The Supreme Court’s decision that makes money speech and therefore protected as free speech under the Constitution is problematic in two areas that I would like to address:

1. How can money be speech?
2. If money is speech how does it differ from speaking?

First, the most obvious observation is that money is not speech. You can place as many dollar bills on the counter that you want and it will never talk to you unless you have a serious mental illness. I assume the Supreme Court members do not have serious mental illnesses so how could they have arrived at this decision? Well, money buys television time and provides a huge megaphone for those that can afford it. However, buying television time is itself not yet speech. Literally, speech occurs in the commercial. Consider this, if a guy talks about robbing a bank he has not broken any law. However, if he actually robs the bank he is guilty of a crime. This is typical of many laws but not all as I will discuss later. Likewise, if Super PACs buy commercial time it is not the same as the speech that occurs in the commercial. It seems that, on the surface, suggesting that money is speech is a huge false equivocation. It would be like saying a tree is a house. Sure, you could cut a lot of trees up into boards and make a house with them but what is meant by ‘tree’ and ‘house’ are two distinct things. If the Supreme Court is using ‘money’ as a metaphor for ‘speech’ they are getting on very slippery legal grounds as metaphors can and do contain similarities between two referents but they also can and do contain dissimilarities between two referents. This tension is actually what makes a metaphor a metaphor otherwise the use of a metaphor would be unwarranted as a tree is a tree. A poet might suggest a tree is like a house providing shelter but a tree is not a house. If legal language opens to door to metaphor it is doomed. So, on the surface, it is very difficult to understand how money could be thought as speech. However, if we can get past that what if money is speech?

If money is free speech as the Supreme Court maintains then what about those without money? Sure, they have free speech – they are free to talk to themselves all they want. However, if speech means communication with others, don’t we have to look at how the speech of money differs from the speech of individuals? Money carries a big stick when it comes to ‘free speech’. It is not the power of dialectic persuasion, the logic of a better argument or the free market of ideas – it is the tried and true manipulative ability of marketing. When speech is rigged for pure manipulation the word we have for that is a ‘con’.

A con man manipulates others for their gain. This type of speech can result in illegal activity but the Supreme Court would support the view that the speech in itself is not illegal but only if the speech results in a crime. In this case, the crime is illegal but not whatever led up to it. While this is perfectly understandable, doesn’t it set up the stage for those with money to get others to do their dirty work while they get off scot free? In law there is a notion of conspiracy. If others conspire to commit a murder they can be held just as responsible as the actual murderer. Yes, the conspirators only committed a speech act but there is precedence for people to be held guilty of criminality for speech acts. However, conspiracy to commit the crime of murder has only relatively recently been deemed a crime. The gangsters of the roaring twenties would not have existed had it been a crime. So, law can and does change over time.

Many people find it ludicrous that the Wall Street investors that broke the country not only were rewarded well for doing it but none broke any laws. Yes, as President Bush admitted, we started the Iraq war by mistake and killed hundreds of thousands of people but no laws were broken. In a democracy laws are suppose to be of the people and for the people. When laws lose touch with their fidelity to this purpose we have the kangaroo court and the banana republic. When laws are circumvented by the state of exception (i.e., laws do not apply to such and such an exceptional condition, laws help this class of people but not this class) there is no systemic way to draw the line at what are the exceptional conditions and what are the applicable conditions. The more this occurs the more people lose faith in the system. Our demise as a country is dependent on the breakdown in faith in law. When law is lawless criminals are kings.

The identity of speech and money is covertly an identity of speech and power. Isn’t this the Orwellian dilemma of 1984? While money may be speech it is certainly power over the individual. This implicitly equates power to speech. Is power a crime? Well, perhaps not in an absolute, abstract sense but what about the propaganda of Hitler? Was his propaganda a crime? Well, according the ideal set by the Supreme Court, no. It was what people did with his rhetoric that was a crime. Doesn’t this notion of speech and money (viz. power) let Hitler of the hook scot free? As far as I know he never personally pulled the trigger himself so given a strict interpretation of power and speech, I guess we could not convict him in the United States. The other side of this question is the slippery slope argument. Where do you draw the line if some speech is not legal? Well, we already have drawn the line in the case of conspirators and murder and Hitler would certainly be guilty in this sense. The difference one might contest is that the speech of Hitler resulted in murder, a crime. The speech of political money does not directly result in a criminal act. Well, this is true. There is no crime in rigging the free market to throw folks out of their house (http://mixermuse.com/blog/2012/01/11/the-great-recession-how-the-free-market-got-rigged/). There is no crime letting people without health insurance die in the over-crowded emergency room. There is no crime letting kids go hungry without school lunches. There was no crime in letting older Americans die on the side of the road at the start of the Great Depression. There is no crime in 1 out of 2 Americans living at or near poverty. There is no crime in the haves and the have nots – it is capitalism – even if it results in misery and death. Well, this is actually correct – there is no crime. Laws are not equipped to handle this kind of disparity. This is the realm of morality in our country.

Morality is a type of law that is neither jurisprudence or optional. While we are certainly not obligated to have any concern for other people’s misery and suffering, no one gets put in jail for not caring. However, don’t we lose something that most people value by disregarding everyone else but ourselves? Don’t we set up a system in so doing that could just as easily target the a-moralist as the moralist? Is Darwinian fight for individual survival at everyone else’s expense the way to sustain a country? Isn’t there a least a need for a pretense to morality to hold the fabric of a community together? When the individual is held up over and against the need of an individual for their community isn’t anarchy the order of the day. Machiavelli called this the war of all against all; it is the world of Mad Max. Have we fundamentally misunderstood law if law is only an excuse for injustice? Has morality become the window dressing for oppression when it no longer motivates our laws? When these questions come to the fore it can truly be said that the fabric of our society is threatened. The system cannot be sustained under this duress. If it tears us apart we will be Afghanistan. We will be factions of tribes that cannot help but kill each other. We will have devolved. The insistence that money is speech opens the door for these thoughtful considerations.

Unfortunately, extremism has been pedaled recently that pits the fight for survival with the insistence of morality. Republicans are fond of telling us the sky is falling and national collapse is imminent unless we vote for a Republican. For the electorate, morality will lose in every case if survival is pitted against morality. Additionally, morality itself is more often than not historically speaking not very ‘moral’. The Germans thought of themselves as morally irreproachable while slaughtering millions in concentration camps. Our country allowed and condoned slavery in some cases based on ‘moral’ arguments. It may be that morality itself is a lie we tell ourselves but in any case it has a certain historical force of conviction. Even if it is denied altogether, the question of morality appears every time we face a person suffering and turn away. The fact is that those that pedal survival against moral responsibility have a self-defeating philosophy. Survival is not possible in the war of all against all. Sooner or later the tides turn on the strongest and their elitist bellowing turns to anguish; what goes around comes around. Morality is not optional even if survival is at stake. Even if morality itself is fraught with contradictions and difficulties we only deny its compulsion at our own expense. We have no choice but to find a way to authentically respond to the suffering of the other without losing our way in our efforts – trash talk about our survival may serve certain political goals but will not address the underlying problems.

Update 1-19-12

The case is actually concerning the restrictions previosuly set on corporations for political involvment. The court ruled that corporations are ‘people too’ and therefore entitled to free speech as individuals are…have to think about this some more…