mittees, may raise unlimited sums
of money from corporations, trade
unions, and individuals, then spend
unlimited sums to promote their political causes.k They have no
spending limits. With such resources and
such a policy, what stops one partisan
from buying all the ad space in swing
districts a few weeks prior to an election? The role of government is not
to decide political truths but rather
to make room for enough sources of
truth to enable a just market to decide. Under Citizens United, the alternative is a market with but few ideas.
The appearance of choice is false,
having been predetermined by those
who speak loudly enough to set the
list of choices.
Consider the absurdity of a law that
forbids dissemination of the phrase
“Tiananmen Square Uprising.” A just
society requires the law be broadly
posted so that citizens, aware of the
law, take care not to break it. Yet dissemination of the law is a violation of
the law, a contradiction. Self-contradictory laws are unjust. And lest those
in the West point smug fingers at
those in the East, multiple instances
of banning Nazi slogans in Germany
or hateful ideas on American college
campuses exhibit the same contradictory character under the guise of
political correctness. We all have this
problem. A just and better society requires just and better laws, those that
censor harms rather than content,
those that balance consequences of
over and under reach, and those that
make room for multiple ideas, even
ones we do not like.
Rules whose enforcement in the
extreme yield their automatic repeal
cannot logically support any goal offered to justify their application. A
contradiction ensues. A logic is corrupt
whose extreme application leads to its
own negation. The deontological view
that holds pure principle to be the
standard regardless of consequence
cannot be correct. Having recognized
the problem, the only remaining question is where to draw the boundary on
consequence, not how to deny that the
Not only does the line exist, speech
crosses that line when it suppresses
“vilify and amplify.” In the limit, one
voice dominates another, outspends
another, and monopolizes an idea
market. Then, as with antitrust, strict
non-intervention is an abdication of a
governing duty to ensure a fair fight in
the market of ideas.
One thing my father taught me is
that blind adherence to the law, without understanding the due process
of law, is its own form of tyranny. We
have mechanisms to change bad law.
From 1928, when Hilbert posed his
problem of identifying consistent systems of absolute truths, it took eight
years, until 1936, for mathematicians
and philosophers to solve it and recognize its implications. We may thank
Church and Turing for correcting our
misconceptions of truths as absolute.
It has been nine years since Citizens
United. Now aware of the Church-Turing thesis, legislators and Supreme
Court justices ought not take longer
to correct their misconceptions of
rights as absolute.
l Virginia v. Black, 538 U.S. 343, 359 (2003).
m R.A. V. v. City of St. Paul, 505 U.S. 377, 3399-406
n Ohralik v. Ohio State Bar Association, 436 U.S.
447, 456 (1978).
1. Academic Outreach (AO) program of the Canadian
Security Intelligence Service (CSIS). Who Said
What: Security Challenges of Modern Disinformation.
2. Fish, S. What is the First Amendment for? New York
Times (Feb. 10, 2010); https://nyti.ms/2WREPGy
3. Graham-Cumming, J. How to beat a Bayesian spam
filter. 2004; https://bit.ly/2x7acgZ.
4. Loder, T., Van Alstyne, M., and Wash, R. An economic
response to unsolicited communication. Advances in
Economic Analysis & Policy 6, 1 (Jan. 2006).
5. Oreskes, N. and Conway, E.M. Merchants of doubt:
How a handful of scientists obscured the truth on
issues from tobacco smoke to global warming.
Bloomsbury Publishing USA, 2001.
6. Roberts, S. William Van Alstyne Dies, 84; Often-cited
Constitutional scholar. New York Times (Feb. 4, 2019);
7. Tucker, J. et al. Social media, political polarization,
and political disinformation: A review of the scientific
literature, 2018; https://bit.ly/2ZCeh WZ
Marshall W. Van Alstyne ( firstname.lastname@example.org) is Chair of the
Information Systems Department and Questrom Chair
Professor at Boston University, Boston, MA, USA.
The author thanks Communications’ Legally Speaking
columnist Pamela Samuelson the Viewpoints co-chairs
for their review comments provided during development
of this column.
Copyright held by author.
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