The “speech” whose freedom is guaranteed in the constitution has long been interpreted to be more than literal speaking. In the landmark 1989 case, Texas v. Johnson, for example, the Supreme Court found that flag burning constituted “symbolic speech,” and was therefore protected by the First Amendment.
But if “speech” can mean symbolic speech, that raises broader questions about what symbols or symbolic acts qualify for protection.
Is money speech? Or more precisely, are political donations?
Supreme Court decisions in recent cases such as Citizens United and McCutcheon seems to indicate that money is speech and therefore protected.
In the Johnson majority opinion, Justice Brennen wrote:
In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether [a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.
By that definition, a political contribution could easily be seen as speech. It certainly conveys a message.
Just this past week, Brendan Eich was forced out as CEO of Mozilla after a campaign targeting him for making a financial donation in support of Prop 8, California’s most recent anti-gay marriage bill.
Just a financial contribution? Perhaps. But from the reaction – he may have well announced that he hated gay people.
For better or for worse, money was speech.
To be clear, I think both Citizens United and McCutcheon pose serious challenges to our democracy – and to the capacity of all people to participate equally.
Perhaps most troubling is not the mere fact that money is interpreted as speech, but in the ramifications that brings.
In the majority opinion Chief Justice Roberts writes:
No matter how desirable it may seem, it is not an acceptable governmental objective to “level the playing field,” or to “level electoral opportunities,” or to “equaliz[e] the financial resources of candidates.
Well, that’s not quite what I remember from civics class.
Freedom of speech is precious because we each should have equal capacity to exercise it. In whatever form we chose to exercise it,
You and I – we can talk respectfully as equals or we can scream at each other as equals. Both of our speech is protected. Both of our speech is valid. Both of our speech has the opportunity to be heard.
Of course that’s an ideal more than a reality, but no where is that ideal more absent than when money gets involved as speech.
You and I don’t have the capacity to make the same financial contributions. Not only that – from the moment I was born on this earth, and from the moment you were born on this earth – we set out on paths that guaranteed you would never have my capacity and I would never have your capacity. We are deeply, intractably, socially stratified financially. The American dream is a fantasy.
And that fantasy is the real culprit here.
If you gave every American a dollar and let that person choose – keep the dollar or donate it. Then, sure, maybe that is speech and maybe that is fair. Maybe.
But in a reality where the circumstances of your birth so strongly predict the circumstances of your death, there is nothing fair about that. There is nothing democratic about that.
Money is speech, you say?
Fine, fine, if that’s how you want to play it. But if money is speech, then you best be making the distribution of that “speech” fair.