- Image by TW Collins via Flickr
Now that finals are over, I have been catching up on my reading. While reading the latest issue of Newsweek, George Will’s article on the first amendment and corporations caught my attention.
Will quotes William R. Maurer of the Institute for Justice in regards to the Citizens United ruling: “Corporations and unions are not individuals, but they are made up of individuals who have banded together for common purposes … To hold that First Amendment rights dissipate the minute one person begins to act in concert with another would neuter the Bill of Rights.”
The ruling in question overturned a law (part of the McCain-Feingold act) that banned corporations and unions from buying political ads. The law did not change the ban on direct contributions to candidates by corporations, but it does allow them to purchase ads that are independent of campaigns conducted by candidates. So, for example, a corporation could not directly fund Candidate John Doe, but could purchase ads attacking his opponent Candidate John Smith.
While Maurer’s point has a certain appeal, I believe that he is mistaken.
The gist of his argument seems to be that denying a collective the right to purchase ads as a collective would violate the 1st Amendment. The 1st Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
While a strict constructionist might simply note that there is no reference to the freedom of a collective to purchase political advertisements, I will not push that point. I will, instead, take a different approach.
One key concern is the matter of whose right would be violated by the limit on corporate and union spending. On the face of it, individuals would face no loss of rights. After all, the individual’s freedom of speech would be unharmed by this sort of ban. Of course, the obvious reply is that the individual’s right to freedom of speech would by limited because s/he could not join with others to create a corporation or union that would thus be able to spend money to purchase political advertisements.
However, there is something questionable about this. Consider Maurer’s argument with a bit of a modification:
Corporations and unions are not individuals, but they are made up of individuals who have banded together for common purposes … To hold that voting rights dissipate the minute one person begins to act in concert with another would neuter the right to vote.
Now, it would seem that if the original argument holds, then this line of reasoning about voting should hold as well. That is, corporations and unions should also have the right to vote. While this would no doubt be favored by some corporate and union folks, this seems rather absurd.
An obvious reply is, of course, that voting rights and the freedom of speech differ in ways that prevent this parity of reasoning tactic. That does have a certain plausibility but does require spelling out how one individual right can be legitimately “upgraded” to a collective right while another right applies on to the individual and not the collective.
Another approach that can be taken is to grant (for the sake of the argument) that there is a collective right of free speech and then consider under what conditions that free speech can be justly limited. For example, the GOP recently pressured the Smithsonian to remove a video depicting a crucifix covered in ants. Presumably, the GOP folks involved in this accept that free speech has its limits. In this case, their view seems to be that publicly funded art institutions should be subject to review by the GOP in regards to what should and should not be expressed. As another example, harmful expression (such as the classic case of yelling “fire” in a crowded theater”) can also be justly limited.
In the case of corporate and union spending, it could thus be argued that allowing such spending will create significant harms to the democratic process. For example, it can be argued that it will give corporations and unions disproportional influence in elections. After all, a multi-billion dollar corporation will have considerably more financial resources than a comparable number of individuals acting on their own. This seems to be a reasonable concern and does seem to provide a possible justification for limiting collective spending in the political arena.
What larger entity can the guy who works for minimum salary at a non-union job turn to? Or the quy who works silently for a large corporation but disagrees with its politics?
The common man has one vote. Under Citizens United the corporation he works for can throw its considerable weight behind someone who the average citizen disagrees wtih and effectively reduce the value of his vote to less than one.
Not that I would base the entire counter argument on this, but there is no “right to vote” in the Constitution. The Constitution addresses ways in which voting may not be restricted, and it specifically penalizes states by reducing their seats in the House of Representatives by a percentage of the population based on how restrictive states are in regard to how many people they allow to vote. Various amendments that restrict the states’ restrictions on voting make this a somewhat moot point in so far as voting itself is concerned, however a parallel on how the Constitution addresses a right to free speech vs. a right to vote, in a legal context probably would require a lot more insight into case history decisions.
Why would the government put limits on how voting can be restricted if there were no inherent right to vote? Article I, Sec2, “The House of Representatives shall be composed of members chosen every second year by the people of the several states.” How would that choice have any meaning without an implied “right to vote” however limited the implication may have been.
Amendment 14 (which I know is controversially near and dear to some) contains in Section 2 a sentence which begins “But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, representatives in Congress . .” That sentence ends by enumerating penalties that will be incurred when the “right to vote” is “denied to any male members of such state being of twenty one years of age .
Amendment 15 acknowledges that “The right of the citizens of the United States to vote. . .” exists.
Amendment 19 provides further acknowledgment.
When discussing whether to build the GZM and burn the Koran, Mike concluded:
“If this line of reasoning is plausible, then the mosque should be allowed while the Pastor should not engage in his book burning (despite having the right to do so).”
Now, when the GOP asked the Smithsonian to not show the crucifix covered in ants, Mike says:
For example, the GOP recently pressured the Smithsonian to remove a video depicting a crucifix covered in ants. Presumably, the GOP folks involved in this accept that free speech has its limits. In this case, their view seems to be that publicly funded art institutions should be subject to review by the GOP in regards to what should and should not be expressed.
So why is asking that the Koran not be burned not a limit on free speech, but asking that the ant-covered crucifix video be removed a limit on free speech?
In the case of the Koran burning, I asserted that the Pastor should not burn the books. However, I did not present any threat against the pastor. In the case of the GOP, they made a threat about funding. The threat makes the difference.
threat (thrt)
n.
1. An expression of an intention to inflict pain, injury, evil, or punishment.
2. An indication of impending danger or harm.
3. One that is regarded as a possible danger; a menace.
Taking away someone’s funding does not put them in danger. Choosing not to buy someone’s product is not a punishment.
Let’s compare what happened to Terry Jones and compare it to the Smithsonian.
GAINESVILLE, Fla. — FBI agents visited Thursday with a minister of a small Florida church that plans to burn the Quran on Sept. 11, as public safety became a paramount concern and President Barack Obama added his voice to the chorus of opposition.
http://www.crimeandconsequences.com/crimblog/2010/09/why-is-the-fbi-visiting-rev-jo.html
The controversial Florida pastor who threatened to burn Korans on the anniversary of the 9/11 attacks is expected to be billed at least $200,000 by the city of Gainesville for costs associated with the stunt.
http://abcnews.go.com/Business/security-bill-planned-koran-burning/story?id=11685048
Koran-protest pastor Terry Jones may be banned from UK
http://www.bbc.co.uk/news/uk-11978807
Is burning the Koran (a symbolic act), the holy book of 1.5+ billion people, comparable to depicting ants crawling on a crucifix?. By many accounts I’ve read on here, the Muslim holy book is , by and large,evil and dangerous, and people who believe in the relilgion are equally so. The possible consequences of the act, therefore, take the burning out of the realm of a mere “stunt”.
Falsely shouting fire in a crowded theater is generally considered beyond the protection of free speech–because it endangers lives . The burning of the Koran carried with it an implied threat to the lives of those who would be needlessly caught up in the backlash of the burning It would seem likely, threfore, that the act of burning could be seen as outside the protection of free speech.
Christians, on the other hand, are, by and large, peaceful and loving. They surely would not go out and harm or kill an artist or anyone else for releasing ants on a crucifix (a symbol). It would seem, therefore, that the art piece–I’ll argue it’s art, you argue against if you wish. I like muffalettas ;you like hoagies– falls within the protections of the first amendment.
Interesting points.
My first response is that what the FBI might or might not have done is a a matter of speculation. If the FBI did threaten Jones, then this makes a significant difference. If, however, the FBI was there out of security concerns (that, for example, the pastor might be attacked by terrorists), then this would be a different matter.
My second response is that charging the pastor after the fact was not a threat during the fact. Now, if the local authorities had gone to him at the start and said “Jones, if you keep talking about this we are going to charge you at least $200,000”), then that would be a threat. Of course, this could be seen as an attempt to preempt future attempts at such things. If so, it could be regarded as a threat against free speech.
This does raise a question about what share of costs people should bear when they create a significant cost for the community. I think a reasonable case could be made that Jones is responsible for the costs for the situation he created. While the authorities should not stop him from expressing his views, it does seem reasonable to point out that his actions will cost the community and he cannot expect that his free speech gives him a free ticket to create such costs. To use an analogy, if a rock star wants to hold a concert in a town, she cannot expect that the police and community will simply provide everything to her gratis simply because she has the right to free speech.
This, of course, does seem relevant to the art case-artists, it can be argued, should be free to express themselves but this does not obligate others to pick up the tab. However, there is still the question of whether cutting funding for an artist is based on this principle or based on a desire to silence a specific sort of expression.
My third response is that the Brits have a right to ban him (it is their country), but that they should not. After all, while some might find his ideas offensive or even dangerous, he is not a criminal, terrorist or other such clear danger. To ban him because of his views and ideas is not consistent with the idea of a free and open society.
Some background.
Obama’s reelection campaign could hit billion-dollar mark
By Chris Cillizza
Washington Post Staff Writer
Sunday, December 12, 2010; 7:38 PM
Will President Obama be the first billion-dollar man?
He raised and spent $750 million in the 2008 campaign, and there is already speculation that the cash-collection operation for his 2012 reelection bid will crest the once-unimaginable sum of $1 billion raised. (That’s a one and nine zeros. Nine!)
“It’s not unrealistic at all, given the amount raised and spent in 2008 and the amount Republican interest groups and 527s will spend against him,” said a former Obama administration official.
A look at the trend line of fundraising for presidential candidates over the past several elections suggests a doubling effect every four years.
In 2008, Obama raised an eye-popping $745 million, while Sen. John McCain (R-Ariz.) collected $368 million. Total spending, including third-party candidates, amounted to $1.3 billion, according to the Center for Responsive Politics.
Four years earlier, President George W. Bush brought in $367 million while Sen. John Kerry (D-Mass.) collected $328 million. Total spending in 2004 was about half that of 2008’s: $718 million.
The key difference between 2004 and 2008 was that Obama became the first person to opt out of public financing for the general election since the adoption of the current campaign finance system in the wake of the Watergate scandal.
Obama’s decision – announced in June 2008 to much fanfare – proved close to decisive as his massive fundraising over the last five months of the campaign allowed him to overwhelm McCain on television in every swing state.
Given Obama’s success after forgoing public financing in the 2008 general-election campaign, it’s a virtual certainty that neither the president nor the Republican nominee will participate in that system for the 2012 general election.
Three other factors suggest that the idea of Obama as a billion-dollar candidate in 2012 is not so far-fetched.
First, he collected $750 million while running as a senator. He’ll now be running as a president, which should allow him to clean up financially to an even greater extent, thanks to the power of incumbency.
Second, the continued development and maturation of Internet fundraising over the past four years means that the $500 million – yes, you read that right – that Obama raised online in 2008 could well be topped in 2012, noted Ben Ginsberg, a top Republican lawyer who served as an adviser to former Massachusetts governor Mitt Romney’s 2008 presidential bid.
Third, the growth of a shadow Republican Party of outside groups – epitomized by American Crossroads, which spent $70 million on the 2010 midterms – should help fuel Democratic donations to Obama. (It remains unclear whether a Democratic-aligned outside group – or groups – will form to siphon off some of those donations.)
While the pieces are clearly in place for Obama to crest the $1 billion fundraising mark in 2012, some skepticism remains – even among his supporters – about the president’s ability to reach that lofty mark.
One Obama fundraiser points to the difference between 2012 and 2008, when the absence of an incumbent candidate meant open primaries on both sides: “We will have very few events that drive online spikes, and the president probably won’t do as many events as even Bush in 2003 and 2004.”
http://www.washingtonpost.com/wp-dyn/content/article/2010/12/12/AR2010121203181.html
One more reason that campaign financing needs some serious reform. While I would need to review it more, I find the idea of fixed limits on spending appealing. I’m even tempted by the idea that each candidate would have a set amount of TV and radio time to balance the playing field.
Then again, massive spending does not assure victory. So, I do wonder how much impact the spending has after a certain point.
Unfortunately, the folks who get to vote on such matters are incumbents and hence typically not inclined to change the system in ways that might not work in their favor.
This out of control spending came from tinkering by the government in the first place. What makes you think they will get something right this time?
” Presumably, the GOP folks involved in this accept that free speech has its limits. In this case, their view seems to be that publicly funded art institutions should be subject to review by the GOP in regards to what should and should not be expressed.”
There you go again, Mike. In addition to TJ’s point, an objection to what the government spends taxpayer money on is not a limitation on free speech. A limitation would be if they chose to use the law to prevent someone from displaying art in their privately owned institution. You stumble over the contradiction right there in your own words but then choose to ignore the point. Of course you’ve got to spin it via your straw man of “…should be subject to review by the GOP”, how about subject to review of those who represent the tax payers? The contrary view might be:
” Presumably, the Democrat folks involved in this believe that the taxpayers should fund any and all forms of what the Democrats deem to be “art”. In this case, their view seems to be that publicly funded art institutions need not be subject to any review at whatsoever in regards to what should and should not be funded.
What contradiction?
There does not seem to be a straw man here. If you look at the situation, the GOP did exactly what I described. Now, if I said something like “the GOP Gestapo has cracked down on the art world so as to destroy all rights and trample the sacred 1st Amendment so as to advance their agenda of Christian dominance over America”, then I’d be cranking out a hyperbolic straw man. 🙂
I do agree that the dispute can be cast as whether the state should be funding art or not. I am very sympathetic to the idea that the state should not fund things that lack artistic merit. After all, if we are spending to support culture and art, we should spend on actual art. Deciding to fund or not fund on this basis would not seem to be an infringement on freedom of expression. However, to threaten to cut the funding of the Smithsonian because the GOP folks regarded the art as offensive to Christians, etc. would seem to be an act of coercion aimed at limiting expression.
It could be argued, as the GOP folks did, that this was not really about restricting what the Smithsonian can show based on its content but purely a decision about the use of public funds for art. However, given the attacks on the work, the GOP folks own words seem to reveal an important motivation: they didn’t like the artwork and hence took steps to see to it that it was removed from display.
I must admit that I do have some sympathy for not funding stuff that is not art and I can see how such a work could legitimately be regarded as lacking artistic merit. In my own case, I am often split is such cases. On the one hand, I favor freedom of expression and think that art should be supported as a public good. On the other hand, freedom of expression does not mean that any crap counts as art and that so called art should not be subject to review. However, in this case I am reasonable sure that the GOP did not assess the work on the grounds of a developed aesthetic theory to discern whether the work qualified legitimately as art or not.
Do you know art when you see it? How? Does the GOP or the Democratic Party? How would you/they define it? When is something “art” and not just “any crap”?
In the past, artists had rich patrons or they eked out a living with their output (or not). Patronage is out of fashion so patrons seem to be in short supply these days. And there seems to be a paucity of interest in art of the type displayed in the National Gallery of Art and the NGA East Wing and the Hirschorn. And any other federal or state or local gallery. Fortunately, government— federal, state, or local— can choose to fund or not fund this art at any time it wishes.
Perhaps this would be a good time to auction off all holdings. Put that money to “good” use—as defined by Republicans, Democrats, Liibertarians, Tea Partiers, Independents. . . people like you and me .
Defining “art” is a tricky thing. I’ve taught aesthetics since 1994 and have read a wide variety of theories of art. They all, not surprisingly, have some serious flaws. I’m willing to accept that there are paradigm cases of art and paradigm cases of non-art. But, there are substantial fuzzy zones between these paradigms.
It could be argued that artists should be under the same conditions as other workers: if you can’t earn a living doing what you do, then you should do something else. Naturally, unemployed artists should have the same unemployment rights as others-but perhaps not get support from the government just because they are artists.
It could also be argued that art is a social good and that it is an investment in culture. We do not live by bread or derivatives alone.
Yes. Many things can be argued. And decided. But by whom? And if the decisions are not to be made definitively , are the “things” in question worth keeping?
I visited a show in Santa Fe once. The theme was the fine line between art and craft. There are fuzzy edges and overlaps galore between the two. I’m certain a few attendees left scratching their heads, completely flummoxed by what they had just seen. I exited, as I often do when I’ve just seen a good (?) movie, or read a good(?) book, feeling like I had been changed a bit.
Were the flaws in the theories of art specific logical flaws or were they the result of the inherent nature of art? We tend to develop stronger more intense emotional reactions to “art” than to washcloths or storm windows, for example. Of course having a flaming wash cloth draped over one’s head or a broken storm window piercing through one’s jugular vein might engender some intense reaction. Now THAT would be some kick ass performance art.
The flaws generally seem to be the usual ones that plague definitions. To be specific, a definition might exclude things that are intuitively art or include things that are intuitively not art.
Another problem is that some definitions provided little in the way of a “tool” which could be used to actually sort out art from non art.
One thing that I have considered is that there cannot be an adequate definition of “art.” We might have to be content with accounts of specific types of art and vaguely gesture at the idea that all art forms some sort of resembling family.
Now that is performance art.
Please find some way to view Chihuly Fire and Light, an American Public Television Production. I’ll wager we can agree that, without a doubt, Dale Chihuly is an artist and his works are art.
There are expensive works hanging in homes and business places and museums across the country that can’t begin to evoke the (indefinable) response that a Chihuly chandelier creates. Of course, that doesn’t mean those works are or are not art.
“. . .a “tool” which could be used to actually sort out art from non art.”
All the “flawed” definitions you’ve encountered are flawed tools for the reasons you’ve mentioned. What kind of “tool” would not be flawed?
Relative to intuition: Whose intuition? Muslim’s? Fundamentalist Christian’s? Atheist’s ? Conservative’s? Liberal’s? Which, if any among those mentioned, are qualified to identify definitively the entire class of what is NOT art? I say child porn is not art. Hard core porn is not art. Soft core porn is not art. But even some famous classical art is damn hard to distinguish from soft core porn. And some still get wigged out enough by the exposed pubes of The Naked Maja to object.
If no one is the ultimate A1 authority, should the government close it’s “art” museums and get out of the art business? If not, who should drive its decisions to display or not display a work? A majority? A minority? A relative handful? A powerful interest group representing a few?
If the “resembling family” of art would be narrowed to a “resembling species”– as wide-ranging as the human species let’s say– some of us would still have problems agreeing on which members are worthwhile which are not. And what if we’d broaden that a bit to the primate ‘family’?