Thursday, January 28, 2010

Lawrence Lessig Replies to Glenn Greenwald

Lawrence Lessig takes on the absolutist position towards the First Amendment on HuffPo.

Lessig establishes that corporations are creations of the state, and thus, (under established law, upheld by this Supreme Court), can have restrictions on speech put on them by the state (e.g., just as government employees have such restrictions).

Of what nature can those restrictions be or not be?
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.


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.