettered press.

Basically, I don't believe an individualized right to free speech or free press are goods unto themselves. The query has to go further - why are they important? Why did the Framers think they were important? The answer is obvious - both free press and free speech are necessary to a working system of self-government. The press for truth, and speech so that all the best ideas are heard and debated. That's why the Court's ruling in Citizens United (and the near-equivalent view for the press giving publishers, including cable providers to some extent, the right to say anything they want) was so wrong. Free speech is an illusory right when someone follows you around with a 150dB megaphone. You can't simultaneously say that free speech and press are important and then give anyone the right to simply drown or crowd others out (a right that usually only materializes with the huge resources of a corporation). Because it destroys the forum for speech itself, the crowding/drowning out should be prohibited by the First Amendment, not protected by it.