Since the Citizens United decision, I have been moaning, with the other Whig commentators, that money is not speech, but have just realized I'm wrong. I have been writing a book on the history of the idea of free speech, and now understand that virtually any object or act can be incorporated in symbolic speech. The singer Billy Joel once was arrested at a demonstration in Easthampton, picking an illegal striped bass from a haul seine net as an act of civil disobedience. Holding that fish communicated a message about the state law which had banned a traditional means of fishing in use for two centuries. In Belarus, a new form of demonstration consists of flash mobs which assemble to clap their hands. The hand-clapping tells the government, “We don’t like you and are out of your controlâ€. The Supreme Court acknowledged for the sake of argument that in a demonstration in which homeless people and advocates camped out on the Washington mall, sleeping might be a form of First Amendment-protected expression.
Once you start looking for symbolic speech, you find it everywhere. While some acts of violence are merely brutally pragmatic, a large number of others are intended to say something to the target. The hijackers who flew planes into the World Trade towers and the Pentagon were communicating a very violent message to the people of the United States. Eliot Rodger, the deranged young man who killed six people in Isla Vista, California two weeks ago, first wrote a 137-page manifesto about his hatred of women for rejecting him and of the men whom they preferred, then made a seven minute video explaining what he was about to do. The killings themselves were the period at the end of a sentence, a full stop in a horrendous speech act.
While natural objects such as fish, flowers and stones can be incorporated into symbolic speech, money itself is an imaginary thing, a human symbol. Therefore, money being used for the purpose intended--paid to a worker for labor, then used by that worker to buy things--has a communicative component in the first place. It stands for the value of labor, which then correlates to a value of goods or other labor. Money, like m ost signifiers, has since its creation constantly been co-opted into various other significances. The Yippies threw money into the pit of the New York Stock Exchange in a 1967 demonstration, to watch the brokers scramble for it. In 1994, a British rock band, KLF, burned a million pounds in cash on an island in Scotland. “A million is a symbol of our dream. It has power. It’s unforgettable. The figure of one million pounds will stay in people’s minds for a long time,†Bill Drummond of the band told an interviewer.
Two dueling tropes which turn up in Hollywood movies involve throwing money. In one, someone hurls cash at a crowd of ordinary people, who scramble for it, typically blocking police pursuing the thrower. The scene communicates how greedy and disorderly the mass of common people is. In the other trope, an intoxicated, enraged rich person produces a roll of one hundred dollar bills and throws them, a handful at a time, at someone less powerful, shouting something like, “You’re nobody! I could buy and sell you!†This scene communicates the courage and independence of the target, who stands calmly looking at the thrower and ignoring the bits of paper cascading to the floor. This individual rebuts the other’s symbolic speech instead of reacting to it.
My initial reaction to Citizens’ United had been to think that when the Koch Brothers spend money they are simply carrying out a pragmatic transaction to facilitate speech, similar to that of hiring a truck to carry pamphlets from the printer to the point of distribution. If you regard financing as having no communicative content, you are launched into a long analysis of the extent to which pragmatic, real world acts which affect or facilitate speech can be regulated. For example, if all the leaflets needed for an election were printed a thousand miles away, and one candidate was wealthy enough to hire an airplane to transport them while three others used trucks, would a law be appropriate that banned the wealthier one from giving out leaflets til the other candidates had received theirs? I now realize this is the wrong analogy, the wrong thought experiment, driven by a Whig refusal to understand money as speech.
Given the mad, wild, uncontrollable symbolic content of money, spending money to promote speech itself has communicative content. I remember finding a leaflet in my doctor’s waiting room some years back, with photographs of black families, explaining how dangerous and destructive government-sponsored health insurance would be to them. The nonprofit entity with a benign name listed on the leaflet turned out to be a Koch-financed entity. The Kochs spending money to produce a product I regard as hypocritical and despicable, trying to persuade people to reject a benefit they badly need, is highly symbolic speech, full of messages intentional and unintentional, about the Kochs’ belief they are a higher life form than the rest of us, and owe the audience no obligation of truth. In fact, every time the Kochs spend money on politics, they re-enact both the movie tropes I described above. To create the content, the Kochs are throwing money at a crowd of greedy operatives, the people who write, print and distribute leaflets advocating policies which many of the operatives know are contrary to their own interests. These hacks have existed in all times: in Weimar you could buy journalists who could barely put food on the table to write that prices aren’t rising, and today you can find people who don’t know whether they will be able to afford their child’s medication next month to write that the American medical system is not broken.
When the Kochs spend money to defeat a politician they do not like, they are throwing money at her like the arrogant character in the other movie trope, shouting “You are nobody! I could buy you and sell you!†And much of the time they are right. It is a huge flaw in the American political process that a bold enough lie, backed by millions of dollars, will turn an election, as the Swift-boating of John Kerry demonstrated. The Republican support Kerry received in his confirmation as Secretary of State indicates that nobody really believed the lies told then, except the voters.
If money is speech, have I just admitted it is absolutely First Amendment-protected? Not quite. I have just put us on the road to a better analogy or thought experiment.
We analyze speech not only in terms of content but for what the language philosopher J.L. Austin called its “performative†effect, and we prohibit certain speech precisely because it is also destructive action, or produces such action instantly. This is the reason why certain words uttered in print receive more protection than the same words uttered to an angry mob in front of someone’s house. “Kill the Jews†as the title of an essay posted on a Web site is within the limits of First Amendment protection, but shouted to a group of armed humans outside a synagogue full of terrified humans, it becomes a “true threat†of imminent harm and therefore a crime.
Cross-burning is an even more nuanced and interesting example, because it is purely symbolic speech. The intended target must share a common symbol-language with the perpetrator to be frightened. A visiting Martian with no such context might find a burning cross beautiful and interesting, might even assume it was a form of welcome rather than a direction to leave Earth immediately. The Supreme Court said in Virginia v. Black: “While cross burning does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful.â€
Through-out the history of the First Amendment, we have always regulated certain performative speech on two related grounds. First, time, place and manner restrictions apply to otherwise protected speech because of its effect in the real world. I deal with this at street level in New York criminal courts every week, representing protesters arrested for disorderly conduct. The state’s assertion is that you can protest inequality, the treatment of carriage horses, the war in Afghanistan, or stop and frisk in a wide variety of ways, but not by blocking the sidewalk. (Of course, in most of my cases, nobody was actually blocking the sidewalk, but that is a different matter and material for a different essay.) Second, one of the performative effects we look at is the deterrence of speech. Cross-burning is regulated as a form of symbolic speech that shuts people up. You don’t respond to it by planting a tree, or decorating a cross with photos of smiling people of different ethnicities, or by building a bonfire; your “riposte†is to shut up and leave town.
Once we acknowledge that money is speech, we can then analyze the performative effects it has in the real world. Spending large amounts of money allows political minorities, and even a minority of one or two, to create outsize effects in the political process, it undermines voter confidence, produces results in the greedy which look very much like bribery, and intimidates adversaries in a way which is essentially similar to a burning cross. After Citizens’ United, the Supreme Court’s conservative four plus swing vote (a coalition including two judges, Scalia and Thomas, who actually participate in Koch Brothers’ “Destroy the Democrats†events) appears to be saying that money is the only form of performative speech not subject to reasonable time, place and manner restrictions. But they can’t possibly really mean that, because such a message (expressed in the Supreme Court’s own performative speech) would fly in the face of the political and procedural equality established in our Declaration of Independence and the Bill of Rights.