There is no substitute for free speech

April 7, 2018

I saw this article this morning:

A judge ruled yesterday that the Federal Election Commission could go ahead with a sharply limited investigation of the Reader’s Digest for distributing videotapes about Senator Edward M. Kennedy’s automobile accident at Chappaquiddick. . .

The case grew out of an article in the magazine last year about the 1969 accident on the island of Chappaquiddick. . . The publisher, the Reader’s Digest Association, distributed to television stations videotapes of a computer re-enactment of the accident, presumably to promote the article.

Last August the Federal Election Commission received a complaint from an Oregon resident saying that the publisher had distributed the tapes to harm Senator Kennedy’s race for the Democratic Presidential nomination, thereby making campaign contributions that were not permitted to corporations.

This was making the rounds because of the Chappaquiddick movie, but I think it’s very interesting it its own right. RecallĀ Citizens United, the 2010 Supreme Court decision that found that the First Amendment’s protection of free speech applies to everyone, including people who work for corporations. Many on the left were very upset about the decision, feeling that corporations (and, by extension, their staff) ought not to have the right to free speech.

Whenever anyone raises the horror of corporations speaking, I point out that essentially every single newspaper, magazine, publishing house, television network, movie studio, record label, social-media platform, church, private university, and special-interest group is a corporation. If you exclude corporation from free speech, you have eviscerated free speech.

Some have countered that when free-speech protection is removed from those institutions, they will continue to be protected by the freedom of the press. (Well, not churches, etc., but let’s set them aside for now.) There are few problems with this theory. First, it’s wrong as a matter of legal precedent and history. As Eugene Volokh explains, the freedom of speech and the press are a single clause; the press is mentioned in order to clarify that the freedom is not limited to spoken communication. But as a novel legal theory, I guess it was good enough for the Citizens United dissenters.

But, returning to the article, this Readers Digest incident shows how threadbare that protection would be. Here you have a major magazine, unambiguously protected by the Freedom of Speech, and a court still found that it might be improper for them to publish material outside their usual medium!

And don’t be consoled by the fact that the FEC’s investigation ultimately went nowhere (I assume). Free speech requires breathing room, and an investigation alone is enough to create a chilling effect. As a Washington Post writer put it in 1981:

If the commission insists on following the pattern it has established, every news organization in the country taking a position on any national candidate could find itself having to prove in exhausting, unnecessary and ridiculous detail that it is not a political entity and has not illegally used corporate funds in performing its clear First Amendment prerogatives.