Free speech and donations

A Nation writer defends the attack on Chick-fil-A. I have some questions for him and those who think like him

Published July 30, 2012 5:50PM (EDT)

(updated below - Update II - Update III)

As I noted the other day when writing about the Chick-fil-A controversy, I was happy to see that almost every liberal commentator condemned the actions by city officials in Boston and Chicago to punish that business due to the distasteful views on homosexuality expressed by its President (see, for instance, Mother JonesKevin Drum and Adam Serwer, The American Prospect's Scott LemieuxDigbyThe Nation's Richard KimJohn Cole, Amanda Marcotte, and Atrios). Today, though, The Nation's Lee Fang became the first progressive writer I know of to defend these state actions against the restaurant chain. Ignoring all those commentators, Fang singles out me and Adam Serwer and says that we are "leading the contrarian charge" (given how isolated Fang is among liberals on this question -- to say nothing of the ACLU, which denounced the constitutional violations here as "clear cut" -- Fang has a very strange understanding of what "contrarian" means).

The essence of Fang's argument is this: it's not merely that Chick-fil-A has a President who expressed anti-gay views. If that's all it was, says Fang, then he "would agree" that they have the right to do business without being punished by city officials. But, he argues, this business -- a corporation -- donates money to conservative political groups which Fang dislikes. He then reasons: since corporations are not persons, they have no Constitutional rights and can therefore be punished for their political activism without running afoul of the free speech guarantee in the First Amendment:

Chick-Fil-A CEO Dan Cathy's family manages a charity called the WinShape Foundation, which dispenses millions of dollars to anti-gay organizations, including Focus on the Family. Where does that money come from? According to tax disclosures, the WinShape Foundation received $8,067,161 from Chick-Fil-A corporation and $11.5 million from CFA Properties, a corporate affiliate of Chick-Fil-A registered in Delaware in 2010.

If a corporation uses its general treasury funds to finance political advocacy, does that mean any politician that takes action against that corporation in response to that advocacy is violating the First Amendment? It's a question that comes down to whether you believe corporations have rights akin to human beings.

Leave aside the fact that all 9 justices of the Supreme Court -- from the most liberal to the most conservative -- believe, and in Citizens United said, that corporations have free speech rights under the First Amendment, and that restrictions on how they spend their money for political advocacy can violate the First Amendment's free speech clause.

As Justice John Paul Stevens, writing on behalf of the liberal dissenters in that case, wrote (emphasis added): "of course . . . speech does not fall entirely outside the protection of the First Amendment merely because it comes from a corporation," and "no one suggests the contrary" (the debate in Citizens United was not whether corporations have First Amendment free speech rights -- everyone on the Court agreed they do -- the question was whether it was Constitutionally permissible to limit those free speech rights in order to achieve a compelling state interest). The notion that Citizens United turned on whether corporations are "persons," and that the majority and dissent disagreed on this, is pure and total myth. Just read what Justice Stevens said about that. But for the sake of argument, let's just pretend that the question of whether corporations have rights under the Bill of Rights is an open, unsettled question.

Also leave aside the fact that the city officials admitted they were motivated by the anti-gay views expressed by the business' President (Mayor Menino: Chick-fil-A "'doesn’t belong in Boston' because of Cathy’s discriminatory stance"; Alderman Moreno: "Because of this man's ignorance, I will now be denying Chick-fil-A's permit to open a restaurant in the 1st Ward"). And leave to the side that the Mayors of those two cities have now backtracked and admitted that they are not Constitutionally permitted to deny Chick-fil-A licenses due to its political activism.

All that aside: I was actually hoping that someone with a platform would make the argument Fang just made. For a long time now, I have had several questions for people who argue that only natural persons, but not corporations, are protected by the Bill of Rights, and I have similar questions for those who say that "money is not speech" (by which they mean that restrictions on how one spends one's money cannot violate the free speech clause). I've been really interested in hearing answers to these questions for a long time -- I really want to hear people's genuine answers, especially those who take Fang's view of the Constitution -- and now I feel like I finally have my chance to pose them. So I'm so excited.

I'd like everyone to suppose that the following actions are taken by the state, and then for each, tell me whether you believe it would or would not be Constitutional:

Congress enacts a law that states: No business incorporated in America, whether for-profit or non-profit, shall be permitted to donate any of its money to groups espousing liberal ideas. Any business found to be in violation of this prohibition shall be guilty of a Class A felony. Corporate donations to groups espousing conservative causes shall still be permissible and legal.

A city enacts an ordinance that states: Any business found to have donated money to any group that advocates same-sex marriage or abortion rights (including Human Rights Campaign and Planned Parenthood) shall be barred from doing business within the city limits. Businesses shall still be permitted to donate money to groups which advocate against same-sex marriage or against abortion rights.

The FBI enacts an internal policy -- and then implements it -- which provides: any advocacy group incorporated under the laws of any of the United States (including the ACLU or Amnesty) shall have their offices searched, their files seized, and their assets frozen each time they use funds from their General Treasury for advertisements opposing American wars or foreign policy. Advertisements supporting American wars or foreign policy shall not trigger such actions.

The IRS enacts an internal policy -- and then implements it -- which provides: any advocacy group incorporated under the laws of any of the United States (including Planned Parenthood or Americans United for Separation of Church and State) which express views hostile to Christians shall be automatically audited and subject to fines.

Texas Governor Rick Perry issues an Executive Order that proclaims (and the Legislature then ratifies): In light of the recent $2.5 million donation by Amazon CEO Jeff Bezos to enact same-sex marriage, Amazon is hereby barred from doing business in the state of Texas.

The state of Idaho enacts a law that provides: No labor union shall be permitted to spend any of its money from its General Treasury to advocate for changes to labor laws that would make it easier to unionize, nor shall they be permitted to donate union funds to any political candidate or group advocating for such changes.

For me, answering these questions is extremely easy. Every single one of those actions is patently unconstitutional, because they entail state punishment of political views which the state dislikes: exactly what the First Amendment was designed to prohibit. Each one of the affected entities should be able to go into court and challenge the laws and state actions on the ground that they violate their free speech rights under the First Amendment (and, in some cases, their due process rights under the Fifth Amendment), and I believe -- and hope -- that they would succeed easily in having these actions invalidated as violative of the Bill of Rights.

But if you're someone who believes what Fang just argued, don't you have to say that each of these acts is Constitutionally permissible? Of course, you're free to think that they are unwise on policy grounds, but that's not the question. The question is: are these acts Constitutional, and if you really believe that only natural persons -- but not corporations or entities -- have Constitutional rights, or if you really believe that restrictions on spending can never implicate free speech rights, then don't you necessarily have to endorse the Constitutionality of all of these actions? For those who share Fang's views, I'm genuinely interested in your answer: how would you possibly argue that such pernicious acts are unconstitutional? When answering, please don't change the proposed laws or actions: I'd like to know your answer to the ones I have described.

To say that the First Amendment merely bars political officials from punishing you for expressing political views they dislike -- but permits those officials to punish the spending of money to promote those views -- makes a total mockery out of free speech rights. The same is true for those, like Fang, who say that only natural persons are protected by the Bill of Rights, but not groups of citizens forming entities. If you really believe those things, then you should think about the things you're permitting -- such as the acts above. And, most of all, as is always true of those who are eager to endorse free speech restrictions: realize that it's just as easy for your theories to be used to suppress the views you like as they are to suppress the views you dislike.

I actually can't believe that there are self-identified liberals who want to use the force of law to outlaw political activism with which they disagree (any business that donates to a group I disagree with should be legally banned from operating). The impulse itself is repellent: no impulse is more dangerous, or more illiberal, literally. Fortunately, they seem to be in a small minority. By illuminating contrast, this is the impulse driving those who actually believe in free speech.

* * * * *

One last reminder: if you're going to disagree in the comment section or elsewhere, please do provide your answers to the questions I asked above, as I'm genuinely interested in your answers.


UPDATE: This doesn't pertain directly to Fang's argument, but for those who like to say "money is not speech," I have a question just for you. Consider the following law enacted by Congress:

Any citizen who spends money to promote liberal ideas -- whether on advertisements, donations to liberal candidates, or in any other way -- shall be guilty of a Class A felony and sentenced to 5 years in prison. Citizens shall be free to espouse liberal ideas, but not to spend money to promote them. Citizens are still permitted to spend money to promote conservative ideas.

Would such a law be Constitutional, and if not, what provision of the Constitution would it violate? For those who say "money is not speech," what possible argument do you have to say that such a law would be unconstitutional?


UPDATE II: I'll never understand how those who want to limit the speech rights of those they disagree with are able to ignore the following, just as I will never understand how those who want to deny due process rights to "The Terrorists" ignore it:

He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

Thomas Paine, Dissertation on First Principles of Government (July 1795)

On a different note, there is a really unfortunate tendency on the part of some progressives whenever this issue is raised to toss around two totally meaningless, trite slogans over and over in lieu of substantive thought: "corporations are not persons" and "money is not speech." These slogans tell us nothing about this debate; they don't even relate to it, let alone resolve it.

As I documented, Citizens United did not turn on those questions at all; whether corporations are persons had nothing to do with the outcome of that case. Moreover, the First Amendment says nothing about "persons," making the question of whether a corporation is one totally irrelevant ("Congress shall make no law . . . abridging the freedom of speech"). Beyond that, nobody -- including defenders of Citizens United -- believes that "money is speech"; that's a total strawman, as the actual argument is that certain restrictions on how one can spend money can be a free speech restraint (see, for instance, the hypothetical law I described in the prior update, or all the ones above).

Most of all, I really don't believe that people who spout these two slogans really believe them; if one does believe them, then there is no choice but to say that these obviously unconstitutional laws I set forth above must all be Constitutionally permissible. After all, if corporations have no Constitutional rights and/or restrictions on money can never constitute a free speech restraint, then it's impossible to argue that those hypothetical laws are unconstitutional. If only natural persons have Constitutional rights, then, by definition, there are no limits on what government can do to entities. Thus, one must insist that all of those hypothetical laws I set forth above are constitutional. That conclusion is, obviously, an absurd position, which -- using the most basic principles of logical reasoning -- should reveal the absurdity of those premises.

Finally, I should note that Fang has now added an update to his original post purporting to "reply" to what I have written. But he did not even acknowledge, let alone respond to, a single one of the questions I posed to him.


UPDATE III: One last point: when Congress voted in 2009 to defund ACORN as punishment for perceived sins (ones unproven in a court of law), the corporations that own and operated ACORN -- ACORN Institute, Inc. and New York ACORN Housing Company, Inc. -- sued in federal court, claiming that the Congressional de-funding constituted an unconstitutional bill of attainder, and those ACORN corporations prevailed in the first instance. I argued at the time that ACORN's position was correct -- that the de-funding was unconstitutional -- but for those who believe that corporations have no Constitutional rights: wouldn't you have had to argue that the corporations that comprised ACORN should not have been able to sue to vindicate their Constitutional rights? That's the point: if you really want to take the position that corporations have no Constitutional rights, then it means the government is unconstrained with what it can do to corporations -- not just the corporations you dislike (Exxon, Goldman Sachs, etc.), but also the ones you like (ACORN, the ACLU, Planned Parenthood, environmental groups, Amazon with its gay-marriage-supporting CEO, ones that donate to liberal causes and candidates, etc.).

By Glenn Greenwald

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