Cato’s Jim Harper responds to my challenge that he identify any authority for the claim he makes — that content neutral subsidies of political speech violate the first amendment — by refusing to be bound by “modern Supreme Court precedents.” Instead, he insists on precedents from the “1790s, when the Bill of Rights was adopted.”
But notice, his post is still devoid of any authority for his claim at all — beyond his argument (mistaken though it is) that a rebate of one’s taxes is a “subsidy” (embrace your inner Tea Party, Jim: How is a rebate of MY taxes a “subsidy” of anything?), and his assertion that a subsidy of speech violates the First Amendment’s command that Congress not “abridge the freedom of speech.” A subsidy, Harper concedes, doesn’t “abridge speech.” But it does abridge (cue dramatic music) “the freedom of speech.”
If it does, then the Framers of our Constitution (remember, the 1790s, where Harper insists he “lives”) were repeated violators of the First Amendment.
I suggested in my initial post that the subsidy argument wouldn’t explain the Framers original practice because the whole purpose of the Post Office (the Defense Department (in size) of the original budgets) was to subsidize speech. Harper dismisses this claim: “Come now. Political speech follows commerce and communications, of course.” But I’m not seeing how that is a response to the point at all. I assume Harper thinks commercial speech is speech, protected by the First Amendment. If so, how is “the freedom of [commercial] speech” not “abridged” by subsidy, while “the freedom of [political] speech” is?
I asked perhaps the best historian on the Framers actual free speech practice, Paul Starr, to review Harper’s claim. Here’s what he sent me:
In arguing that subsidized speech violates the original understanding of the First Amendment in the 1790s, Jim Harper hasn’t studied the actual practice of government in the early Republic. The federal government subsidized political speech in two primary ways—through general and special subsidies.
The general subsidies came through the Post Office. Newspapers were created by the emerging parties of the 1790s, the Federalists and (Jeffersonian) Republicans, and they benefited both from below-cost rates for sending copies to subscribers and from a right to exchange papers with one another. The latter subsidy allowed for the development of networks of party newspapers and was crucial, for example, for Jefferson’s party in the 1800 election campaign.
The special, or selective, subsidies, came through government printing contracts and government advertising. Cabinet officers as well as legislative majorities used printing contracts and the placement of government advertising to subsidize their own party papers. Because political power was diffused among the different branches and levels of government—federal, state, and local, each with its own means of subsidy—the United States avoided the danger of a centrally controlled press.
The subsidies of the partisan press were, in fact, subsidies for political campaigns. Newspapers in the early Republic were the main way in which parties communicated with their members and the public at large. It was on the basis of this subsidized politics that democratic debate developed in the United States. This was not a subject of constitutional controversy at that time. There is simply no basis to the idea that the Founders would have disapproved of subsidized speech. Many of them were instrumental in creating the subsidies. And if the politics of the new nation had not been subsidized, the public would have been the poorer for it.
tl;dr: “There is simply no basis to the idea that the Founders would have disapproved of subsidized speech.”
Or at least, if there is, Harper has yet to provide it.