New Theology of the First Amendment:

Class Privilege over Democracy


... the dominant interpretation of the First Amendment has adapted to the surrounding commercial environment, far more than being developed in any sort of exercise to determine what is best for democracy or self-government per se, or what the Founding Fathers had in mind.

But the proponents of the newfangled corporate-friendly First Amendment insist that their interpretation alone represents the true meaning of free speech and free press. This new theology extends the logic of this "laissez-faire" First Amendment to include the rights of the wealthy to virtually purchase elections and the rights of advertisers to operate without government regulation. In short, this is a First Amendment for society's owning classes. It is important to note that this view is still not accepted in toto by the U.S. Supreme Court. Currently or in the future, any number of cases are and will be working their way through the court system that would put the new theology into effect. These cases seek to prohibit any government regulation of political campaign spending, commercial broadcasting, and commercial speech (e.g., advertising or food labeling) on the grounds that such regulation would violate citizens' and corporations' First Amendment rights to free speech or free press. Each case raises quite distinct constitutional issues concerning the First Amendment, but all share the common effect of protecting the ability of the wealthy and powerful few to act in their self-interest without fear of public examination, debate, and action.

It is no surprise that the political right, the business community, and the commercial media approve of this extension of First Amendment protection to these activities. To the extent that commercial activities are given First Amendment protection, this makes the rule of capital increasingly off-lirnits to political debate and governrnent regulation. And, if political campaign contributions cannot be regulated, that puts the entire political process ever more firmly under the thumbs of the wealthy. What is striking, however, is that the venerable American Civil Liberties Union (ACLU) has lined up, more often than not, as an advocate of these "extensions" of the First Amendment. In the most flowery jargon imaginable, the ACLU promotes the notion that this interpretation of the First Amendment is the truly democratic one.

... the ACLU and progressives who might be persuaded by the ACLU's logic are making a terrible mistake, one that cannot be justified if one maintains a commitment to political democracy. This error is part and parcel of a broader process whereby the First Amendment has become more a mechanism for protecting class privilege than for protecting and promoting freedom and democracy. The First Amendment has also become a barrier to informed public participation in the construction of a media system better suited to a democracy... progressives need to stake out a democratic interpretation of the First Amendment and do direct battle with the Orwellian implications of the ACLU's commercialized First Amendment. And, as should be clear, this is far more than an academic battle: the manner in which the First Amendment is interpreted has a direct bearing on our politics, media, and culture. That is why the political right and the business community have devoted so much attention to converting it into their own possession.

The Utopian Case for a Commercialized First Amendment

Beginning in the I970s, the U.S. Supreme Court has rendered a number of decisions which have increasingly extended First Amendment protection to corporations and commercial activities. As for political contributions, the Supreme Court hrst considered whether the government could constitutionally regulate campaign contributions in I976, in Buckley v Valeo. It upheld that right on balance, but the Court also stated that individuals had a First Amendment right to contribute as much of their own money as they wished to their own political campaigns, a la Ross Perot. The ACLU is among those who want not only to maintain this aspect of Buckley v Valeo but also to grant First Amendment protection to nearly all other forms of campaign contributions. As an ACLU counsel notes, government limitations on campaign spending "would trammel the First Amendment rights of political parties and thier supporters."

The ACLU's argument, in a nutshell, goes something like this: if the First Amendment is applied to any and all forms of speech, then the net result will be a flowering marketplace of ideas. As long as the government is kept away from speech, only good things will happen for democracy. And the ability to spend money on campaigns is an inexorable aspect of speech; if it is regulated then we are on a slippery slope along which all other forms of speech may soon come under government regulation and censorship. After all, censorship is contagious. This is basically the same argument used by the ACLU to extend the First Amendment to broadcasting, advertising, cigarette marketing, and other commercial activities. If business and commercial interests lose their First Amendment rights, corporate and First Amendment lawyer Floyd Abrams wrote, liberals "stand next in line. And ... they are much more vulnerable to attack.

At its most eloquent, this liberal argument for extending the First Amendment to political spending and, with qualification, to many commercial activities promises the greatest possible democratic political culture. But we have massive hrsthand experience to show how absurd this claim is. In the past thirty years the First Amendment has been extended by the courts to cover vastly more areas-generally commercial-and our media and electoral systems may be the least regulated in the developed world. According to the ACLU laissezfaire formulation this should be the golden age of participatory democracy. But, in fact, this is arguably the low point in U.S. democratic participation. In many respects we now live in a society that is only formally democratic, as the great mass of citizens have minimal say on the major public issues of the day, and such issues are scarcely debated at all in any meaningful sense in the electoral arena. This political marketplace of ideas looks a lot more like a junkyard than a flowerbed. To paraphrase a line from Woody Allen's Hannah andHer Sisters, if John Stuart Mill were around today, he would never stop throwing up.

There are two flaws with the ACLU vision. First is the notion that the government is the only antidemocratic force in our society. Government can be and at times is a threat to democracy-and deserves constant vigilance-but this is not a meritocratic society otherwise. Nearly all theories of democracy from Aristotle to Madison to the present have recognized that democracy was fundamentally incompatible with pronounced social inequality. In our society, corporations and the wealthy enjoy a power every bit as immense as that assumed to have been enjoyed by the lords and royalty of feudal times. This class power works through means like campaign spending to assure inequality and lirnit democracy. Second, markets are not valuefree or neutral; not only do they tend to work to the advantage of those with the most money but they also by their very nature emphasize profit over all else. A commercial marketplace of ideas may generate the maximum returns for investors, but that does not mean it will generate the highest caliber of political exchange for citizens. In fact, contemporary evidence shows it does nothing of the kind.

If income and wealth were relatively equally distributed in the United States, I would be open to an argument that equated political spending with speech. But we do not live in anything remotely close to an egalitarian society. The top I percent of the population owns some 50 percent of the financial wealth, while the bottom 80 percent has around 6 percent. The top 1 percent of the population receives nearly 20 percent of U.S. income while the bottom 80 percent of the population divvies up around 45 percent of U.S. income. Letting people spend as much money as they want is simply letting people at the top buy their way out of a genuine democracy with a level playing held. In the United States the richest one-quarter of 1 percent of Americans make 80 percent of individual campaign contributions, and corporations outspend organized labor by a margin of ten to one. These contributions are really better regarded as investments, with which millionaires, billionaires, and corporations purchase the allegiance of politicians who, when in of hce, pass laws that work to the benefit of the wealthy few. In this environment, the broader notion of civic virtue and principle-so necessary for a democratic culture to prosper-has disappeared from sight. U.S. electoral politics is basically a special interest grab bag, where the ante for admission limits the possibility for meaningful participation to a small portion of the population. Is it any surprise that voter apathy, cynicism, and abstention are so high?

An assessment of recent U.S. elections provides some indication of just how absurd our electoral system has become. It is ironic that back in the I950S and I960S, commentators bemoaned how commercial television had turned "political candidates into commodities." By the I960S many considered it troubling that candidates were more concerned with getting a two- or three-minute segment on a television newscast than with getting out and dealing directly with voters and constituents. Those seen like glory days in comparison to what exists today, as the Lincoln-Douglas debates evoked nostalgia in the I950s. After three decades of devolution, the political campaign is now based largely, arguably entirely, upon the paid television advertisement. The vast majority of the money spent on political campaigns goes toward these ads. It is nearly unthinkable to be a legitimate candidate without a massive war chest to produce and run TV ads. This favors candidates who appeal to the richest onequarter of I percent of Americans who give most of the money and candidates who themselves are extremely rich, since they can spend as much as they wish on their own campaigns. Hence people like Steve Forbes and Ross Perot can buy their way into the political process, while dedicated public servants like Ralph Nader who refuse big money contributions are shut out altogether. The laws also mean that vested interests like corporations can spend as much money as they want on political ads-what is called "soft money"-as longer as the ads do not formally endorse a particular candidate.


Political advertising and the expensive electoral system it generates, therefore, have a cause-and-effect relationship with voter cynicism, apathy, and overall depoliticization. On the one hand, in a highly aroused and informed political culture, the sort of material that gets placed in these ads would be dismissed as insults to people's intelligence and never fly. Depoliticization is due, ultimately, to deeper causes than campaign spending or political advertising... On the other hand, this system demoralizes the body politic well beyond its state prior to the age of TV political ads. As one report on the I998 congressional elections noted, "people are gagging on negative ads." In this climate, people increasingly attempt to tune out electoral politics altogether, which makes political advertising all the more important. The only way to reach reluctant voters effectively, then, is to bombard them with ads during entertainment programs and sports events. Most voters are not seeking out the information voluntarily. This is the classic case of both a vicious cycle and a downward spiral.

This leads to the crucial role of the corporate media-especially the commercial television networks and stations-in creating and perpetuating the campaign-spending crisis. In the I998 elections, well over $I billion was spent on political advertising in broadcast and print media. More then $500 million was spent by candidates to buy airtime on local broadcast stations, not including national networks and cable channels, up some 40 percent from the total for I994. As one analyst put it, political advertising "saved the quarter" for stations' earnings. This biannual hnancial windfall is why the commercial broadcasters steadfastly oppose any viable form of campaign hnance reform, or any system that would allocate broadcast time for free to candidates. They claim that it is their First Amendment right to do whatever they want to maximize profit...

But the complicity of the corporate media is far greater than this. Survey after survey shows that by I998 the commercial broadcasters had reduced, almost eliminated, any meaningful coverage of electoral campaigns in their newscasts. By any calculation, TV viewers who looked to the news would have found it nearly impossible to gather enough information to assess the candidates or the issues. A survey conducted by the Annenberg School for Communication at the University of Southern California, for example, found that in the last three months of the I998 California governor's race, local television news in that state devoted less than one-third of I percent of their news time to that subject. One-third of ~ percent! The percentage of local TV news coverage devoted to the California governor's race in I974, by comparison, was nearly ten times greater. Broadcasters have little incentive to cover candidates, because it is in their interest to force them to purchase time to publicize their campaigns. And as TV ads become the main form of information, broadcast news has little or no interest in examining the claims made in these ads, as that might antagonize their wealthy benefactors.

Is it possible that the blackout in electoral information on television news is compensated for by the print media, especially daily newspapers? Even though an increasing number of Americans, especially younger Americans, do not use newspapers for political information on a regular basis, print journalism still is the pacesetter for what serious issues are and how they get covered... Campaign coverage tends to provide a dissection of strategy and considerable emphasis on polling data. There is often considerable reporting on candidates' TV ad campaigns, but mostly to discuss their strategy and tactics, not to assess the ideas or the content. One political reporter noted the lack of media coverage of the I998 race for governor of California and anointed it the first truly "all-commercial political campaign.''

Consider the highly publicized I998 U.S. Senate race in Wisconsin between incumbent Russell Feingold and Republican challenger Mark Neumann, for example. Neumann was able to cut Feingold's substantial lead in the polls by using soft money to marinate the airwaves with ads attacking Feingold on a number of issues. Many of those ads were dubious in character, attacking Feingold on issues like flagburning and partial birth abortion. What was striking was the lack of press coverage in the state's newspapers (and, of course, television and radio stations) investigating the allegations in Neumann's ads, or even attempting to clarify what these issues entailed. Instead, Feingold was left, in effect, to spend his limited budget (he refused to accept soft money on principle) to counter the charges. He narrowly won in a race that, had the spending been equal, most observers suspect he would have won in a rout. In short, candidates with the most money who run the most ads have the inside track to set the agendas for their races. It does not mean that they will always win, but it means a candidate without a competitive amount of cash will almost always lose. Most prospective candidates without gobs of, money or ready access to those who have it, regardless of their qualifications, will rationally opt not to participate.

... we are losing our capacity to distinguish public life from the commercial realm, with public life suffering as a consequence. This loss is a primary factor in the raging depoliticization and atomization of social life. Indeed, this is a theme that resounds in some of the most penetrating social criticism, ranging from that of C. Wright Mills andJurgen Habermas to Noam Chomsky and Robert Putnam. It is a crisis that the proponents of extending the First Amendment to all campaign contributions and to commercial speech are incapable of addressing, so it is one they dismiss as irrelevant. As one legal scholar has noted, in the nineteenth century the image of the market was used to expand the boundaries of free speech, whereas in the twentieth century the image of free speech has been used to expand the power and terrain of the market.

In the hands of the wealthy, the advertisers, and the corporate media, the newfangled First Amendment takes on an almost Orwellian cast. On the one hand, it defends the right of the wealthy few to effectively control our electoral system, thereby taking the risk out of democracy for the rich and making a farce of it for most everyone else. And these semimonopolistic corporations that brandish the Constitution as their personal property eschew any public service obligations and claim that public efforts to demand them violate their First Amendment rights, which in their view means their unimpeded ability to maximize profit regardless of the social consequences. Indeed, the media giants use their First Amendment protection not to battle for open information but to battle to protect their corporate privileges and subsidies.45

This points to the extraordinarily unprincipled nature of the ACLU's present position on the First Amendment. The tragedy of this interpretation is not that it regards government as the sole enemy of democracy. It is that it spends all its time jousting with government when regulation might possibly challenge the prerogatives of the wealthy but steadfastly ignores the widespread activities of the government to shape the marketplace of ideas on behalf of corporate and commercial interests. Hence the fact that the federal government has turned over valuable radio and television channels to a small number of commercial firms at no charge and with virtually no public debate is not considered a violation of the First Amendment, or a matter of concern to civil libertarians. Yet this activity has put distinct limits on the range of ideas that could emanate from the resulting broadcasting system.

And the fact that the U.S. government subsidizes a top secret national security apparatus to the tune of at least $30 billion per year- with a significant aspect of its work going to the dissemination of propaganda and harassment of political dissidents-is also not apparently a First Amendment concern. Indeed, recent evidence suggests that the ACLU's Washington office effectively cooperated with the CIA in its efforts to censor the writings of its former employees and to restrict journalists' coverage of CIA operations in the 1980s. How ironic that the modern-day corporate-friendly absolutists at the ACLU cut deals in back rooms with groups like the CIA, while publicly evoking a self-righteous commitment to principle as they advance the rights of advertisers, media corporations, and cigarette companies... the very existence of the CIA signified that this was not a democratic society, because the rulers had a weapon of immense power unaccountable to the citizenry.

It would be comforting to think that we could depend on the Supreme Court to do the right thing in all these areas and reclaim the First Amendment for democracy, but we cannot. This Court was put in office by the politicians who benefit by the status quo, and it has already shown a lack of backbone on related issues. And the courts tend to be conservative institutions, more often than not only willing to reverse earlier decisions when they see significant changes in social attitudes on an issue. In the end, we will probably only get changes in the courts when we have built up a significant social movement to challenge the corporate control over our society. In the meantime, we need to continue to expose the phony basis for the corporate-friendly, commercialized First Amendment. We need to reclaim the First Amendment and aim it for the stars, rather then let it continue to mindlessly point at the ground. And in the process of doing so we need to pressure the ACLU to return to its roots as a force for justice and democracy, or expose it as a fig leaf for plutocracy.

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