Home Courts and the Law The Supreme Court Disgracefully Wrong on Freedom of Speech

The Supreme Court Disgracefully Wrong on Freedom of Speech


Many people, on both sides of the political spectrum understand the implications of the recent Supreme Court ruling that says that corporations may basically act as if they are individuals when it comes to political “speech.” They refer to the transfer of a dollar or a billion dollars, which they regard, stupidly…yes, stupidly…as the same thing.

We must make a quick aside here to point out that we consider “stupid” to be a specific term. When humans are confronted with a complex situation, they do not stand before it in almost bovine manner, perplexed at its solution. When legal matters, for example, are so complex as to have serious consequences in multiple different ways to multiple different parties, a Supreme Court that would simply take up the simplest manner, chew on it and spit it out, must be considered…in light of their elevated stature…”stupid.”

Was it stupid for the Supreme Court under Justice Roger B. Taney, a name that will, yes, live in infamy, to declare, in the Dred Scott decision, that human beings were chattel and others could own them? Today we would see that as having been so myopic, even in its day that we would now call it “stupid.”

Were these Justices merely stupefied by the complexity of the society and the gravity of the consequences? Yes, they were. People are not property. It was not only stupid. It was catastrophic, as it turned out. We can only hope that this foolish, myopic decision does not have similar results.

In coming years, it will be reviewed by those who will eventually find their way to the court and those Justices will see it as “stupid.” They will recognize that this court, and these justices, Chief Justice Roberts and the other four Justices, Alito, Scalia, Thomas and Kennedy have been so blinded by contemporary miscellany, such transient thoughts, that they could somehow miss the truth that the concept of “freedom of speech” has attached to it modifiers that cannot simply be brushed aside or combined without consideration.

Has our educational system become so flawed that those we put on the top bench in the country, in this land supposedly…and especially by the Party that put them on the highest court…dedicated to Democracy could produce such shallow thought?

It must be pointed out that all five affirming Justices are practicing Roman Catholics. The reason that is important is because they all adhere to the Catholic system of logic founded and still prevalent in the Roman Catholic Church today…the Aquinian philosophy. It has, indeed, been the predominant philosophy taught in Catholic institutions of higher learning for generations.

It is an absolutist philosophy and theology. It is also a 13th Century philosophy based on syllogisms that have long been outdated. We know now and have known for centuries that there may not be such a thing as original causes. The concept of infinity is not clear to most of us but it is an accepted possibility by science. We have no knowledge of prime causes, even though the entire rationale for a deity in the Roman Catholic Church is based on what was a remarkable concept by the brilliant theologian Thomas Aquinas.

This is not to knock the Catholic Church, not even to seek retribution for the way that many of us were knocked around by nuns and priests who saw to it that we were cognizant of certain moral and educational standards. And the Roman Catholic Church is by far not the only religion that has seen its teachings seem somewhat archaic and challenged by the science of the last 100 years.

This is not by way of saying that there is no God nor that Jesus was not a deity. It is merely to say that the logic on which the five Justices base their entire construct of fairness, justice, freedom, and human rights could be flawed. It would be so depending upon how they construct their view of reality. How rigid are they and how dogmatically do they see the principles that govern our society. If too rigid, that may be why they have overlooked the subtleties within this most serious matter.

How do their religious views apply in this case? The five majority judges see freedom of speech by an organized group as the same as the speech of an individual. If one organizes those of a similar…or even disparate…point of view, even political, then, as they see it, that group, that association, has basically the same rights as all those members do as individuals. That is the entire thrust of their argument.

Because that is the limit, the argument is so flawed, that, when delivered by the ultimate judicial authority, it can only be called “stupid.” And that, in a Supreme Court, is a disgrace to our legal traditions of a similar magnitude as that of Dred Scott. That is to say that, presented with the facts, the Court simply walked away with only a part of the decision made, calling it the entire decision. They left an entire segment of the problem untouched.

May a court do such a thing? Of course. But it should be said that, while it may be prudent and rational to leave a horse tied to a post, it is similarly imprudent to leave it wandering about the public square unattended. It may also be very dangerous. And that is what has happened here. The court, lazy and “stupid,” i.e., blind to the rest of the problem walked away, leaving the job unfinished.

Here is the counter legal and philosophical thought and it is, sadly for the fate of our legal system under this Supreme Court, not extremely complicated.

An individual has the right of free speech. Within the limitations on the harm it may do to society, an individual may speak out in the “public square.” An individual may also financially support another’s free speech, even another’s political speech and may gather and associate with others to support that political speech—that point of view that affects others in society.

Those are all very simple and clear rules of the law of free speech. Individuals have freedom of speech; groups of people have similar freedom of speech as a collection of individuals.

But now we enter into the second part which was not addressed by the Supreme Court. When is a group of individuals not an association for the purposes of free speech? And when does free speech, by an individual or an association of individuals become so harmful to society that it must be banned.

For example, all collective points of view in our current society are allowed. We allow white supremacists to march in the streets, hold rallies, and announce their gatherings in various forms of promotion. But most of us are repulsed by their actions and the great weight of public opinion is against their point of view, which most find outdated and immoral. But how far will we go to tolerate such actions?

Is it acceptable to have these people, let’s call them Communists for the sake of this discussion, to take over the town square? That would probably be all right, wouldn’t it? But then, what if they took over all the radio stations? Would that be ok? Communists now control the radio stations for a day…but then suppose they continued to control that speech every day? Would that be ok?

What if this minority point of view, these rather unsavory white supremacist Communists were to somehow take over all the radio stations and all the television stations and all the newspapers? Would we all agree that this group, these people we are calling Communists should have their rights to propose this point of view on all the communications spectrum?

You see, they have their right to a point of view. Whether they own one station or all the stations, or even if they own none but still fill up all the air time with their point of view…do they have that right? In other words, the means of distributing their ideas is separate from the ideas themselves and their championing them. They may simply be reading recipes all day long rather than advocating that blacks are less intelligent and whites are better athletes and Greeks make better salads. Do they have that right?

Yes, they do…according to the current majority in the Supreme Court. The reason that they do is that, apparently, this Supreme Court applies only the principle of whether an association of individuals has the same right as an individual.

Does anyone, maybe even a child in the fourth grade, argue against that principle? Of course not. But to ignore all the other factors involved with an enormously complex society is to be very, very, shall we say, “limited” in one’s perception of society. Or to consider society a loose amalgam of individuals gathered together almost exclusively for free enterprise, with very few rules. Or…and this we cannot accept from a Supreme Court in the United States…to be disingenuous.

So…if we would modify the principle of association free speech, how would we do so? Well, it is pretty clear that, using the example above, allowing the Communists to have all the free speech doesn’t leave any time or space for the free speech of others. This is because speech does not simply go up into the air and arrive magically on the lenses or in the ears of others. It must be printed and distributed or projected electronically through communications systems. Or shouted from rooftops.

So, we see that there is automatically some limitation, some modification of free speech by the environment in which it is conducted. Free speech, while an abstract construct, is also a reality now that the “Communists,” as we cited above now are using up all the air time. If we have no time nor any means of communicating our free speech…how free is it?

So what do we do in a situation like this? Must we modify the Constitution?

No. But we must go back and revisit the Roberts decision on free speech. Your freedom of speech and action ends, we often joke, where my nose begins. We now have a society, and this often happens in the law, that has progressed beyond a point where there are unlimited resources. We now experience limited space, limited time, limited numbers of people as they exert pressure on a political and social system. So our laws must take into consideration that when we push one part of our system in, another may bulge out.

We see that in our environment. We can no longer travel up the Hudson to where there are no people and start dropping acid by-products into the water because there are too many people now who exist on the Hudson and rely on it for clean water. We cannot continue to cut down trees indiscriminately nor can we drill for oil in the waters off our beaches. So many people now rely on those beaches for relaxation that comes with scenic beauty, that there is a counter balance where at previous times in our history there were not.

The Roberts decision leaves out one whole aspect of society. Fairness is not the same concept as equality. Someone may be equal without life’s having been fair to that person. Equality can be either attained or simply happen. But fairness is also a principle of a strong democratic society. Life is not fair but human beings try to make it fair. When an earthquake strikes Haiti, that is not fair. But we all send money or to help in our own way. It wasn’t fair that a man or woman be born into slavery, but society tries to create subsequent balance…some attempt at fairness…through affirmative action. It doesn’t help the original person, but it is the only way to adjust to the equilibrium we all seek.

If we do not take into consideration that our “Communists” may one day be able to control all the means of distribution of messages, then we are not being fair to those who have something to say. This could be one hundred people…and they are all citizens too…or it could be one hundred million. Or…and here is the problem…it could be one hundred associations representing one million each.

Now he says “tomahto” and she says “tomayto.” One Supreme Court Justice’s association may be “tomahto”, i.e., an association of like-minded people, but another’s may be “tomayto” –a corporation. If it is a corporation and not an association of people for a common purpose, like a political party, then how does anyone know how many of those people…executives, workers, stockholders, vendors…feel the same way?

In a corporation, where people associate only to make money…that is the definition of a for-profit corporation, you, as a stockholder, may not feel the same way about a subject as the CEO. In fact, you may feel the same way about ten things as the CEO and the opposite on another ten. The same thing is true of some non-profits organizations, as for example, with unions.

So the question quickly becomes this: who speaks for the corporation? And if money is speech, who says where the money will be spent as free speech? If someone agrees with the CEO and the board on ten issues and objects on ten issues, which of those twenty issues will form the basis of those expenditures that suddenly become “free speech?” If they are issues on which the person agrees, his or her free speech is acknowledged. If not, their free speech is being denied. While it is true that money is equivalent to free speech, it is only equivalent to free speech when it is freely given. Confiscation is not the same thing as donation.

Campaign contributions cannot be free speech from corporations clearly except on one circumstance. Since the corporations are founded for other purposes, they must be polled and free speech handed out according to the wishes of the members of the association (in this case the corporation). Otherwise many members, vendors, stockholders, stakeholders, board members and employees are being denied free speech. And this also goes for non-profits where the groups are not associating for a political purpose.

This would be the same for a private corporation as for a public corporation. The money is the free speech. So those from whose effort these revenues which become expenditures are earned must have some say in how they are disbursed. Otherwise any rich citizen could simply buy up a corporation and use that association of thousands of people as one vote.

So let’s wind up with our example again. Let’s say that we find out that these “Communists” who now have all the air time and print used up for their group, suddenly stop broadcasting about recipes and start talking about revolution. They might start with a pretty thorough analysis of why your country is not working the way it should for you. Then they might start talking about how all your leaders are corrupt and how they are wasting all your tax dollars.

But let’s suppose that these Communists are just shooting out a lot of propaganda and there is no excessively wasteful spending and there are no substantially corrupt politicians. And let’s suppose that they, the Communists, who are using up every single bit of airtime and print space leave no room for anyone to come out with the truth? In that case, Americans would cast their opinion with the Communists and never know that they were perhaps voting against their own best interests.

The point is that freedom of speech is more than just an idea. Franklin said that we were creating “Liberty…if you can keep it.” We have so many organizations today that all are smart enough to use “Freedom” or “American” or “Justice” or “Prosperity” in the title, hoping to fool the people, that we need freedom of speech more than ever.

But freedom of speech is of no value whatsoever if the Communists (you substitute your own worst nightmare) own or rent or somehow control every single solitary minute of time or inch of paper. Worry about the people who own the means of communication, not freedom of speech, because both are a part of the same thing. You can say almost anything you want. Enabling others to hear it is the problem.

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