Reply to Spitzer on Free Speech

On September 4, 2009, former New York Governor Eliot Spitzer posted an editorial arguing against political speech limits on unions and corporations. The issue he identifies is this: should corporations and unions be able to fund electioneering communications within the period of 60 days prior to a general election? "Electioneering communications," for this purpose, includes broadcast, cable, and satellite comunications that refer to a clearly identified federal officeholder or candidate. Spitzer feels that these large, typically Democrat (union) or Republican (corporate) organizations should be allowed to fund political broadcasts in the days leading up to an election. Before replying to that, I offer the incidental observation that Spitzer may have made a mistake in taking a position as a journalist. This observation is based upon what is, I guess, the rumor that he is considering running for governor again. If that rumor is correct, I suggest that remaking himself as a temporary journalist was a decidedly ungovernorlike thing to do. This is not the remaking of Richard Nixon, who succeeded somewhat in rehabilitating his post-Watergate image by becoming an elder statesman. Nixon's voice was worth hearing and, on that level, he retained or recovered some respect. Be that as it may, the first reason for my disagreement with Spitzer is that unions and corporations do not, in fact, have voices. A voice comes from a throat, which in turn belongs to a human being. Being human is important, from a human perspective, because people do sometimes learn from each other and refine their own views when they try to speak and listen for themselves. A corporate or union message, by contrast, is a lecture. You can't get to the person who actually came up with it. The spokesperson and the speechwriter are generally not available for individual debate; and if they were, they would be speaking as individuals who are paid to say what they say. The spokesperson is paid by management, and management is acting upon behalf of its constituency. In a corporation, that constituency is the stockholders; in a union, it is the union members. This acting "on behalf" of the membership is not perfect. Nobody can consistently represent the interests and views of all members of an organization, because members disagree among themselves and even within themselves. Strictly speaking, that is, management and the spokesperson are not conveying the full story of what the members would say. To do that would require many hours of explanation and clarification of all of the various threads and streams in members' thinking, some of which would tend to contradict the simplified organizational message. The simplified message is deliberately designed to understate (i.e., to misrepresent) the uncertain and confused parts in what the members think. The organizational message tends to be designed to shrink, not expand, the number of uncertain areas in which dialogue and flexibility would provide the most appropriate responses. In short, the organizational message commonly denies the existence of doubts and uncertainty, and also conveys the impression that political debate is about winning, not about searching together for the best solution. Small wonder that organizationally aligned adversaries commonly consider one another stupid: they often portray themselves as being impervious to common sense. Moreover, an organizational message is often a corrupt message. Lawyers, speechwriters, spokespersons, marketing departments, and others collaborate in the creation of that message, not because it states their own beliefs, but because they are paid to say it. But nobody admires the trial witness who testifies according to what s/he has been paid to say, or the spouse who professes love because doing so is financially shrewd. If the law protected the spokesperson who suddenly admitted that what s/he has been telling the public is a load of crap, that would be one thing: there would be the purchased service, but also the preservation of the individual spokesperson's truthfulness and self-respect. After Enron, after Big Tobacco, after the recent global financial crisis, the last thing we should do is to protect the organizational "voice" that silences real-life and potentially truthful voices of employees. Spitzer correctly points out that there is no real difference between political broadcasting by a palpably biased news organization and political broadcasting by a palpably biased corporate or union organization. Palpable bias is not appropriate in broadcast media. There are many different political biases, and too few people with the resources to publicize their own personal views. With the power to influence public opinion comes a responsibility to influence it in correspondence with the best available information, viewed dispassionately from multiple perspectives. As Spitzer puts it, "There is . . . no dispute that limiting the ability of huge entities—corporations and unions—to aggregate dollars and bombard us over the airwaves with their political views would make it easier for less-well-funded citizens to make their political views heard." Spitzer argues, however, that being heard is not the point. "The First Amendment," he says, "should not be construed to create voices of equal strength: It should merely ensure that all can speak." He accepts, that is, the model of a forum of public debate in which some voices will have the ability to drown out others. If you can merely speak - if you can whisper; if you can talk to yourself - then, in Spitzer's view, you have what the First Amendment guarantees. And that makes the First Amendment meaningless in political debate. There is an alternate model. Instead of accepting that some loud (and perhaps unreasonable and even stupid) voices will invariably drown out others, one can assume that political normalcy involves intelligent compromise and reasonable accommodation toward actually getting things done. A good first step in facilitating such an environment is to reverse course, on the subject of corporate personhood: to recognize, that is, that organizations do not speak and, as politics of recent years have demonstrated, organizations do not tend to facilitate compromise and accommodation. Rather, they seek to preserve themselves. In that sense, they have a certain innate conservatism, even when adopting classically liberal stances. Contra Spitzer, the voices being drowned out are not random fringe voices. They are the voices of individuals, across the spectrum, who cannot compete with the resources available to the managers of status quo organizations. People are free to speak up in many ways; but when they (a) offend the party line and (b) do so visibly enough to draw a response, these organizations have many ways to shout them down, ridicule them, and otherwise shut them up. Spitzer's approach would further oppress the actual human voices for the sake of the fictitious ones.