Using this, I’d argue that “Corporations are not people” is somewhat valid as an example of the WAitW, since the idea is to put the emphasis on people, and everything else is just property, things. It puts Corporations in some abstract, undefined category of not-people things that, when phrased appropriately, can carry a strong connotation.
I fail to see the connotation in the “not-speech” for the third example though, and I don’t quite see how one would use that example to argue against or for money—the label / categorization doesn’t seem like it would sway anyone either way.
The money is not speech argument is used (just like the corporations are not people argument) to protest against the Supreme Court’s Citizens United ruling. The claim is that although speech is constitutionally protected, this does not mean that wealthy individuals have the right to spend large amounts of money to get their poltiical views heard (by, say, contributing to SuperPACs). The idea is: although it’s true that the government should not be allowed to prevent people from expressing their opinions, the government should be allowed prevent people from spending money to buy ads expressing their opinion because in that case the regulation is on the person’s expenditure of money, and money is not speech (or, if you prefer, money is not-speech).
I think this is an example of the WAitW. The first amendment gives Americans the right to free speech. Wealthy people claim that this means they can spend their considerable wealth in order to broadcast their opinions. After all, if the government can’t restrict my speech, surely that means the government can’t prevent me from utilizing my own resources as a medium for that speech. But, the leftist responds, the government can totally prevent wealthy people from doing this, because the wealthy people are spending money in order to get their opinions broadcast, and hey, money is not-speech, so like many other examples of not-speech, restricting its use is not a violation of the Bill of Rights.
the government should be allowed prevent people from spending money to buy ads expressing their opinion because in that case the regulation is on the person’s expenditure of money, and money is not speech (or, if you prefer, money is not-speech).
The first amendment gives Americans the right to free speech.
More conveniently, it prohibits Congress from regulating the freedom of the press, i.e. the printing press, i.e. the technological means of reproducing ideas so that others may consume them, as in television ads.
Which is why I found the Citizens United decision so baffling- the reasoning they used to reach their conclusion was not at all the reasoning I would have used. (But, then again, I would rule the vast majority of laws Congress outputs unconstitutional, which is one of the many reasons I have not been nominated to the Supreme Court.)
Now that sounds like “Money is speech” which is also a fit to WAiTW.
This highlights an ambiguity in what we mean by “Money is not speech”. It could mean “Money is a subset of (non-speech)” which is false since Money does talk in some cases.
Or it could mean “It is not the case that money is a subset of speech” which is more debatable, and definitely not WAItW. Expressed as a Venn diagram, Money and Speech may be overlapping circles with neither strictly contained in the other.
Not to get into the details, but there is at least a plausibility argument that “speech should be free only when it is free”. If you have to pay someone (or lots of someones) to speak on your behalf, why should your use of them as a mouthpiece be protected? If the people doing the actual speaking (or broadcasting) genuinely agreed with you, and thought it was worth saying, you wouldn’t have to pay them to say it...
Another, amusing, point is that the whole mechanism of broadcast licensing is a massive restriction of freedom of speech. True freedom to speak via broadcast would allow everyone to flood the electromagnetic spectrum simultaneously, drowning each other out in interference. That would destroy a public good of course, but once you admit that it is OK to restrict free speech to preserve a public good, you lose the whole “free speech is absolute, and must be protected” argument.
Sure. Heck, once I admit that it’s OK to prevent me from committing mass murder to assemble my manifesto out of rotting bodies, I have admitted that it’s OK to regulate the forms of speech.
Where I end up after that depends rather a lot on what I cared about in the first place.
For example, if what I care about is avoiding the differential suppression of ideas, I might end up with something like “the legality of expressing an idea I through medium M shall not depend on I.” Which allows for broadcast licensing and laws against expressive homicide… though it still doesn’t allow for obscenity or pornography or sedition laws. (Well, not laws against them, anyway.)
Quite true: If I genuinely care about the “differential suppression of ideas” then I will want to avoid suppression of the ideas of the poor by crowding them out of public discourse e.g. by flooding the airwaves with the ideas of the rich. There are more types of suppression to worry about than legal suppression.
However, this is now getting overly political, and off-topic...
That would probably fall under time or manner restrictions. Most free speech absolutists mean that speech should be free in a way that is independent of content. Time or manner restrictions are generally seen as ok by even most self-identified free speech advocates. The danger and ideological objection is to content based restrictions.
Banning defamation (knowingly making false statements to maliciously cause harm) is a content restriction which is pretty well supported even by serious free-speech folks — at least when the target is a private individual. Defamation of famous people, politicians, corporations, products, etc. is a somewhat less well supported idea.
Not to get into the details, but there is at least a plausibility argument that “speech should be free only when it is free”.
Well since even printing presses aren’t free, that would destroy freedom of the press even in its original meaning.
Another, amusing, point is that the whole mechanism of broadcast licensing is a massive restriction of freedom of speech. True freedom to speak via broadcast would allow everyone to flood the electromagnetic spectrum simultaneously, drowning each other out in interference.
There are other ways to solve this problem, e.g., treat spectrum as a property right and interference as trespass. In fact the (US) courts were moving in that direction before the 1934 federal power grad.
On printing presses not being “free” either (because you have to buy them) well this is getting into the details. However, it may help to distinguish the funding model. Consider two extreme models:
1) Funding comes from a grant or trust, and is used to buy the press, paper, salaries for journalists, press-operators etc. The funder has no say on what content gets printed (it is up to journalists’/editors’ discretion). Any proceeds from paper sales get paid back into the trust.
This seems like a case of truly free speech (in both senses of free) because no-one is paid to say anything in particular. So the journalists say what they agree with and think is worth saying. It pattern matches to an instance of free speech that we think is worth protecting.
2) Funding comes from a tyrant who owns the whole business, and uses it as a propaganda rag. He orders the journalists to print what he tells them, whether or not they agree with it, whether or not they believe it. If they don’t, they get fired. If they tell anyone what happened, they are sued under non-disclosure agreements.
This doesn’t seem like free speech in either sense (the speakers are being coerced), and doesn’t pattern-match to anything obviously worth protecting.
Cases where the funding comes from advertising look a bit more interesting. An initial pattern-match is that the ads themselves aren’t free speech that we particularly want to protect (outright lies about Snakeoil or distortions about competitor products can be restricted by an advertising standards body). Whereas any news or editorial comment is protected free speech, provided it is cleanly separated from the advertising, and the advertiser doesn’t have any control of its content. If a particular story was run because the advertiser demanded it, that isn’t protected. And so on.
On your other remark about spectrum being a property right: possible, but notice that it is still a massive restriction on free speech (by rights of property now, rather than by legislative censorship). And it shows up some of the problems with broad property rights; seems too similar to making air a property right, with trespass for anyone who breathes it without the owner’s permission.
Please note that “the advertiser doesn’t have any control of its content” doesn’t always hold: advertisers have the power to blackmail editors/newspapers with “if you publish that paper that attacks us, we won’t put advertising in your columns anymore”. They can exert a form of censorship, and induce self-censorship reactions “no, we won’t publish that article about the working conditions in company X, because company X is paying us a lot in advertising and we don’t want to upset them” even without company X having to do any explicit blackmail. This is not an easy problem to solve.
Yes, this is why advertising funding is an “interesting” case and falls between the extremes. One solution is “firewalls” between the department selling advertising space and the editorial team, so that explicit threats of blackmail can’t get through. The paper might need to show evidence of such firewalls to claim protection for pieces which are labelled as comment but look suspiciously-like paid-for advertising.
What is most difficult here is “self-censorship” whereby the editor knows that if he runs a particular story, then the advertising will dry up, and the paper risks going out of business. But this is not in principle different from dilemmas on readership such as “If I run this shocking story about what our troops are up to abroad, then I’ll sound unpatriotic, lose readers, and go out of business”.
There is self-censorship in almost all speech contexts (“If I say that, my friends will think I’m an idiot”, “If I post that, it will get down voted”). But the important point is that what emerges through the self-censorship filter is protected. The intuition here is that we don’t want to impose even more filters.
I agree with all three examples as WAITW even if the last two are negative. It’s also very rare that you can settle policy questions through the negation of a categorization. Corporations aren’t typical people and money isn’t typical speech, but neither of those observations settle the policy question or even debate it—these are just slogans.
The negative examples are different because they don’t suggest an argument, only a counterargument. If X is an apple then various conclusions (typically/intuitively) follow, for instance, that X is edible. But if X is a non-apple then nothing much follows from that; it only serves to block the apple-->edible argument (and suggest that X is not necessarily edible).
“Money is speech” implies that all of the protections that get applied to speech should be applied to spending. If money is not speech, then who knows? Nothing much follows directly from that (it’s not as if there’s some general principle that things which are non-speech should be banned); it just suggests that we don’t necessarily have to apply the speech protections to spending. It’s more similar to the “MLK was not a criminal” counterargument than to the “MLK was a criminal” argument (note that being a non-criminal doesn’t make someone especially admirable), but it doesn’t fall into the trap of being obviously false.
As a leftist, this seems like a useful exercise. Here are a few claims I’ve heard more than once from fellow leftists that might qualify.
A fetus is a clump of cells.
Corporations are not people.
Money is not speech.
The first one is a good leftist example of the WAitW… and with a bit of shame I’ve to admit I used it in the past.
I wouldn’t say the other two qualify because they are negatives. “X is not Y” is quite different from a rethorical perspective than “X is Y”.
Let Y = (Not Z)
X is Y.
Using this, I’d argue that “Corporations are not people” is somewhat valid as an example of the WAitW, since the idea is to put the emphasis on people, and everything else is just property, things. It puts Corporations in some abstract, undefined category of not-people things that, when phrased appropriately, can carry a strong connotation.
I fail to see the connotation in the “not-speech” for the third example though, and I don’t quite see how one would use that example to argue against or for money—the label / categorization doesn’t seem like it would sway anyone either way.
The money is not speech argument is used (just like the corporations are not people argument) to protest against the Supreme Court’s Citizens United ruling. The claim is that although speech is constitutionally protected, this does not mean that wealthy individuals have the right to spend large amounts of money to get their poltiical views heard (by, say, contributing to SuperPACs). The idea is: although it’s true that the government should not be allowed to prevent people from expressing their opinions, the government should be allowed prevent people from spending money to buy ads expressing their opinion because in that case the regulation is on the person’s expenditure of money, and money is not speech (or, if you prefer, money is not-speech).
I think this is an example of the WAitW. The first amendment gives Americans the right to free speech. Wealthy people claim that this means they can spend their considerable wealth in order to broadcast their opinions. After all, if the government can’t restrict my speech, surely that means the government can’t prevent me from utilizing my own resources as a medium for that speech. But, the leftist responds, the government can totally prevent wealthy people from doing this, because the wealthy people are spending money in order to get their opinions broadcast, and hey, money is not-speech, so like many other examples of not-speech, restricting its use is not a violation of the Bill of Rights.
Buckley v. Valeo disagrees.
More conveniently, it prohibits Congress from regulating the freedom of the press, i.e. the printing press, i.e. the technological means of reproducing ideas so that others may consume them, as in television ads.
Which is why I found the Citizens United decision so baffling- the reasoning they used to reach their conclusion was not at all the reasoning I would have used. (But, then again, I would rule the vast majority of laws Congress outputs unconstitutional, which is one of the many reasons I have not been nominated to the Supreme Court.)
I thought the more common claim is that spending money just is self-expression, and therefore protected.
Now that sounds like “Money is speech” which is also a fit to WAiTW.
This highlights an ambiguity in what we mean by “Money is not speech”. It could mean “Money is a subset of (non-speech)” which is false since Money does talk in some cases.
Or it could mean “It is not the case that money is a subset of speech” which is more debatable, and definitely not WAItW. Expressed as a Venn diagram, Money and Speech may be overlapping circles with neither strictly contained in the other.
The choice of what to spend on, not the act of spending.
Not to get into the details, but there is at least a plausibility argument that “speech should be free only when it is free”. If you have to pay someone (or lots of someones) to speak on your behalf, why should your use of them as a mouthpiece be protected? If the people doing the actual speaking (or broadcasting) genuinely agreed with you, and thought it was worth saying, you wouldn’t have to pay them to say it...
Another, amusing, point is that the whole mechanism of broadcast licensing is a massive restriction of freedom of speech. True freedom to speak via broadcast would allow everyone to flood the electromagnetic spectrum simultaneously, drowning each other out in interference. That would destroy a public good of course, but once you admit that it is OK to restrict free speech to preserve a public good, you lose the whole “free speech is absolute, and must be protected” argument.
Sure. Heck, once I admit that it’s OK to prevent me from committing mass murder to assemble my manifesto out of rotting bodies, I have admitted that it’s OK to regulate the forms of speech.
Where I end up after that depends rather a lot on what I cared about in the first place.
For example, if what I care about is avoiding the differential suppression of ideas, I might end up with something like “the legality of expressing an idea I through medium M shall not depend on I.” Which allows for broadcast licensing and laws against expressive homicide… though it still doesn’t allow for obscenity or pornography or sedition laws. (Well, not laws against them, anyway.)
Quite true: If I genuinely care about the “differential suppression of ideas” then I will want to avoid suppression of the ideas of the poor by crowding them out of public discourse e.g. by flooding the airwaves with the ideas of the rich. There are more types of suppression to worry about than legal suppression.
However, this is now getting overly political, and off-topic...
That would probably fall under time or manner restrictions. Most free speech absolutists mean that speech should be free in a way that is independent of content. Time or manner restrictions are generally seen as ok by even most self-identified free speech advocates. The danger and ideological objection is to content based restrictions.
Banning defamation (knowingly making false statements to maliciously cause harm) is a content restriction which is pretty well supported even by serious free-speech folks — at least when the target is a private individual. Defamation of famous people, politicians, corporations, products, etc. is a somewhat less well supported idea.
Well since even printing presses aren’t free, that would destroy freedom of the press even in its original meaning.
There are other ways to solve this problem, e.g., treat spectrum as a property right and interference as trespass. In fact the (US) courts were moving in that direction before the 1934 federal power grad.
On printing presses not being “free” either (because you have to buy them) well this is getting into the details. However, it may help to distinguish the funding model. Consider two extreme models:
1) Funding comes from a grant or trust, and is used to buy the press, paper, salaries for journalists, press-operators etc. The funder has no say on what content gets printed (it is up to journalists’/editors’ discretion). Any proceeds from paper sales get paid back into the trust.
This seems like a case of truly free speech (in both senses of free) because no-one is paid to say anything in particular. So the journalists say what they agree with and think is worth saying. It pattern matches to an instance of free speech that we think is worth protecting.
2) Funding comes from a tyrant who owns the whole business, and uses it as a propaganda rag. He orders the journalists to print what he tells them, whether or not they agree with it, whether or not they believe it. If they don’t, they get fired. If they tell anyone what happened, they are sued under non-disclosure agreements.
This doesn’t seem like free speech in either sense (the speakers are being coerced), and doesn’t pattern-match to anything obviously worth protecting.
Cases where the funding comes from advertising look a bit more interesting. An initial pattern-match is that the ads themselves aren’t free speech that we particularly want to protect (outright lies about Snakeoil or distortions about competitor products can be restricted by an advertising standards body). Whereas any news or editorial comment is protected free speech, provided it is cleanly separated from the advertising, and the advertiser doesn’t have any control of its content. If a particular story was run because the advertiser demanded it, that isn’t protected. And so on.
On your other remark about spectrum being a property right: possible, but notice that it is still a massive restriction on free speech (by rights of property now, rather than by legislative censorship). And it shows up some of the problems with broad property rights; seems too similar to making air a property right, with trespass for anyone who breathes it without the owner’s permission.
Please note that “the advertiser doesn’t have any control of its content” doesn’t always hold: advertisers have the power to blackmail editors/newspapers with “if you publish that paper that attacks us, we won’t put advertising in your columns anymore”. They can exert a form of censorship, and induce self-censorship reactions “no, we won’t publish that article about the working conditions in company X, because company X is paying us a lot in advertising and we don’t want to upset them” even without company X having to do any explicit blackmail. This is not an easy problem to solve.
Yes, this is why advertising funding is an “interesting” case and falls between the extremes. One solution is “firewalls” between the department selling advertising space and the editorial team, so that explicit threats of blackmail can’t get through. The paper might need to show evidence of such firewalls to claim protection for pieces which are labelled as comment but look suspiciously-like paid-for advertising.
What is most difficult here is “self-censorship” whereby the editor knows that if he runs a particular story, then the advertising will dry up, and the paper risks going out of business. But this is not in principle different from dilemmas on readership such as “If I run this shocking story about what our troops are up to abroad, then I’ll sound unpatriotic, lose readers, and go out of business”.
There is self-censorship in almost all speech contexts (“If I say that, my friends will think I’m an idiot”, “If I post that, it will get down voted”). But the important point is that what emerges through the self-censorship filter is protected. The intuition here is that we don’t want to impose even more filters.
Or even go one step further: a group of people threaten to boycott companies that advertise on shows saying politically incorrect things.
I agree with all three examples as WAITW even if the last two are negative. It’s also very rare that you can settle policy questions through the negation of a categorization. Corporations aren’t typical people and money isn’t typical speech, but neither of those observations settle the policy question or even debate it—these are just slogans.
The negative examples are different because they don’t suggest an argument, only a counterargument. If X is an apple then various conclusions (typically/intuitively) follow, for instance, that X is edible. But if X is a non-apple then nothing much follows from that; it only serves to block the apple-->edible argument (and suggest that X is not necessarily edible).
“Money is speech” implies that all of the protections that get applied to speech should be applied to spending. If money is not speech, then who knows? Nothing much follows directly from that (it’s not as if there’s some general principle that things which are non-speech should be banned); it just suggests that we don’t necessarily have to apply the speech protections to spending. It’s more similar to the “MLK was not a criminal” counterargument than to the “MLK was a criminal” argument (note that being a non-criminal doesn’t make someone especially admirable), but it doesn’t fall into the trap of being obviously false.