FREE SPEECH — Stanley Fish's profession is English, not law, and like Anthony Lewis's journalism, the writer's gift makes him the best kind of expositor of what the courts have said and done. In the New York Times Fish has now presented the clearest explanation of the two colliding First Amendment views seen in the majority opinion and dissent in the much-commented corporate free speech case of recent days. Fish notes that the "principled" view says speech must be free, no matter the prospects for its corruptive effect, no matter whose speech it is, while the "consequentialist" view says curbs may be necessary to reduce the threat of corruption, given the nature and power of the speaker.
The consequentialist and principled view of the First Amendment are
irreconcilable. Their adherents can only talk past one another and
become increasingly angered and frustrated by what they hear from the
other side. This ongoing soap opera has been the content of First
Amendment jurisprudence ever since it emerged full blown in the second
decade of the 20th century. Citizens United is a virtual anthology of
the limited repertoire of moves the saga affords. You could build an
entire course around it. And that is why even though I agree with much
of what Stevens says (Im a consequentialist myself) and dislike the
decision as a citizen, as a teacher of First Amendment law I absolutely
love it.
What Fish's analysis does not acknowledge, for to do so would mean a much longer treatment, is that the Supreme Court has always been ready enough to take a consequentialist viewone which this majority would never abandonwhen the threat of damage is not to democracy but to reputation, decency or national security. Corruption of the political process may not be a serious enough evil to remove free speech protection, but libel, obscenity and publication of military secrets are. In none of those cases is actual damage required to be proven; it is presumed as a natural consequence of the speech, and the presumption is not rebuttable.
