Glenn Greenwald on free speech

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[.]'”

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