Just over two years ago on the topic of money presumed to be speech, I offered this perspective:
"Money is a medium of financial and economic transaction, not speech in the accepted definition. "Speech" implies an individualist aspect whereby a person's unique consciousness is able to assemble specific words to convey an original thought or opinion."
I have not budged from that since, and argue even more strenuously now that if you are going to claim money as "speech" it must be individualized and owned not interjected as an abstract agent devoid of human responsibility. This is germane now as we read in a recent WSJ editorial:
The editorial's complaint hearkened back to a 2016 case decision (by a lower court) that found on behalf of the Koch brothers' dark money outfit, Americans for Prosperity. In that decision the federal judge Manuel Real imposed a permanent injunction against the California AG's demand that nonprofits hand over the unredacted names of their donors. In other words, if you are going to go the route of dark money, your money is divorced from any "free speech" privileges.
But as we read in the editorial:
"A Ninth Circuit panel swept past the trial evidence to vacate the injunction and reverse Judge Real. The Judge (Real) had noted that the attorney General 'struggled to find a single witness who could corroborate the necessity of [donor names] in conjunction with their office's investigations.. The Ninth Circuit brushed this aside on grounds that the AG had a 'strong interest' in donor names to investigate fraud."
The editorial seems not to appreciate the enormous potential for fraud, say via hiding criminal identities in giving money donations for political agendas. It is as if that AG concern doesn't count. The WSJ then whined how the Ninth Circuit "waived aside security lapses and dismissed the 'undeniably' real threats against foundation supporters."
Again, claiming special privilege for these donors on the basis of their money donations. But that does not compute, and if free speech is advocated on the basis of equal justice under the law it's a no go. To be sure, I've no objection to political campaign speech. Let the politicos and their super PACs take over air time on the tube and make their attacks to their hearts' content. Indeed, they can say whatever the hell they want, within limits. But it is foolishness to claim this is the same as personal free speech.
The editorial would have done better to consider the case along side how Prof. Ward Churchill's free speech rights were seriously violated some 17 years ago. This transpired when then University of Colorado professor Churchill wrote an essay "On Roosting Chickens" about the 9/11 attacks in an obscure journal. Some collegian with too much time on his hands found the essay then circulated it widely on the web, and it ultimately ended up in the hands of U of C honchos who declared Churchill unpatriotic and also, unfit to teach.
A special university "panel" was convened which rummaged through all of Churchill's existing drafts, academic papers and communications - which they did to no other prof. They then pronounced their "verdict": finding hum guilty of "plagiarism". In the wake, e
very little anti-free speech dunce in Colorado went batshit crazy calling for Churchill's head, with the university - and The Denver Post - complying in full.
The Post hung Ward Churchill out to dry in a number of editorials and op-ed columns, The guy was convicted and hung, drawn and quartered before he could ask 'why'. The whole episode showed the "free speech" meme for the hypocritical bollocks it is because, while someone could depict Muslims as "ragheads" in cartoons, he couldn't dare call into the question the U.S. role in inciting blowback to trigger 9/11 - as Churchill did.
The UC vendetta - via its specific ID of Churchill as the essay author - led them to a base violation of his free speech rights and also his equal protections under the law. In effect, NO other UC professors had their bodies of published work scrutinized, only Churchill. (Even as many wrote in support of him.) This singled him out and the questionable methods caused him to be fired. (Churchill pursued an appeal case and "won" several years later, but again in backhanded fashion the jury awarded him $1.)
So the question arises: WHY should the Americans for Prosperity donors be afforded any more protection than Churchill? Churchill - true - willingly attached his name to his controversial essay. But in a kangaroo court of public opinion it didn't matter and he ended up losing his livelihood while being selectively smeared. If an individual can be subject to such risk there is no justification - barring major changes in existing law - political donors should not also face risk for their dark money contributions. You don't get a free ride, e.g. anonymity, just became you have tons of money to donate.
The WSJ editorialists then bitch at the end:
"The polarization of American politics is raising the risks of disclosure for donors, though the judicial left won't admit it."
Yeah, well the civic Left will. But until that risk (for retribution) is also reduced for individuals who express their unpopular opinions, the monied donors do not get a free ride - e.g. to hide. At its core that to me is what the 9th Circuit decision is really about. It shows the serious need to extinguish dark money speech as against the very basis of free speech, for which human conception and individual creation has been assured since the era of the Founders.