The Principled and Pure Court?

http://www.huffingtonpost.com/lawrence-lessig/a-principled-and-pure-fir_b_439082.html

Lawrence Lessig
Co-founder of Change Congress, founding board member, Creative Commons
January 27, 2010
The Principled and Pure Court?: A Reply to Glenn Greenwald

Salon's Glenn Greenwald is just about the most persistent and effective critic of money in politics today. He is among the least starry-eyed reporters studying Congress. But his essay defending the Court's judgment in Citizens United would have been better had he sprinkled a bit of the skepticism he has for Congress on the words penned by the Court. For the story of the First Amendment in the Supreme Court's hands is not quite as pretty as Greenwald would tell it.
The First Amendment, Greenwald tells us, is an absolute. It applies not to "persons"; it "simply bans Congress from making any laws abridging freedom of speech." This law plainly banned these entities -- whether persons or not -- from a freedom of speech. Ergo, this law is, and should have been found to be, unconstitutional.

Sounds good. Sounds principled. Sounds refreshingly different from anything else that happens within the reach of DC (i.e., good and principled).

But apply that same test to the following (not so hypothetical) free speech case: A bunch of doctors practice in family planning clinics. The government issues a rule that says certain doctors in certain clinics are not allowed to discuss abortion as a method of family planning. They can talk about abstinence. Or condoms. But they are not allowed to advise their pregnant patients that they have the liberty to abort their fetus.

Sounds like -- under the First Amendment Greenwald describes -- a simple case. Whether or not doctors are persons (and at least some are just mere mortals), they should have the freedom to speak. Advising someone about a legal medical procedure is among the core freedoms one would expect a Free Speech Clause to serve.

Yet in 1991, in an opinion by Chief Justice Robert's former boss, Chief Justice Rehnquist, in the case of Rust v. Sullivan, the Court found no First Amendment problem at all with the government's restriction on doctors' speech. Indeed, it wasn't even a difficult case according to the Court ("no question but that the statutory prohibition contained in § 1008 is constitutional.")

Why? How? Well the doctors at issue worked in family planning clinics that had received at least some of their funds from the government. And in exchange for that benefit, the government was free to gag the doctors however it wished. The doctors were free of course to work in a family planning clinic not funded at all by the government (for of course, there are plenty of those) (that's a joke). But so long as the doctors take this benefit from the government, they've got to live by the rules of the government, at least so long as those rules serve some legitimate state end.

So how is this case related to Citizens United? For the law wasn't applying exclusively to entities that had received something from the government. It was applying to all corporations.

But of course, corporations do receive a gift from the government. The government limits the legal liability of investors in that corporation in exchange for their risking their capital to spur innovation and growth. That benefit is significant. And the First Amendment question is whether in granting that benefit, the state would be free to limit the political advocacy that corporations engage in.

It seems astonishing to imagine the state couldn't. State law has historically had wide freedoms to condition the corporate form as they wished. This fact has led some, including my colleague, Sina Kian, to argue that Citizens United is less than people think. That the decision notwithstanding, states could build this limit into their corporate charters. Or that maybe even Congress could induce states to do the same. The question then would be the reason the government had for demanding the entity give up this liberty in exchange for the corporate form. Traditionally, the burden of that question is the easiest for the government to meet -- is there any state interest at all? In Rust, the interest was that that government didn't like abortion.

But I agree with Greenwald that there is something unseemly in the idea that the government could restrict the speech of a class because it doesn't like the speech of that class.

Yet this is the most confused part of the commentary (and reaction) of most to this kind of regulation. If the government's reason for silencing corporations is that they don't like what corporations would say -- if it thinks, for example, that it would be too Republican, or too pro-business -- then that's got to be a terrible reason for the regulation, and we all ought to support a decision that strikes a law so inspired.

That, however, is not the only, or the best, justification behind the regulations at issue in Citizens United. Those rules not about suppressing a point of view. They're about avoiding a kind of dependency that undermines trust in our government. The concentrated, and tacitly, coordinated efforts by large and powerful economic entities -- made large and powerful in part because of the gift of immunity given by the state -- could certainly help lead many to believe "money is buying results" in Congress. Avoiding that belief -- just like avoiding the belief that money bought results on the Supreme Court -- has got to be an important and valid interest of the state.

If the Court really means to say that entities that fund or create other entities can't limit the power of those entities to speak -- so the government can't stop doctors from talking about abortion, or the IRS can't stop non-profits from talking about politics -- then we really have crossed a Bladerunner line. For that conclusion really does mean that these entities were "created with certain unalienable rights," even though they were created by a pretty pathetic creator -- the state.

My point is not that the state's power to condition should be unlimited. The point instead is that it's not so simple, or absolute, as Greenwald would have it. And given the true complexity of these evolving and complicated doctrines, it is certainly fair to be critical in the extreme of this decision by the Court, favoring speech that most believe it naturally likes (unlike abortion-speak), in a decision that ignores the judgment of Congress about the conditions under which the integrity of that body, or any election, proceeds.

If they actually carry through with the implication it seems to suggest, then history will certainly judge this as an outlier in the Court's portfolio. Not, Keith Olbermann notwithstanding, on the level of Dred Scott. But certainly in the house of Lochner.