In late January, Justice Scalia drew the ire of Democrats and civil libertarians when he said the following about the flood of soft-money, political ads flowing from the 2010 decision in Citizens United v FEC: “I don’t care who is doing the speech — the more the merrier. People are not stupid. If they don’t like it, they’ll shut it off.” I wish I could agree with the justice that people are not stupid, but I do agree that it isn’t the Constitution’s job to make us smart.
I’m the kind of pedant who read the transcripts of this case shortly after the ruling was made; and I haven’t been able to get the recent notion out of my head that there’s a connection between reaction to that decision and the anti-SOPA/PIPA campaign. I’ll do my best to explain.
Citizens United intrigues me because it raises a paradox in that everyone who fears the influence of the ruling likely believes it is someone else who is susceptible to the wiles of PAC spending. Presumably, we each think we’re well-informed enough to see through the charade and that it is only other folks who will be manipulated by corporate interests. Of course, those other folks probably think the same thing, hence the paradox. If we were all truly well-informed, Scalia would be right, and the landmark ruling should be a pyrrhic victory for the manipulators. They could spend themselves into oblivion and not move the agenda in the slightest.
To the contrary, we know that PAC and SuperPAC spending has tremendous influence, so at least some of us are indeed unable to see the puppet strings in the process, which raises this question: If reliable data is the weapon against corporate influence, what if that “reliable data” is being disseminated by manipulating corporations in the first place? And that, my friends, is what the Internet enables in mass quantity, which brings me to the anti-SOPA campaign.
Both Citizens United and the anti-piracy battle raise First Amendment issues, albeit from very different perspectives. Scalia argued that a ruling in favor of the FEC in this case would have a chilling effect on free speech; and web industry lawyers argued the very same thing about certain sections of SOPA. While it would take a very long article to compare and contrast the First Amendment particulars of these two topics, an underlying principle that both appear to share is that the best way to protect free speech is to have more speech. If we look at the state of news and information in the digital age, I am personally dubious that more has made the information better. As such, I find myself wondering, does more makes us freer, or does more actually mean more opportunity for more manipulators not only to tell us what to think, but to make us believe we thought of it ourselves?
The protest of January 18th has been hailed as a landmark event in direct democracy, but I personally believe it was exactly the opposite. If 10+ million people read either bill plus analyses from each side before making their decisions, I’ll eat my hat and a cardigan for dessert. On the other hand, as I indicated in my last article in The Hill, if people were rallied by a manipulating industry to stop legislation in it’s tracks, then that is merely an illusion of democracy more insidious than all the lobbying and advertising in the world. Specifically, it is a manifestation of the very thing we fear about Citizens United.
Behind the cacophony of aggregate and mutant hype that led up to blackout day was a rhythm section pumping out a steady beat of blogs, emails, legal opinions, and claims that came from organizations like the The Electronic Frontier Foundation, The Sunlight Foundation, Change Congress, Free Press, and several others. All of these organizations are 501(c)(3)PACs that receive substantial support from tech and web companies like Google. That in itself is not a smoking gun. In fact, some of these organizations do some important, grass-roots work on civil liberties issues predicated on ideas that just so happen to dovetail with the business objectives of their backers. That is why PACs are effective — they often stand for principles we hold dear.
The point is that this protest so many believe was about the people taking charge was, in fact, more industry-backed and coordinated than its joiners probably realized. And my fear is that we just taught the next manipulating industry how cheaply and easily they could blast some other piece of legislation. Hence, before we shout too loud against the influence of Citizens United, we should learn to recognize a river of soft-money when we’re swimming in it.
© 2012, David Newhoff. All rights reserved.