In this era of misinformation and threats to free expression the ability to speak openly and truthfully is more essential than ever. Concerned for what we view as a recent erosion of respect for First Amendment rights, we’ve commissioned a new series of short essays that will serve as a platform for authors to share their own stories. The following piece is a part of that series. We asked authors to respond to the prompt, “What does the First Amendment mean to you?” and, in the spirit of the First Amendment, we’ve encouraged the authors of these essays to give imaginative voice to what they believe these freedoms mean today. (The views expressed are of course solely those of the author and are not intended to reflect the Guild’s position on any issue.)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A Doctrine of Absolute Protection
By Scott Turow
It sounds like Speculative Fiction today, but in 1974, in the wake of the Watergate scandal, the U.S. Congress passed strict limitations on campaign contributions and expenditures by candidates for federal office, a bill that was signed by the Republican President, Gerald R. Ford. A band of odd bedfellows, led by the Conservative U.S. Senator from New York, James Buckley and the American Civil Liberties Union, challenged the new limitations as violations of the First Amendment’s guarantee of freedom of speech. The Supreme Court sustained the limitation on campaign contributions, reasoning that contributions had the potential of real or apparent influence over candidates, but held that limiting expenditures violated the First Amendment because spending money on a political campaign is indistinguishable from verbal or written expression.
From that dubious start in Buckley v. Valeo, the U.S. Supreme Court has slowly refined away most expenditure limitations, culminating in the much-lamented decision in Citizens United in 2010, in which a 5-4 majority held that corporations, like other associations of individuals, have free speech rights equal to other citizens. The Court therefore struck down a law passed by Congress and also overruled two of its prior decisions in opening the door to unlimited corporate spending, at least when it’s not made in direct coordination with campaigns.
I will limit my jeremiad about unlimited campaign expenditures, since politicians like Bernie Sanders have begun an important political conversation about the perils to a democracy when money and political influence are yoked together constitutionally. I don’t doubt that spending money on political advertising has expressive elements. But to claim that what is clearly an act is entitled to the same level of absolute protection as the speech of a lawful protester is in my view deeply wrong-headed—and enshrines in the Constitution the right of the rich to disproportionate influence over American politics.
There are many people of reason and good faith who disagree with my opinions about these matters. But I am also concerned about what happens to the First Amendment when it begins to be expanded this way to protect corporate speech or commercial expression. No one doubts that the core of the notion of free expression is protecting individuals, to keep them from being jailed or harassed by the government for speaking their minds and their consciences. The First Amendment allows anyone in this country to bring their personal vision about countless matters to the page or the podium. The First Amendment, in the end, protects creativity against anyone who wants to impose boundaries on it.
Thus there is a peril when the Court goes beyond those core matters, because sooner or later the necessary distinction between corporations and so-called natural persons will force the Court to positions that will impact individuals. For example, what happens when shareholders try to prevent political speech by corporate management? Does it violate the First Amendment when shareholders—or a Board—want to fire a CEO only because of the political advertising she or he bought with company money? What if the candidate the CEO supported is good for business? Corporate governance issues will become constitutionalized. And our understanding of free expression will become tinctured with maximizing shareholder values.
Part of protecting freedom of speech is limiting its application only to the areas where we are willing to tolerate a doctrine of absolute protection and can do so without inviting the kinds of problems that decisions like Citizens United will inevitably involve. We shouldn’t “thin out” the First Amendment.
Scott Turow is a writer and attorney. He is the author of eleven best-selling works of fiction, including his first novel, Presumed Innocent (1987). His newest novel Testimony (2017) arrives in May from Hachette/Grand Central Publishers. He has also written two non-fiction books about his experiences in the law, and his novels have been the basis of several films, including the movie, “Presumed Innocent.” His books have sold more than 30 million copies around the world.
A former federal prosecutor, Mr. Turow has been a partner in the Chicago office of Dentons LLC, an international law firm, since 1986, concentrating on white collar criminal defense, while also devoting a substantial part of his time to pro bono matters. He has served on a number of public bodies, including the Illinois Commission on Capital Punishment to recommend reforms to Illinois’ death penalty system, and was the first Chair of Illinois’ Executive Ethics Commission which was created in 2004 to regulate executive branch employees in the Illinois State government. He was also President of the Authors Guild, the nation’s largest membership organization of professional writers, and is an Emeritus Trustee of Amherst College.
Photo credit: David Joel