DEMOCRATIC EXPRESSION
AND THE MASS MEDIA

Politicians and their constituents can talk, but money as speech speaks much louder. Aspects of our present political system amount to a legal pay-to-play system, in which the wealthiest can leverage indirect influence over elections (manipulating issues by buying lots of advertising) and more direct influence over legislation (manipulating politicians who desperately want money to pay for campaign advertising).1 There is plenty of evidence that a majority of Americans dislike this system. For example, a national poll in 2014 found that 75 percent of Americans think “wealthy Americans have a better chance than others of influencing the election process.” Another 71 percent responded that campaign contributions by individuals should be limited, and 76 percent said spending on ads by unaffiliated groups should be limited.2 This influence has been defended on First Amendment grounds. Here is what the First Amendment (adopted in 1791) says about money as speech in political campaigns:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise there of; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In other words, it says nothing explicitly about money. Yet money now counts as speech, protected by the First Amendment. So how did we end up here?

Ironically, it started with Congress’s intention to control the amount of money in elections. In 1974, emerging from the Watergate scandal (President Nixon’s illegal tactics in the 1972 election), Congress amended federal election law to further limit campaign contributions. Two years later, in Buckley v. Valeo (1976), the U.S. Supreme Court suggested for the first time that political contributions count as speech. The court argued that restrictions on campaign money “necessarily reduce[d] the quantity of expression by restricting the number of issues discussed, the depth of the exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”

Over the ensuing years, Congress has tried to again rein in campaign finance with new laws, but federal courts, beholden to the idea that money equals speech, have always struck them down. This brings us to the current state of our national elections. The two main political parties and their supporters spent an estimated $6 billion on campaign advertising for the 2012 election, more than doubling the previous record. The main reason for the new record was the unlimited amount that corporations and rich individuals could now spend, thanks to another decision by the Supreme Court, Citizens United v. Federal Election Commission (2010). The five-to-four decision said that it was a violation of First Amendment free-speech rights for the federal government to limit corporate or union spending for TV and radio advertising, usually done through organized Super PACs (political action committees), which are most often sponsored by corporate interests or super-rich donors.

While the Supreme Court decision ran counter to public opinion, many advocates on the political Right and some on the Left offered that the First Amendment means what it says: “Congress shall make no law.” Traditional First Amendment supporters like Gene Policinski of the First Amendment Center argue that the “good intentions” behind the idea of limiting campaign spending “don’t justify ignoring a basic concept that the Supreme Court majority pointed out in its ruling: Nothing in the First Amendment provides for ‘more or less’ free-speech protection depending on who is speaking.”3

An advantage in advertising spending is only one of many variables; Obama still won reelection in 2012 despite more national party, Super PAC, and campaign spending.4 Nevertheless, those with limited means are at a clear disadvantage compared to those who have money when it comes to buying expensive commercial speech and shaping the direction of a presidential campaign. Harvard Law School professor Lawrence Lessig argues that money corrupted American politics long before the Citizens United ruling. “Politicians are dependent upon ‘the funders’—spending anywhere from 30 percent to 70 percent of their time raising money from these funders,” he wrote. “But ‘the funders’ are not ‘the People’: .26 percent of Americans give more than $200 in a congressional campaign; .05 percent give the max to any congressional candidate; .01 percent—the 1 percent of the 1 percent—give more than $10,000 in an election cycle; and .0000063 percent have given close to 80 percent of the super PAC money spent in this election so far. That’s 196 Americans.”5 Given the Citizens United ruling, what can be done to give all citizens a voice in the campaign finance system and make them “patrons” of the political process?

THE CULTURAL AND POLITICAL STRUGGLES OVER WHAT CONSTITUTES FREE SPEECH or free expression have defined American democracy. In 1989, when Supreme Court Justice William Brennan Jr. was asked to comment on his favorite part of the Constitution, he replied, “The First Amendment, I expect. Its enforcement gives us this society. The other provisions of the Constitution really only embellish it.” Of all the issues that involve the mass media and popular culture, none is more central—or explosive—than freedom of expression and the First Amendment. Our nation’s historical development can often be traced to how much or how little we tolerated speech during particular periods.

The current era is as volatile a time as ever for free-speech issues. Contemporary free-speech debates include copyright issues, hate-speech codes on college and university campuses, explicit lyrics in music, violent images in film and television, the swapping of media files on the Internet, and the right of the press to publish government secrets.

In this chapter, we will:

One of the most important laws relating to the media is the First Amendment (see pages 537–538 for its full text). While you’ve surely heard about its protections, do you know how or why it was put in place? Have you ever known someone who had to fight to express an idea—for example, was anyone in your high school ever sent home for wearing a certain T-shirt or hat that school officials deemed “offensive”? Have you ever felt that your access to some media content was restricted or censored? What were the circumstances, and how did you respond? For more questions to help you understand the role of freedom of expression in our lives, see “Questioning the Media” in the Chapter Review.