More by Glenn Greenwald on free speech (cont’d)

In a previous post I argued that Glenn Greenwald’s arguments against laws for the suppression of certain ideas cannot be effective until he establishes what makes expressing ideas different from other human activities that are regulated by law. Greenwald’s main argument, which seems generally on the mark and deserves close examination, is that regulations that bar the expression of certain ideas foreclose the possibility of certain political changes. It seems that Greenwald considers this effect as something clearly to be avoided (even at high potential short term cost) but, as is unfortunately his habit, he does not make his argument and his reasoning explicit. I previously committed to consider this argument in detail next. Before doing so, however, I want to consider a somewhat different argument mentioned by Greenwald. I therefore postpone treatment of the main argument to an upcoming post.

Greenwald’s other argument purporting to show why banning speech is not like banning other types of behavior is short-term utilitarian. Greenwald claims that “airing” ideas is “better” than suppressing them – “better”, we are given to understand, even for those who find those ideas wrong or offensive.

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Dahl’s arguments against an allotted legislature

A post on Equality-by-Lot.

Organizations: function, power

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 the analysis is straightforward.

Greenwald manages here to pack tightly several assertions, which are better considered separately. His first point is that

organizations are created to further the interests of people, and should thus be given powers appropriate to the task.

This point is valid. The cavalier derivation of the next point, however, as a supposed consequence is completely false:

one of those powers must be the possibility to broadcast ideas, unrestricted by the government

This represents a complete misreading of the nature of broadcasting of ideas, as discussed before.

Trickle down civil rights policy

This post deals with point #3 on my list of arguments made by Glen Greenwald in his articles regarding the court decision invalidating certain campaign finance regulations.

This is, on the face of it, the most specific of Greenwald’s points, although as it turns out, it does have some wide ranging implications. He begins:

What is overlooked […] is how ineffective these campaign finance laws are.  Large corporations employ teams of lawyers and lobbyists and easily circumvent these restrictions; wealthy individuals and well-funded unincorporated organizations are unlimited in what they can spend.  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.

There is very little question in my mind that Greenwald is completely correct in saying that campaign finance laws are ineffectual. In a society that is built around the concept of ownership, it would be quite difficult to insulate political discourse from the effects of this institution, and the government has no interest in spending the effort in doing so, since it is populated by people who got there by being backed by wealthy organizations and people.

The rest of the argument, however, is without merit for several reasons:

“Money is speech”

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” doctrine. I cannot find a concise explicit statement of this doctrine online, but I think it is fair to say that it says that

money can be used to help disseminate ideas and therefore its use in this way must be “unrestricted” in the same sense that “speech” (dissemination of ideas) is.

Greenwald’s argument at point #4 shows that indeed money can be used (or maybe to some extent must be used) to disseminate ideas. Therefore an outright ban on the use of money in disseminating a certain idea would be a very powerful way to hinder the dissemination of that idea. This is definitely true – indeed, it is a truism. The notion that money is a useful tool for disseminating ideas can be stretched much further to produce another truism: money is such a useful tool for disseminating ideas that a wealthy person or organization is at an inherent advantage in disseminating their ideas over a person or organization without access to large amounts of money. (A contradictory idea – that ideas gain support based solely on their values irrespective of the resources that are used to back them and thus ideas that are widely believed must be valuable – is also sometimes voiced by interested parties, but this idea can be safely, and usually is, dismissed.)

None of this would come as a surprise to those who argue that “money is not speech”. Indeed it is the latter, stronger statement that is the reason for their objection to the “money is speech” doctrine. The “money is not speech” claim is not the negation of the claim of usefulness of money in disseminating ideas, but to the claim that use of money should be “unrestricted”, in the same way that the mere act of speaking or writing should be “unrestricted”.

Constitutionality

Point #1 in my list of arguments made by Glenn Greenwald in his posts laying out his thoughts about the court’s decision to invalidate the McCain-Feingold restrictions on campaign spending is Greenwald’s view of constitutionality. He states:

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).

and

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.

This view is wrong. It is a pillar of legal dogma and part of the mystique of the judicial branch, and yet it is quite transparently false on two counts:

1. The constitution is supposed to generate good results. Certainly considerations such as “compelling state interests” show that interests are what is at the bottom of constitutional decisions, but these are just an explication of the entire rationale of the constitutionality. The constitution, or indeed any rule in a democratic society, is supposed to serve the public good. Otherwise, it has no reasonable function and should simply be ignored. Greenwald’s own adherence to what he perceives as the principle of free speech is due to his perception that this principle serves society well.
2. The constitution, like any legal document, or any document that says anything about the real world (as opposed to, say, a mathematical theorem) is open for interpretation. The interpretation is guided by the interpreter’s world view, which includes, of course, what the interpreter considers good or bad. Therefore, even if we did not believe that constitutional decision should be based on interests or values, we would have to find a different method to make those decisions, a method which would not be inherent in the constitution itself.

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.

U.S. Senator tenure

The chart below shows the maximum (solid line), average (circles) and median (horizontal bars) of the distribution of tenures of U.S. senators serving at each year since the establishment of the body.

Over the last 200 years all three indicators of tenure length have been increasing steadily, approximately doubling every 100 years. There are now 52 senators with tenure of ten years or more, and two senators, Robert Byrd and Daniel Inouye, with tenure of about 50 years.

The chart was created using a table that I prepared based on the chronological list of senators available on the senate website. There may be some slight inaccuracies in the table, but I believe that on the whole the data is valid.

Political equality in a large group

This post is aimed at being the first part in a long-delayed “attempt to embark on” “a methodical analysis of the set of possibilities for achieving political equality”.

Part 1: Optimal decision-making, group rationality

… in which it is argued that groups, in an ideal setting, can achieve rational decisions. Group decision making constrained by practical circumstances should therefore be designed so as to produce decisions that approximate the decisions that would have been made under ideal conditions.

It is sometimes asserted that groups cannot form good policy. When such notions are expressed by the less educated, they are are attributed to the authoritarian sentiments of the unsophisticated. When such ideas are proposed by the educated, they are considered evidence of hard-headed realism. Elite speakers often mention Arrow’s “impossibility theorem” (what Arrow called the ‘General Possibility Theorem’) and claim that it “shows” that group rationality is impossible.

Obama’s name recognition history

The case of Rudolph Guiliani suggests that mass media cannot dictate to the public who to vote for. However, since it is impossible to vote for a candidate one has never heard of, mass media cannot help but determine who the public will not vote for.

Senator Barack Obama announced his candidacy for president in January 2007, yet even by by February 2006 over 40% of the people heard enough about Obama to have an opinion about him.

For comparison, a different Democratic congressmember running for the nomination, Dennis Kucinich, never managed to have more than 35% name recognition, even during the height of the primary season.

(The points marked with ‘k’ show the proportion of people recognizing Kucinich.)

Data: pollingreport.com: Newsweek, NBC and Gallup series.