Free Speech Is A Lap Dance

Copyright © by Len Holman, 7/5/12


  Amid the instant analysis of the Supreme Court’s last decisions of its term, the breathless wonder at Chief Justice Roberts’ support of Obamacare and the get-your-knickers-in-a-bunch speculation about the Arizona immigration law, one issue has largely escaped much attention.  It is the Montana case which the Court refused to hear, the one in which the Montana Supreme Court upheld a state law limiting independent political spending by corporations, the one which continues the idea that the Citizens United decision, which has transformed American politics into a commodities exchange, is the firm, unequivocal law of the land.  It is the case in which the Court made a great circle of an argument, saying that since the Citizens United case was now law and constitutional, and since the Montana law flies in the face of that decision, then—ipso facto—the Montana folks will just have to put up with what everyone else does:  too much money from too many places for too many vested, partisan and venal interests. 

  Too bad.  This ruling re-affirmed the Court’s idea that money is speech.  Supporters of the Court’s decision said it was a “victory for free speech,” which—by the logic of the verdicts the Court has rendered—means a “victory for money.”  The Court didn’t say that money can BUY speech, which is certainly true, since TV and other media ads cost a ton.  It said that money EQUALS speech.  It said that Montana, or any other entity, could not restrict who could give how much money to any campaign, as shown in the attempted recall of Wisconsin governor Scott Walker, where 43 million dollars came in on his side—some of it, no doubt, from poor homeless children on crutches.  Sure. 

  So now we have a situation where, sooner or later, someone will sue a police department for an arrest made in a gentleman’s club, for an illicit lap dance.  This person will claim his free speech rights were violated because he PAID for that lap dance, and he will further claim that, since money is speech, his speech was restricted, as is the free speech of all the other patrons of that little room behind the red curtain who shell out good money for a penetrating look at American commerce, and thus the ordinance which forbids such encounters is unconstitutional.  In Texas v. Johnson, the Court ruled that flag burning was “expressive conduct” and thus consistent with the first amendment.  The statute was not written narrowly enough to limit the burning to breaches of the peace, and conservatives have been sulking ever since.  Now they have a reason to cheer, since it is far more free-speechier to have a lap dance or funnel millions into an out-of-your-state campaign than it is to burn a flag. 

  This decision to allow money from everywhere in the cosmos to be sloshed into some particular political race is amusing, for a woman who goes into a Sears store can now say, “I want my free speech fridge in stainless steel.”  Speech becomes a commodity, a product to be sold and bought.  Is this what the Founders meant when they crafted that 1st amendment? Where is Justice Scalia’s smug intellectualism and moral outrage over this warping of “originalism”?  Leibniz’ theory of the Identity of Indiscernibles states that there cannot be separate objects or entities that have all their properties in common.  In other words, two things are identical if they share all the same properties.  Are money and speech in this category?  Are money and speech identical because they share they share all the same properties? 

  The Founders had political speech in mind when they crafted the First Amendment, and the Court has taken that to mean that money IS political speech.  Logically, showing a case, like flag-burning, which is NOT money does not rule out the premise—which could be re-stated to say that in the world of free speech (picture a big circle drawn on paper, labeled, “free Speech” which is all the free speech in the universe, then inside that circle is a smaller circle—getting bigger all the time—which can be labeled “money.”)  Even if you do this, you can see that, while money is a subset of free speech, it is not identical with it, does not share ALL properties with it.  If it did, then every consumer acting in the marketplace could be considered as exercising his or her 1st amendment rights, including child slavery, the drug business, and contract killing for the Albanian mob—and couldn’t be sanctioned just for the transaction alone.    

  If money is free speech, then free speech is money, and every time some man in strange clothes and a glazed and wild look in his eye climbs up on a box in a public square to denounce dry-erase markers as emitting toxic fumes which are hazardous to schoolchildren’s health and which must be banned, he should get a check from the Koch Brothers or Clarence Thomas or someone.  Some people have so much free speech they buy five million-dollar homes in Malibu, tear them down and build ten million-dollar homes.  Some people have so little free speech they sleep on steam grates and eat out of dumpsters.  There will come a time—and it looms not so far in the future—when that pneumatic blonde at your favorite club, the one with the Tupperware implants and see-thru bikini, will be the only reliable and Supreme Court-sanctioned guarantor of your free speech rights.


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