#Escape2010

In response to my “Twitter fight!” blog post from Wednesday, Harvard Law Professor Lawrence Lessig charges me (in a post entitled “#Escapethe1990s”) with living in the campaign finance debates of the 1990s. There’s a better knock on me: I live in the 1790s, when the Bill of Rights was adopted, like some kinda freak!

Lessig really wants me to rely on modern Supreme Court precedents to argue that public funding of electioneering is unconstitutional: “And I challenge Harper to offer one bit of actual authority to counter that statement beyond his ‘this is the way I wish the Constitution were interpreted’ mode of argument,” he says, in “I-really-mean-it” bold.

I’ve had similar challenges to my starry-eyed and—I’ll confess—ideologically driven view of the Constitution. (I’m biased in favor of liberty.) For about a year, supporters of NSA spying bandied Smith v. Maryland “Supreme Court law,” saying that a person has no Fourth Amendment interest in phone calling data—until Judge Leon undercut them. Needless to say, the Court got its rationale wrong in Smith. Applying Smith to NSA spying is wrong. To the extent precedents might allow public funding of electioneering, they are wrong, too.

Professor Lessig devotes a good deal of time to the compromise he and others have made with conservative opponents since the ’90s. Perhaps because I’m not a conservative, but a libertarian, I don’t feel as though I owe it to them to come their way. To Lessig’s credit, he is not doubling-down on a bad idea, as others are, by seeking a constitutional amendment to allow government regulation of political speech. (The bill at the link was introduced Tuesday.)

What is most interesting is his utter certainty that an intricate scheme to mask government subsidy for political speech is good enough to slide over the First Amendment’s bar on “abridging the freedom of speech.” I thought I did a pretty good job on the subsidy question the first time, but I’ll do it again: Under Lessig’s plan, if you give money to a politician, you pay less in taxes. If you don’t give money to a politician, you pay more in taxes. Government tax policy would funnel money to politicians for their campaigns. That’s subsidy.

Lessig is right that his proposal doesn’t “abridg[e]” “speech.” But the First Amendment bars something more: “abridging the freedom of speech.”

As used in the phrase, “speech” is a mass, or non-count, noun. Modifying “freedom” from its prepositional perch, it makes “freedom of speech” non-count as well. “The freedom of speech” is a mass of freedoms—”this mass of freedoms right here,” the Framers said by putting a definite article (“the”) ahead of it. This should incline us to look at freedom of speech as practiced at the time of the Framing. Political campaigns were not government subsidized. (Incidentally? Sure. But Lessig says, “The whole purpose of the Post Office, originally, was to subsidize political speech.” Come now. Political speech follows commerce and communications, of course.)

[Update: In a further oddly titled reponse, Professor Lessig retreats from saying that the whole purpose of the Post Office was to subsidize political speech—arguing instead it was to subsidize speech generally—and he enlists a felicitous history from a fellow liberal academic suggesting that the ideals expressed in the First Amendment are cancelled by actual practice at the time. (Next they’ll spring the Alien and Sedition Acts on me.) It’s why I said “incline us to look at freedom of speech as practiced at the time of the Framing” and not “cause us to adopt every practice and expand on deviations from the Framers’ ideals.” Professor Lessig’s more general argument is stronger, but it’s no basis from which to argue that tax subsidies for electioneering are constitutional. Having spent a lot of time answering my add-on point about the meaning of the article “the” in “the freedom of speech,” he has no answer to what I say about the adjective and noun in the paragraph just below.]

Freedom of speech isn’t simply freedom to speak, which would be fulfilled when the greatest number of words were uttered. Freedom of speech gathers together the rights to speak, to record, to write, to type, to think, to sell books, to buy books, to pay for others’ speech, to operate a press or blog, to edit, to copy, to leaflet, to not leaflet, to refrain from speaking, and more. The right to refrain from speaking includes a right against being required to pay for others’ speech.

Chances are not good that Professor Lessig and I will convince one another on these issues. The effort is to entertain and persuade others, and for me to draw his audience to my side. I encourage readers—even those Lessigites whose starting point is to be really angry at me—to make their own decisions about what the Constitution and our traditions mean.

Given access to sufficient data, which many people are working on, I’m confident that the Internet—meaning all of us—can oversee the government much better than we do and produce better results. This makes transprency a more important, and speech friendly, reform than government management of political speech.

A final point, of utmost importance! (Facetiousness, ICYMI.) Professor Lessig came to Cato advocating for public funding, and splashing the phrase across Professor Richard Epstein’s face, in 2010.