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Glenn Greenwald is one of my favorite writers.  I’m not sure if there is a more logical and precise thinker in the blogosphere.  He’s rigorously honest.  He doesn’t get caught up in partisan contretemps and he doesn’t permit his personal views to obstruct his dispassionate analysis.  Liberal or conservative, Democrat or Republican, if you are wrong, Greenwald will let you know.

This often makes for some interesting discussions, like this one.  As Greenwald says, most liberals have joined him in criticizing the mayors of Boston and Chicago for their disregard for the 1st Amendment as it pertains to Chick-Fil-A.  Lee Fang was not one of those liberals and, as such, drew Greenwald’s attention.  I recommend that you read the back and forth between them, but I want to take up a challenge Greenwald presents.  He posits a series of questions for folks that believe the mayors may be justified in exercising government power to ban Chick-Fil-A from their cities:

(come with me, under the orange cloud)

Here's Greenwald and his questions:

I’d like everyone to suppose that the following actions are taken by the state, and then for each, tell me whether you believe it would or would not be Constitutional:

Congress enacts a law that states: No business incorporated in America, whether for-profit or non-profit, shall be permitted to donate any of its money to groups espousing liberal ideas. Any business found to be in violation of this prohibition shall be guilty of a Class A felony. Corporate donations to groups espousing conservative causes shall still be permissible and legal.

A city enacts an ordinance that states: Any business found to have donated money to any group that advocates same-sex marriage or abortion rights (including Human Rights Campaign and Planned Parenthood) shall be barred from doing business within the city limits. Businesses shall still be permitted to donate money to groups which advocate against same-sex marriage or against abortion rights.

The FBI enacts an internal policy — and then implements it — which provides: any advocacy group incorporated under the laws of any of the United States (including the ACLU or Amnesty) shall have their offices searched, their files seized, and their assets frozen each time they use funds from their General Treasury for advertisements opposing American wars or foreign policy. Advertisements supporting American wars or foreign policy shall not trigger such actions.

The IRS enacts an internal policy — and then implements it — which provides: any advocacy group incorporated under the laws of any of the United States (including Planned Parenthood or Americans United for Separation of Church and State) which express views hostile to Christians shall be automatically audited and subject to fines.

Texas Governor Rick Perry issues an Executive Order that proclaims (and the Legislature then ratifies): In light of the recent $2.5 million donation by Amazon CEO Jeff Bezos to enact same-sex marriage, Amazon is hereby barred from doing business in the state of Texas.

The state of Idaho enacts a law that provides: No labor union shall be permitted to spend any of its money from its General Treasury to advocate for changes to labor laws that would make it easier to unionize, nor shall they be permitted to donate union funds to any political candidate or group advocating for such changes.

Before I answer Greenwald's questions, I think it may be useful to provide the text of the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; 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.
Also by way of prelude, I want to proffer that my thoughts are not fully developed here, and I may well be heading down a dangerous path.  (Some good ol' First Amendment freedom of speech may convince me so, or otherwise...)  The idea is that freedom of speech is a cornerstone of any healthy system of citizen-driven government.  You simply cannot nibble away at the rights our First Amendment protects without first providing an exceedingly compelling reason.  Moreover, if we decide that it is desirable (or necessary) to diminish the scope of our First Amendment rights, we should do no more than is absolutely necessary.  

I'll finish setting the table by posing a few questions of my own.  Keep this question in mind as we progress through the rest of our discussion:

Should Chick-Fil-A stores be allowed to hang a sign on their entrance door that says: "This is private property.  If you are black, jewish, Muslim, gay or an immigrant, we don't like your type and you may not enter.  If you do enter, you will be trespassing and we will utilize all means at our disposal to eject you from our premises."

Should Chick-Fil-A stores be allowed to hang a sign on their entrance door that says: "We at Chick-Fil_A do not like Negroes, Jews, Muslims, immigrants, gays and other genetically defective individuals.  The government says we have to serve you, but we don't like it.  Eat here at your own risk."

Of course, I ask my questions because it demonstrates the point that our government has already acted to limit some speech.  Businesses, in fact, are not (by law) allowed to hang such signs.  If they did, our government would enforce the law.  The business would remove the sign or, eventually, be forcefully closed.  And it wouldn't matter if the business did anything beyond hanging the sign - the sign itself is the violation.

Would anyone dare argue that the signs aren't speech?  Would anyone argue they don't express a political viewpoint?

So how are those signs different from the President of the Chick-Fil-A saying something very similar?

The point I'm driving toward is that the United States has decided that discriminatory speech (and the freedom of contract, and the right to free assembly) can be limited, at least when it occurs in the course of commerce.

And that is how I would answer Glenn's questions.  Glenn's questions just aren't relevant to this analysis.  None of them involve discrimination on the basis of one's genetic make-up.  Chick-Fil-A's President did make statements that implied (at least) discriminatory intent.  It would probably have been advisable for the Mayors of Chicago and Boston to develop the facts more thoroughly to better justify their own statements, but we should not pretend that the statements made by Chick-Fil-A's president were pure political speech when we can draw upon a series of legal settlements, media reports and the company's own documents to establish a policy and culture of prejudice targeting several protected minorities.  I'm not sure what the local laws are in Boston or Chicago, but if they've passed  laws establishing equal rights for gays, Chick-Fil-A's statements may well be relevant to their right to operate in those cities.

To be as succinct as possible, I think the difference between Glenn's thought experiments and the situation with Chick-Fil-A is that each of Glenn's hypotheticals have the government acting arbitrarily, with caprice, against, presumably, actors it doesn't like, merely because it doesn't like them.  The Chick-Fil-A situation would have the Mayors acting to protect human rights, which is something we should all expect from our governments.

I'll concede that the line between political speech and speech that can be construed as an expression of corporate policy will almost always be dangerously fuzzy.  And for that reason, we may very well want to have a policy of erring on the side of free speech...  But I don't think this issue is as cut and dried as Glenn suggests.


Before I leave you, I'd like to grapple with one more of Glenn's questions that wasn't directly related to the Chick-Fil-A discussion.  Here's it is:

for those who like to say “money is not speech,” I have a question just for you.

Consider the following law enacted by Congress:  Any citizen who spends money to promote liberal ideas — whether on advertisements, donations to liberal candidates, or in any other way — shall be guilty of a Class A felony and sentenced to 5 years in prison. Citizens shall be free to espouse liberal ideas, but not to spend money to promote them. Citizens are still permitted to spend money to promote conservative ideas.

Would such a law be Constitutional, and if not, what provision of the Constitution would it violate? For those who say “money is not speech,” what possible argument do you have to say that such a law would be unconstitutional?

I'm not going to argue the constitutional/unconstitutional question.  I think the country is long overdue for a constitutional convention because the one we have is so anachronistic in so many ways.  Instead, I'll argue the principle.

My basic understanding of the First Amendment is that it exists so that we may benefit from an unfettered commerce in ideas. But today it is more clear than ever that unprecedented concentrations of wealth and profligate spending by a few is actually obstructing the unfettered commerce in ideas.  The pipes are jammed with propaganda, and the lonely voices of truthful dissent are increasingly crowded out.  

And it isn't just about "abridging the freedom of speech"; the "freedom of the press" has also been corrupted.  When six or seven corporations filter virtually all of the information the citizenry accesses to make decisions regarding how they should govern themselves, and when each of those corporations have strikingly similar interests, it should be obvious to all but the most committed ideologues that the system is broken.  

The fact is that we are lorded over by dual governments.  On one side, we have the government of the United States of America and the governments of its subsidiaries, the states and localities.  Simultaneously, we are ruled by corporations.  Under this rubric, I'd agree that the "traditional" government hasn't oppressively limited the marketplace of ideas (but have that discussion with organic farmers or parents that want to know if their foods are derived from GMOs).  But I'd also make the argument that the government's absence - in terms of its deregulation of the broadcast media and elimination of ownership limits - has ceded control of the marketplace of ideas to the government of corporations.

Finally, I'd point out that the entities that truly enjoy "freedom of speech" and "freedom of the press" are for all intents and purposes, identical.  In fact, in at least one case - Rupert Murdoch - the previous sentence can be construed literally; he's even built his own 24/7 conservative advertising channel (FNC).  

The First Amendment is broken, and money broke it.

Does anyone really believe that Bill O'Reilly's observations and analysis should carry more weight than Glenn Greenwald's?  

Yet here we are.

I rest my case.

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