Maurice Emmer: Guest opinion
Special to The Aspen Times
Aspen CO Colorado
Every afternoon, the Chicago activist blared propaganda from his portable loudspeaker at Wabash and State. He wore no name badge. I didn’t know who he was. To me and most others he was anonymous. Why could he infringe on my right to tranquility as I traveled home from work and not even identify himself? Oh, yeah – the First Amendment to the U.S. Constitution.
The 2010 Citizens United decision has been blamed for every catastrophe but Superstorm Sandy. Oh, that too? Disinformation about the decision – an affirmation of people’s right to free political speech under the First Amendment – has been widespread, much of it from politicians.
In Citizens United, Congress had prohibited direct political spending by corporations during a “quiet period” before elections. This affected labor unions and activist organizations, such as the Sierra Club, that use the corporate form. Several differently constituted Supreme Courts, years before, had held that corporations have free-speech rights similar to those of the individuals who compose them. The Supreme Court acknowledged that a ban on spending gags the dissemination of views or, in other words, bans speech. So the court held that prohibiting spending infringes on free political speech.
Corporations have free-speech rights (long since settled); a ban on spending violates their free-speech rights. That’s it. That’s all there is to Citizens United. There is nothing about anonymity in Citizens United; there is nothing about politcal action committees (which are not corporations). It is only about whether the Constitution permits a ban on corporate political spending.
The decision also is based on the “freedom of association,” which was recognized in NAACP v. Alabama (1958). That’s another First Amendment right: to “associate” in organizations such as labor unions, corporations and political committees. Combining the freedom of political speech and the right of association, the Supreme Court had to reject congressional prohibition of corporations’ political speech.
On Sunday, a front-page piece in the Aspen Daily News repeated the widespread falsehood that Citizens United somehow sanctioned anonymous political spending. The article cited the case (“The ability for that committee to exist and operate in the way that it does was affirmed by Citizens United”), discussed anonymity extensively and failed even to attempt to explain the true effect of Citizens United. The author could not have read the case before writing the article. Anonymity was not at issue in the case; the case did not involve unincorporated entities such as the one complained of in the article. Was the author a victim of disinformation from politicians?
I do not advocate for or against anonymity; I advocate for truth in journalism. Anonymity does not happen because of the Supreme Court. It happens because laws made by Congress do not require disclosure of donors to certain “associations.” This is not accidental. The legislative histories of the laws involved discuss the pros and cons of requiring disclosure. Generally, where Congress didn’t require disclosure, it was because Congress found that requiring disclosure would suppress contributions and, thus, the activities of the “association.” Suppressing the political-speech activities of an association violates the First Amendment, which provides that “Congress shall make no law … abridging the freedom of speech.” Fortunately, the Supreme Court reads the Constitution even though citizens don’t.
Why would Congress reach this view? One need look no farther than activities in our recent local election. Personal attacks often substituted for substantive discourse. Couldn’t disclosure of contributors dissuade contributions for fear of such personal attacks and suppress the political speech of an association? Isn’t it possible that advocates of “full disclosure” really just want more people to attack instead of addressing the issues? Wouldn’t the suppression affect all political associations more or less equally? Recent elections here and elsewhere have proved congressional concerns well founded. One is free to disagree with Congress’ policy or to lobby for a law change. But blaming a Supreme Court that didn’t make the rules and citing an irrelevant case misinforms the public.
Opinions vary on whether anonymously funded political speech is effective. Citizens are free to believe communications from anonymously funded groups or not. Chicagoans could believe the anonymous activist at Wabash and State or not. But it is pointless to blame the Supreme Court for anonymity because Congress intentionally allows it.
There are two problems with blind, herd criticisms of Citizens United. First, they are usually made by people who never read the decision and don’t know its holding. Second, the decision is a reaffirmation of First Amendment free speech; criticism of the decision is criticism of free speech. If we like the latter, we should applaud the former and not blame it for phenomena we don’t like that it did not even cause.