Kagan's Dissent: "All the Law Does is Fund More Speech"


The Supreme Court ruled 5-4 that Arizona's Clean Election bill was unconstitutional because of the limitations it supposedly placed on speech. Fellow PolicyMic writer Jason Orr helped fill me in on the details of the courts' decision, and he convinced me that Arizona's law is perverse in a variety of ways. However, I'm still unsure about whether the main justification for the court's ruling is correct. Instead, I'm very much in agreement with Judge Elana Kagan's dissent, which she felt so strongly about that she read excerpts from the bench (a rare happening). The part of her opinion that most encapsulates what I want to argue here is this: “What the (Arizona) law does — all the law does — is fund more speech.”

The Arizona law works by giving additional money to candidates who accept public financing and find themselves facing opponents who are spending more than that. The essential point is that the law works by a triggering mechanism. If I'm publicly financed candidate X and you're publicly financed candidate Y, and you start spending a lot of money, then your actions trigger more state money to be shoveled in my direction.

The Supreme Court said this hurts the speech of candidate Y and so it is unconstitutional. Specifically, she won't want to spend money over the triggering level, because doing so gives more money to me. Also, donors won't want to give money to Y, because the money can't be spent without helping me. Thus, speech of Y and her donors is limited.

All this is true, but how is this a restriction of free speech we should be worried about? Free speech guarantees people the right to say what they want and to be heard, it does not guarantee them the right to be believed or to be persuasive. So, as I see it, the law does nothing to interfere with the ability for people to speak. After a certain point, the speech of Y will be met with more speech for X, but that does not limit Y's ability to reach people with her speech. More dollars will still result in her message's reaching more people; it's just that people hearing her message will also be hearing the other side of things.

So Y's speech is never limited in amount, it is only confronted with counter arguments. If Y doesn't want to speak (spend money) because she believes that people hearing the other side of things will disregard her position, then tough luck. Y was never entitled to have her speech be taken for gospel — just heard. It's as if the court thinks that my speech is unfairly limited unless I'm the only person who gets to talk.

Here's another more concrete way of putting the point: If the government initiates a public health campaign about the risks of eating fast food, then the effectiveness of advertisements by fast food restaurants is thereby decreased. However, no one thinks that public health campaigns offend against free speech restrictions. Such campaigns may be paternalistic and wasteful, but I don't think they restrict the speech of anyone. Companies in my imagined scenario are free to speak just as much as before, it’s just that each thing they say is less effective at persuading people. In my mind, that's fine and has always been fine: A right to speech is not a right to persuade people, only a right to try and persuade them.

Photo Credit: Wikimedia Commons