Chapter 2

If Money Is Speech, Speech Is No Longer Free

The Difference between Paid Speech and Free Speech

Money is property. It is not speech.

—Supreme Court Justice John Paul Stevens

Back in 1775, Thomas Paine had a problem. The revolutionary agitator needed to rouse American colonists into such fervor against England that they would declare independence and risk their lives in a war. But how could he get his message out across such a large territory? He couldn’t have afforded TV ads even if they had existed at the time. Paine solved his problem by writing Common Sense, a 79-page pamphlet that swept through the colonies and solidified support for the American Revolution.

Campaign reform opponents have used Paine’s pamphlet as an example of political speech that the British government would have censored if it could. They claim that campaign finance laws would have banned Common Sense and prevented the American Revolution.³⁸

But here’s where the critics are wrong. Paine sold his book. He wasn’t paying for people to read his words—readers were paying to buy the book.³⁹ Although Paine gave away his copyright and donated his royalties to the revolutionary cause, Common Sense was not America’s first political ad campaign. Rather, it was the most significant early use of the free press. It is that kind of free press that the Framers of our Constitution sought to preserve in the First Amendment, not political campaign advertising.

The Federalist Papers—Paid Speech?

When the Framers left the convention in Philadelphia with a draft of our Constitution and needed to persuade their fellow citizens to adopt it, they didn’t launch an ad campaign. Rather, James Madison, Alexander Hamilton, and John Jay anonymously wrote a series of eighty-five articles that became known as The Federalist Papers. These writings have been used, quite correctly, as precedent for the importance of protecting anonymous speech.

However, The Federalist Papers do not justify anonymous campaign spending. That is because—just as with Thomas Paine’s Common Sense—the articles were purchased by readers rather than foisted on them as paid advertisements. Under the title The Federalist, they were originally published in serial form in newspapers and then compiled into a booklet, which was also sold.⁴⁰ Although the authors were not attributed, readers could rely on the known reputations of the newspapers to evaluate the integrity of the writing.

The critical distinction in both instances is that while money was used to disseminate speech, the money didn’t come from the person speaking.

The First Amendment and Campaign Ads

When Thomas Jefferson found the original Constitution faulty for failing to include a “bill of rights,” he wrote:

There are rights which it is useless to surrender to the government, and which yet governments have always been fond to invade. These are the rights of thinking, and publishing our thoughts by speaking or writing.⁴¹

Jefferson pushed James Madison to propose what became the first ten amendments to our Constitution. His writings make clear that Jefferson had in mind the freedom of conscience, to think what you want to think, as well as the freedom of the press, the ability to publish those thoughts, as critical components to self-government. There is no reason to believe Jefferson or other Framers were thinking about paid political advertisements when they drafted and ratified the First Amendment.

In fact, Jefferson and other Founders were deeply concerned about money distorting our government. Jefferson wrote that “of all the mischiefs, none is so afflicting and fatal to every honest hope as the corruption of the legislature.”⁴²

Decades earlier, in 1757, George Washington violated an ordinance in the colony of Virginia that forbid “treating” or giving “ticklers” to voters when he ran for the Virginia House of Burgesses. After losing his first race for office to a foe who provided free drinks to voters, Washington won his second election by purchasing more than a quart and a half of rum, wine, beer, and hard cider per voter in his district to distribute during the campaign.⁴³ After the United States won independence from Great Britain, several states enacted laws against treating, or bribing, voters directly and punished violators by removing them from office.⁴⁴

It is clear our First Amendment protects freedom of speech, not freedom of spending. But there are genuine concerns about banning all spending of funds to discuss politics. It takes money to print the New York Times, just as it required funds to print Common Sense and The Federalist Papers. We need constitutional protections for spending money to publish political speech.

“Our First Amendment protects freedom of speech, not freedom of spending.”

Justice John Paul Stevens has aptly described the difference between treating money exactly as free speech on the one hand and money as a legitimate means to disseminate speech on the other. Stevens noted:

Money is property. It is not speech. Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or even on a football field. Money, meanwhile, has the power to pay hired laborers to perform the same tasks. It does not follow, however, that the First Amendment provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results. … The right to use one’s own money to hire gladiators, or to fund “speech by proxy,” certainly merits significant constitutional protection. These property rights, however, are not entitled to the same protection as the right to say what one pleases.⁴⁵ (emphasis added)

For instance, if spending money on political speech had no constitutional protections, could Congress ban someone from spending money to publish a book that advocated defeat of a presidential candidate? That’s what Supreme Court Justice Samuel Alito asked Deputy Solicitor General Malcolm Stewart during the oral arguments for the Citizens United case: “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”⁴⁶

Mr. Stewart got the answer wrong. He said while Congress couldn’t ban the book, it could prevent corporations from paying to publish it.

What Stewart should have said was that a corporation could indeed publish the book if it then sold it to readers—that is the classic definition of the free press. But, if a corporation (or a billionaire for that matter) mailed unsolicited copies of a book-length political advertisement to thousands of voters right before an election, that would still be a campaign ad and subject to the same contribution limits and disclosure requirements that apply to all campaigns. Lengthening a two-page junk mailer into a book does not somehow magically convert a campaign flyer into the free press.

Where Is the Line between Paid Ads and the Free Press?

Stewart erred by falling into the trap set by reform opponents who intentionally conflate advertisements, or paid speech, with the free press that is sought out by listeners. Big money apologists use this trap repeatedly to make disingenuous arguments. Even the American Civil Liberties Union (ACLU) glosses over the distinction, saying “why would it be permissible for a major weekly news magazine to run an unlimited number of editorials opposing a candidate, but impermissible for the candidate or his supporters to raise or spend enough money to purchase advertisements in the same publication?”⁴⁷

Kansas senator Pat Roberts explicitly conflated television programming and commercials during a 2014 Senate floor debate about a constitutional amendment to limit campaign spending. “Let’s forget about the commercials just for a second,” Roberts said. “Let’s talk about the show.”⁴⁸ But the show is entirely different from the ad, isn’t it? People tune in to watch the show, not the ads.

During the same debate, Senator Ted Cruz went on to claim that allowing limits on political campaign spending would allow the government to jail the producers of political satire shows such as Saturday Night Live. Liberal mega-donor Jonathan Soros (son of financier George Soros) has also suggested that limiting campaign spending could mean “monitoring the editorial power of the press.”⁴⁹ Both claims are nonsense.

The constitutional amendment Senators Cruz and Roberts were debating specifically said, “Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.” Instead of being absurdly inflammatory, Senators Cruz and Roberts could have raised a legitimate point. If we are going to allow limits on campaign spending but not allow limits on the free press, how are we to tell the difference? How can we draw bright lines between the two?

While common sense tells us that a TV show like Saturday Night Live would obviously fall within the free press, the text of the proposed amendment could provide for a more clear definition of what a press exemption meant. Chapter 7 will examine ways an amendment could do that.

Does Newsprint Make a Newspaper?

One fall day in 2012, Montana voters found what looked like a newspaper in their mailboxes called the Montana Statesman. The newsprint mailer had a headline reading, “Bullock admits failure: 1 in 4 sex offenders go unregistered.” Steve Bullock, the attorney general who was viciously criticized in the article, was also running for governor. Montana law prohibits corporations from making political campaign contributions, but because this mailer looked like a “newspaper,” the organization behind it claimed it could use corporate funds to print and distribute it and not even bother to disclose that fact. The group bragged to its potential donors (many of whom were oilmen and others from the extraction industry opposed to Bullock’s candidacy) that “no politician, no bureaucrat, and no radical environmentalist will ever know you helped. The only thing we plan on reporting is our success to contributors like you.”⁵⁰ Does printing a campaign ad on newsprint suddenly provide the constitutional protections of the free press? Of course not.

Previous campaign finance laws have attempted to define which news media outlets are exempt from campaign finance regulations based on the size of the circulation, how regularly it was printed or posted, or whether its staff were professional journalists as opposed to untrained volunteer bloggers. These definitions become complicated pretty quickly and can lead to the valid complaint that campaign finance laws make the rules about political speech too complex for ordinary citizens to follow.

Drawing the Line between Ads and the Free Press

Fortunately, there is a simpler solution. Rather than distinguishing the free press from campaign advertisements based on questions of content or means of production, we can draw a bright line based on whether the listener is paying to hear the speech (or otherwise actively soliciting the content) or whether somebody else is paying to present it to the listener. The Montana Statesman claimed it was the largest newspaper in the state because it was mailed to 120,000 people—but it didn’t meet the standard of the free press because nobody actually subscribed to it. This distinction between unsolicited paid speech and solicited free speech resolves most of the confusion sown by the apologists of big money in politics.

We can draw a line between a newspaper story or editorial and a newspaper ad in the exact same publication. The essays comprising The Federalist Papers were written anonymously, but they were published as content in reputable newspapers that readers bought themselves, not as paid advertisements.

We can draw a line between a newspaper purchased by the reader at a newsstand and a big money political mailer (of any length) sent to the reader’s doorstep unsolicited or distributed as a flyer on a street corner.⁵¹ We can even extend this clear line to speech that the listener actively seeks out but does not pay for directly, such as when you check a book out of a library or tune into a news story on National Public Radio.

Senator Fritz Hollings, in response to a Washington Post editorial that opposed a constitutional amendment to limit campaign spending on the grounds it would violate free speech, retorted:

Go down to the Washington Post and say, “Now I want some of that free speech. I would like about a quarter page of that free speech, or a half page of that free speech you just editorialized about.” And they will say, “Son, bug off. There is nothing free down here in this newspaper. You are going to have to pay for it, and you are going to have to pay for it under our rules and our regulations and our limits.”⁵²

The line between paid speech and free speech holds for stories or programs that the reader receives for free but which are supported by distinct advertisements where advertisers do not control the content of the program, such as the case with most commercial radio and television programs, newspapers and magazines, and Internet news sites. But it is a different matter when an entire publication or program is subsidized by a funder who exercises editorial control. We can distinguish between an independent news program on a media outlet that deserves full First Amendment protection and a paid advertisement or program-length infomercial on the same outlet that does not. The distinction is not the form of speech but whether the reader seeks out the information (and pays for it directly with subscriptions or indirectly by tolerating discrete advertising) or is presented with unsolicited information from a paid bias.

Even with other types of Internet communications, the bright line between paid speech and free speech is easy to distinguish. It exists, for instance, between a paid Google search placement and the results of an organic search, or between a paid tweet and an authentic one.

The nonprofit organization Citizens United does a masterful job of conflating a documentary film, such as the one about Hillary Clinton at issue in the infamous Citizens United v. Federal Election Commission decision, and advertisements, which simultaneously promote the film and attack a candidate for office. One key flaw in the Supreme Court’s Citizens United ruling was not that it allowed the organization to pay for the production costs of that movie from its corporate treasury, but that it failed to distinguish that legitimate free press function with the paid speech in the thirty-second ads aired by the same organization. Those ads should have been subject to campaign finance regulations even if the movie itself was not. Likewise, the $1.2 million that Citizens United paid a cable company to stream its movie for free, contrary to its normal pay-for-view programming rules, should have been treated as a campaign expenditure, whereas a similar $1.2 million paid by viewers to watch the movie under normal marketplace rules would not.

Similarly, the New York Times’s endorsement of candidates in its editorial columns is not a campaign ad because readers purchase the Times to read its content, including its editorials. But, if the New York Times bought TV ads during Monday Night Football to promote the candidates it had endorsed, those ads would be subject to the same campaign finance rules that apply to everyone. The New York Times Company is not exempt from campaign finance rules because it is in the news business, but sales of its newspaper are part of the free press because people subscribe to the Times. This standard holds whether or not the Times (or any newspaper) operates as a corporation or just a group of unincorporated reporters and editors.

A Colorado court took more care than the Supreme Court in separating the free press aspects of a different Citizens United movie from the paid speech aspects of promoting that movie. In the case Citizens United v. Gessler, the Tenth Circuit Court ruled that the Citizens United organization must disclose the identity of the donors who paid for ads promoting a film that attacked Colorado governor John Hickenlooper, who was up for reelection when the ads were running. But, even though the organization looks more like a traditional political advocacy group than a news outlet, the court allowed Citizens United to pay for the movie’s production cost with unlimited and undisclosed contributions.⁵³

Limiting—Not Banning—Paid Speech

Even if we draw a bright line between speech that is paid for by the reader and advertisements funded by the speaker, we haven’t completely resolved the issue. Speech on one side of the line, that which is solicited by the reader, deserves absolute First Amendment protection. Because there is no limit to the number of books a person can buy or number of movies she can watch, there should be no limits on selling books, newspapers, or movie tickets.

But ads are different. As Harvard law professor Paul Freund wrote:

Campaign contributors are operating vicariously through the power of their purse rather than through the power of their ideas. I would scale that relatively lower in the hierarchy of First Amendment values. Television ads have their value surely, and yet in terms of the philosophy of the First Amendment seem to be minimally the kind of speech or communication that is to be protected. We are dealing here not so much with the right of personal expression or even association, but with dollars and decibels. And just as the volume of sound may be limited by law so may the volume of dollars, without violating the First Amendment.⁵⁴

Limits are different than a ban. As Justice Stevens noted, ads still deserve some protection. But because we have limited capacity to absorb information (as we discussed in chapter 1), everyone should decide for themselves what speech they want to hear and what they want to ignore. Thus, limits on campaign spending and advertising are justified to the extent that they enhance the ability of other opinions to be heard.

Those who benefit from unlimited campaign donations like to portray any limit on money in politics as a ban. But, limiting the amount that any deep-pocketed person or group can contribute toward airing a political ad does not ban the ad. It simply means that if the ad is going to be widely seen, many people will need to fund it or seek it out. Just as many people attending a city council meeting and each taking two minutes to make a point about the same topic will garner more attention than just one person speaking, campaign advertisements that represent the views of many small donors should garner more attention than those ads that represent the views of only one.

Similarly, requiring someone to pay for an ad using his or her own funds, rather than funds from a for-profit corporation, does not ban the ad. Corporate treasuries contain funds from many people who have invested for an economic purpose, not a political one. A corporate CEO, such as Chevron’s John Watson, should not be able to use his investors’ funds to promote his own political views or those of Chevron’s board. When you make a decision to invest funds in a mutual fund or a 401(k) retirement account that holds stock in Chevron, you are not considering whether you want to support the candidates Chevron favors. You’re just trying to save money for college or retirement.

Governments charter corporations and give them many privileges that individuals don’t have for specific and important purposes—namely to promote large-scale economic enterprises. Using those privileges for other purposes distorts the corporate charter and the political marketplace.⁵⁵

Removing the Junk with Information Filters

The same Richmond City Council meeting that limited the time each person could speak also discussed a proposal to reduce unwanted “junk mail.” The council eventually adopted a program that allowed city residents to remove their names from direct-mail company lists in order to reduce the number of catalogs, flyers, and other advertisements they received. The goal was not only to cut down on wasted paper, but also to reduce the clutter in people’s mailboxes—indeed the glut of information in our lives. While we rightly offer greater First Amendment protection to political mailers than we do to commercial mailers, the need to maintain some sort of information filters—to limit paid speech—remains paramount. This is the concept that we must clarify for our Supreme Court.

What you can do: Mute the ads

Hit the mute button during every political ad. Rather than relying on paid advertisements to inform you about candidates and ballot measures, do your own research. Subscribe to several news sources you trust and immediately throw any political mailers right in the recycling bin.