Glenn Greenwald on free speech

January 27, 2010

Glenn Greenwald is not a mainstream intellectual. His columns show that he is an informed, independent thinker. In the wake of the U.S. supreme court decision invalidating some restrictions on political speech in the mass media, Greenwald wrote a couple of interesting columns (1, 2) in which, contrary to what is probably the standard response in the circles that are ideologically close to him, he defends the decision, and goes further to defend anathemas to those ideological circles – the ideas that “money is speech” and that corprations should have free speech rights.

For reasons that are largely in agreement with Greenwald’s, I don’t see the particular case as being very important. (Striking down the restrictions can hardly make a significant difference in the sum total of the power of corporations to influence public opinion, since they already control public discourse almost exclusively. It can only shift power among corporations.) However, the arguments Greenwald marshals are of much more fundamental importance – they bear on basic political notions  – “free speech”, power within society, legality, constitutionality and democracy. I therefore wish to examine his points one by one. In this first post I will enumerate all the important points he makes, with the intention of analyzing each one in later posts.

Greenwald points:

  1. “In general, a law that violates the Constitution can’t be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes).” A related point: “It’s critical always to note that these are two entirely distinct questions:  (1) is Law X/Government Action Y a good thing?, and (2) is Law X/Government Action Y Constitutional?  If you find yourself virtually always providing the same answer to both questions — or, conversely, almost never providing opposite answers — that’s a very compelling sign that your opinions about court rulings are outcome-based (i.e., driven by your policy preferences) rather than based in law or the Constitution.”
  2. “[L]aws which prohibit organized groups of people — which is what corporations are — from expressing political views goes right to the heart of free speech guarantees no matter how the First Amendment is understood.” A related point [in the comments]: “I’ll ask […] of you and anyone who claims that since corporations are not persons, they have no rights under the Constitution: Do you believe the FBI has the right to enter and search the offices of the ACLU without probable cause or warrants, and seize whatever they want?”
  3. “It’s the smaller non-profit advocacy groups whose political speech tends to be most burdened by these laws.  Campaign finance laws are a bit like gun control statutes:  actual criminals continue to possess large stockpiles of weapons, but law-abiding citizens are disarmed.”
  4. [In the comments:] “Anyone who believes that [“money isn’t speech, it is property”] would have to say that there’s no First Amendment problem with any law that restricts the spending of money for political purposes, such as: ‘It shall be illegal for anyone to spend money to criticize laws enacted by the Congress; all citizens shall still be free to express their views on such laws, provided no money is spent[.]'”

10 Responses to “Glenn Greenwald on free speech”

  1. Harald Korneliussen Says:

    I think the speech/money angle is oversimplified. Although you are entitled to speak, also as a corporation or organization, are you necessarily entitled to _take_ money for it?

    It doesn’t seem to me that the one follows the other. For instance, a politician has the right to free speech to endorse a project, but if he took money explicitly for endorsing it, he’s still corrupt, and has (probably) broken a law.

    Greenwald’s fourth point also seems to show the odd idea that the US constitution has to be some perfect and final incarnation of law. I don’t see that the first amendment deals with money at all, and I would claim anyone who does is guilty of twisting it and overextending it for his own (possibly reasonable) causes. So yes, “It shall be illegal for anyone to spend money to criticize laws enacted by the Congress” is not rejected by the first amendment as it is – that doesn’t mean it should be accepted, or even that there shouldn’t be constitutional safeguards preventing it (although as you may know, I have little faith in the power of constitutions to restrain the government, any branch of it.)

  2. I think that the correlation of money vs. speech may be a valid one, but the according of full personhood to corporations, something that was literally done in the footnotes by a court clerk, is the real issue here.

    Corporations are by the nature of their construction, sociopaths, and making them people is where the problem sets in.

  3. Yoram Gat Says:


    > the speech/money angle is oversimplified

    I agree – Greenwald is using a broad brush. I intend to spend a post going over this carefully.

    > Greenwald’s fourth point also seems to show the odd idea that the US constitution has to be some perfect and final incarnation of law.

    It’s not clear to me that Greenwald would actually take this position, but I agree that in the arguments that I grouped in points 1 an 4 Greenwald attributes to the constitution some sort of super-political status that is completely unjustified. BTW, Greenwald being a constitutional lawyer may explain his misconceptions about this issue.

    > I have little faith in the power of constitutions to restrain the government

    Again, I agree. This is part of the problem of the conception of the constitution as being super-political. Addressing this point should be part of the analysis of Greenwald’s arguments.


    > the correlation of money vs. speech may be a valid one

    I wouldn’t grant this point this quickly. Like Harald, I think that Greenwald’s point is facile. Allowing people to use their jaw muscles to advocate political views does not mean they cannot be barred from biting political opponents.

    > according of full personhood to corporations […] is the real issue here.

    Sure – a corporation, or any other organization, is not a person. But, as Greenwald argues, organizations should not be made powerless – they should be granted some powers so they can serve the interests of the people who are organized in those bodies. The question is, then, what powers should be granted to organizations.

  4. Yoram Gat Says:

    Today, a-propos some gesture made by judge Alito during Obama’s speech, Greenwald delves more deeply into legal dogmatism regarding the supposed role of the supreme court as a super-political adjudicator. This will serve as more fodder for an upcoming post by me.

  5. […] 29, 2010 Point #1 in my list of arguments made by Glenn Greenwald in his posts laying out his thoughts about the court’s […]

  6. […] 1, 2010 In point #4 of my list of Glenn Greenwald’s arguments regarding “free speech”, I quote Greenwald’s argument regarding what may be called the “money is speech” […]

  7. […] February 9, 2010 This post deals with point #3 on my list of arguments made by Glen Greenwald in his articles regarding the court decision invalidatin…. […]

  8. […] 17, 2010 Coming, finally, to Greenwald’s point #2, I find that much of the groundwork has been laid out in my treatment of points #1, #3, and #4, so […]

  9. Anna Lekas Miller Says:

    Hi! I’m writing on behalf of GRITtv with Laura Flanders. Today our live stream is Glenn Greenwald and Daniel Ellsberg live in our studio talking about secrecy, disclosure, and whether or not people can take back power. If you are interested in watching it, it will be on at 12 PM EST, and up as a clip to watch and/or embed on the same website around 8 PM EST. Please feel free to e-mail me if you have questions.

    Anna Lekas Miller
    GRITtv Web Intern

  10. […] As has been the case with his post dealing with the court decision regarding regulations of election…, Greenwald’s argument weaves several related but distinct claims – of varying validity – into a single narrative. Unpacking the argument, I identify several claims. The first three seem almost gratuitous: […]

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