From A Nation Forum: Is First Amendment Absolutism Obsolete?
The Nation Magazine
, July 21, 1998, p. 12

Ronald K.L. Collins
David M. Skover

SPEECH IS POWER. Grant that, then rethink your thinking on the First Amendment. Why? Because in a true democracy power must be limited and dispersed. By that measure, much current First Amendment law is anti-democratic.

The problem: Yesterday's free speech principles have become today's power principles--for the powerful. The problem traces back at least to 1886, when the Supreme Court first treated corporations as persons entitled to constitutional liberties. Ironically, a Civil War guarantee designed to limit the excesses of power was tapped to maximize such power. Thus, as Howard Zinn has noted, between 1890 and 1910 the Court employed the Fourteenth Amendment in nineteen race cases, as contrasted with 288 corporate cases.

Much the same holds for the modern First Amendment, as the conglomerate likes of General Electric, Time Warner, RJR Nabisco, Anheuser-Busch and Exxon seek to shield their pecuniary propaganda. For more than two decades, commercial expression has received increasing attention and heightened levels of constitutional protection. In the past five years alone, corporations or business interests have been the lead parties raising First Amendment claims in approximately 60 percent of the free expression opinions rendered by the Court.

From Progressive Ideals to Commercial Values

The trend of ceding power to the powerful represents the collapse of liberalism into libertarianism, the triumph of corporate liberty over social equality. Equality is really no longer one of the central principles of the First Amendment. Incredibly, it is now a First Amendment evil.

The transformation from old progressive ideals to new laissez-faire values has much to do with the rise of commercial culture. In that culture, communication is the handmaiden of commerce, to the point that "commercial speech" is a redundancy. We face a paradox: If the First Amendment can no longer promote progressive values, it is because the commercial marketplace no longer especially value them. No wonder, then, that the same liberals who first defended the commercial culture later defended the corporate rights of those who made the excesses of that culture possible.

From Citizen Democracy to Corporate Democracy

Money is speech, the Court tells us. But it is more than that --it is power. And when moneyed speech receives new absolute protection, the power dynamic of freedom changes immensely. Corporations and special interests sway elections; advertisers (directly or indirectly) shape the content of newspaper and other media stories; media giants demand unobstructed rights to use the public airwaves; and tobacco companies invoke Justice Hugo Black to protect their "right" to market death. In the process, citizen democracy succumbs to corporate democracy.

What to do? For starters, liberate the public discourse of the First Amendment from lawyers and law professors and open it up to other perspectives. Next, realize that restraints on commercial and corporate speech are also restraints on our commercial culture. To get "them," we must first get ourselves. Also, we need more "culture jamming," whereby commercial messages are appropriated for anti-commercial purposes. Billboard example: a coffin in the shape of a vodka bottle with the caption, "Absolut Death."

Fight commercialism. An impossible task? Perhaps. Then again, it is also cause for a new fighting faith.

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