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Unlimited Speech, Limited Amplification

February 5th, 2012 by dk

Shopping for an anniversary gift is always harder the second year than the first. Any romance can still have a warm glow after twelve months. The second year begins what my friend Dan calls “the dirty sock era.” Certain things that always were odorous begin to stink. It’s just how it goes.

As with romance, so with law.

United States Supreme Court handed down a ruling two years ago today that freed corporations to spend unlimited amounts for political campaigns. Citizens United v. Federal Election Commission extended the concept of corporate personhood and unleashed vast new sources for campaign financing.

After one year, couples celebrate their “paper” anniversary. The second year’s gift is supposed to be cotton. A year ago, Citizens United may have looked good on paper, at least to some. This year, voters may be reaching for cotton to stick in their ears.

Disgust with Citizens United is what seems to have united citizens. Tea Party activists decry the loss of personal freedoms and the Occupy Wall Street crowd bemoans the corporate greed. Some have matched this ruling with the Supreme Court’s Dred Scott v. Sandford — as a pair of dirty socks.

That 1857 ruling stated that slaves were not entitled to the inalienable rights for which this country declared its independence. Dred Scott declared certain persons to be non-persons. Citizens United declared certain non-persons to be persons. The Dred Scott Decision precipitated our Civil War. How the current uproar will be resolved remains to be seen.

Freedom of speech was clearly top of mind when this nation’s Bill of Rights was constructed. It’s in the document’s first sentence, after freedom of religion and before freedom of assembly. Freedom of speech must not be abridged.

Does that freedom more rightfully belong to the “power of the people” or to the “people of power?” The Supreme Court may have done the nation a favor, by arranging a shotgun wedding between capitalism and democracy. If the two cannot be joined lawfully after more than a century of sleeping together, now would be a good time to find out.

Occupy Wall Street crowds peaceably assembled in cities across the country to exercise their free speech right, and how did authorities react? They unplugged them, arguing that their freedom of speech does not include a right to amplification.

If flesh-and-blood persons, peaceably assembled, can be denied the electronic amplification of their voices, the same standard can be applied to corporations. Speech itself must not be regulated. But our amplification, duplication and distribution of speech is not mentioned in our Bill of Rights.

Thomas Edison patented his “electromotograph” in 1877. Before that, the most effective means of extending your voice was by cupping your hands around your lips or standing on high ground.

Money has been called a megaphone for free speech, but that metaphor is not quite right. Hands around lips form a megaphone, but money is a microphone. A microphone is useless unless it’s connected to power and infrastructure.

That infrastructure is owned by the people and regulated by the government. Electricity comes from dams or power plants built with (or guaranteed by) taxpayer money. Cable television is delivered by wires hung from power poles or snaked beneath roads. Airwave frequencies are segmented and auctioned by federal agencies. Newspapers reach readers via public streets, as does the daily mail.

Of all these avenues for distribution, only roads were envisioned by the framers of our Constitution. They would have agreed that a Pony Express rider who trampled a pedestrian could not avoid prosecution by claiming he and his horse were merely exercising their freedom of speech. Personal freedoms and the common good always have shared the realm.

Occupy Wall Street invented a brilliant workaround to the no-amplification rule. They developed what they call “the People’s Mic.” Messages are conveyed in short phrases that are then repeated by all who can hear. The responding chorus is self-amplifying, as it’s then repeated by all who can hear, extending as far as it must.

Corporations will need a solution at least that clever if the two-year-old marriage of capitalism and democracy has any hope to endure.


Don Kahle ( writes a column each Friday for The Register-Guard and blogs.

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