28 January 2010


To further the discussion from the previous post about the Citizens United case--Greenwald links to this post by Lawrence Lessig at the Huffington Post. What struck me as relevant to my contention that corporations can "bully" you into curtailing your speech (implicitly or explicitly) was this:

Yet in 1991, in an opinion by Chief Justice Robert's former boss, Chief Justice Rehnquist, in the case of Rust v. Sullivan, the Court found no First Amendment problem at all with the government's restriction on doctors' speech. Indeed, it wasn't even a difficult case according to the Court ("no question but that the statutory prohibition contained in § 1008 is constitutional.")

Why? How? Well the doctors at issue worked in family planning clinics that had received at least some of their funds from the government. And in exchange for that benefit, the government was free to gag the doctors however it wished. The doctors were free of course to work in a family planning clinic not funded at all by the government (for of course, there are plenty of those) (that's a joke). But so long as the doctors take this benefit from the government, they've got to live by the rules of the government, at least so long as those rules serve some legitimate state end.

So, the government, by being an "owner" of a free clinic CAN silence an employee's speech and can then use that speech (if antagonist to the government's position) as a reason for exclusion.

So, owners become rule makers who become the arbiters of what speech is free or not? This strikes me as inconsistent with the so called "free-ness" of one's First Amendment rights.

But this is a "business" rule then isn't it? You can speak, but you may get fired. Doesn't that curtail my speech? And who determines the "legitimate state end" as noted by Lessig above? (More and more it seems this is the beloved Leader's role.)

Can anyone help with my understanding of this? Because to be honest, when it comes to this freedom it seems you don't really have it unless you, as Janis Joplin made plain, got nothin' left to lose.

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