Video Archives - Free Speech Lecture Delivered by Zephyr Teachout (2012)

Zephyr Teachout is a constitutional scholar and Professor of Law at Fordham University; she will be speaking at this year’s Arendt Center annual fall conference, “The Unmaking of Americans: Are There Still American Values Worth Fighting For?” The conference will be held on October 9-10 at Bard College. (You can learn more about the event here.) In this week’s Video Archive post, we feature a lecture Teachout delivered at Bard in 2012.

Tuesday, October 2nd, 2012: Constitutional Law, Super PACs, and Video Games in the "First Amendment Era."

Participant: Zephyr Teachout, Professor of Law at Fordham University

Zephyr Teachout visited Bard in October of 2012 to speak about the evolution of the idea of free speech in American jurisprudence. She orients her talk around the Citizens United decision and the dawn of “Super-PACs” and deregulated corporate contributions in politics. She offers a historically and philosophically rooted critique of the practice of lobbying and the connection between the legal concepts of money, power, and speech. Quite simply, she argues that for the first 100+ years of the United States, the Supreme Court recognized a Constitutional Ideal to keep democratic elections free from corruption. In the last 100 year, however, the Court’s interest has shifted from the Constitutional ideal of preventing corruption to the Constitutional right of free speech. The result is that the Court’s free speech jurisprudence has made it difficult, if not impossible, for the Court to uphold legislation that seeks to limit the corrupting influence of lobbyists and money. This is the source of Teachout’s opening provocation, that (at least in matters of campaign finance reform) “the First Amendment is a terrible thing.”

[caption id="attachment_13700" align="aligncenter" width="499"] Zephyr Teachout[/caption]

Teachout begins her talk with a story about the case Trist v. Child (1874), where an elderly Virginia man hired a lawyer to prosecute an unresolved claim for his services to the United States government before Congress. The lawyer won the case, but when he went to collect his legal fees from his client, the Virginian man refused to pay him. The dispute was then taken to court. Ultimately, the Supreme Court ruled that the Virginia man did not need to pay, for what his lawyer had done was considered lobbying—that is, taking money to petition Congress on another’s behalf—and lobbying was not considered a legitimate enterprise.

Teachout quotes the Court’s final decision:

If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interests, the moral sense of every right-minded man would instinctively denounce the employer and employed as steeped in corruption and the employment as infamous.

What Teachout emphasizes is that early cases around questions of campaign finance and the role of lobbying were decided according to the Constitutional ideal of protecting democratic governance from corruption. Until the late 19^th century, lobbying was considered amoral and corrupt. Many still think lobbying is unseemly, but lobbying has acquired the patina of respectability because of its association with the expanding doctrine of free speech. The question of free speech did not even come up in the Child case. Yet, in the 140 years since the Child case, free speech has emerged as a dominant principle in American court rulings around lobbying, campaigns, and elections, especially those cases concerned with campaign finance reform. The rise of free speech has as its corollary the diminishing concern to prevent corruption as a Constitutional issue.

“Turning money into reason is actually a very scary thing for a political society…the old folks would call it sophistry,” quips Teachout. This is the focus of her concluding concerns. Lobbying constitutes a real challenge to the liberal political vision, so much so that Teachout advocates a return to the court’s older anxiety about concentrated power through challenging the orthodoxy of the first amendment. By understanding the broader tradition that has shaped this amendment, we can better understand free speech as an idea. Going forward, Teachout is concerned that the questions we should be asking about money, power, and speech might in fact be stifled by the very idea of free speech itself. But that is never a reason not to try. In her mind, now is the time that something must be done—before it’s too late.

Summary by Dan Perlman

To watch Teachout’s full lecture at the Hannah Arendt Center, please see the video posted below. You can also read an essay written by Roger Berkowitz about her ideas regarding campaign finance and free speech here.

To learn more about this year’s annual fall conference, click here. To register, click here.