One humorous piece of free speech history at the United States Supreme Court is Justice Potter Stewart’s single-paragraph concurrence (an opinion that agrees with the Court’s majority but for different reasons) in the case Jacobellis v. Ohio (1964). Agreeing that Louis Malle’s film The Lovers did not constitute “hard-core pornography,” Justice Stewart then said:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
One can appreciate Justice Stewart’s frankness about the difficulty of articulating standards that separate obscenity—which is not protected free speech—from films like The Lovers, but it is still ironic that he capped his concurrence with such a quip as “I know it when I see it.” If it were a standard, it would require filmmakers and movie theater owners to come to court, perhaps the Supreme Court, before screening a risqué film, in turn making the First Amendment’s protection of artistic expression meaningless.
In the decade after Jacobellis the Court came up with a workable obscenity standard that keeps the government from censoring just about everything one might call “art” except child pornography. Although creative expression (no matter how tasteless) enjoys robust protection, many forms of political speech remain regulated. Campaign finance law, in particular, is complex for federal and most state elections, requiring regular reporting and monitoring from government agencies and prohibiting certain activities. These laws and regulations are often vague, allowing investigations and punishments based on bureaucratic whim. What is vaguer is the basis for these laws: “corruption.”
“Corruption” is now as indefinable as obscenity or hard-core pornography was to Justice Stewart. To be sure, there are unequivocal crimes of corruption by public officials and candidates. Bribery is the easiest to define, where a public servant accepts money from someone in exchange for taking an official action that benefits that person. From there, things get very muddled. Harvard professor Lawrence Lessig and other reformers have spent years arguing for an expanded definition of corruption and, in turn, expansive regulations to combat it. The definition is so expansive that it includes a corporation producing a movie about a candidate. No money ever reaches a candidate but, the argument goes, the candidate may be so ingratiated by a movie advocating for his or her election (or merely saying nice things about character, a voting record or certain policies) that the candidate might take official acts in favor of the movie’s producers or backers. If the movie is a critique of a candidate’s opponent—like, for example, Hillary: The Movie, a scathing documentary about Hillary Clinton produced by Citizens United—it’s the same result.
Hillary Clinton doubled down last week on overturning the Citizens United case that allowed Citizens United to broadcast its movie about her. This is welcome to many progressives, but it is occurring at the same time that Clinton is being hit with allegations of corruption that meet a definition far less vague and encompassing than the one touted by certain reformers. On Friday, Ken Vogel laid out one instance in an extensive story for Politico that reveals the Clinton Foundation—run by former President Bill Clinton, Chelsea Clinton, and previously Hillary Clinton—received very large contributions from a Moroccan mining corporation with questionable activities in Western Sahara. As Secretary of State, Hillary Clinton gave favorable treatment to Morocco—and, by extension—this mining company while paying little attention to Western Sahara.
Many reformers are silent on these revelations. Notable exceptions include, partially to his credit, Professor Lessig. Other progressives who don’t often speak about campaign finance argue that there is no there-there. Indeed, even in Vogel’s story there is no evidence close to building a real case for bribery. “Corruption” is left to the eye of the beholder. Though Lessig rebukes progressives who defend Clinton’s activities with legal technicalities, he also rebukes Clinton’s opponents for simply using the word “corruption” and not supporting even more campaign finance regulation.
To the contrary, it is quite plausible to use the word corruption without calling for someone to be put in jail, or fined, or even investigated under current or new laws. Elections are their own anti-corruption measure, and though it may irk idealists, the fact that corrupt politicians get elected or re-elected does not mean democracy is broken. The first and last solution in most cases should be convincing the electorate to “throw the bum out.” But given that one of Lessig’s solutions is to return to a pre-Citizens United era where the very government that reformers are trying to cleanse of corruption will have the power to ban movies (and possibly other media) that are often the very sources that reveal corruption, the solution is more legally corrupt than even Hillary Clinton’s questionable influences.
Outside of bribery and crimes that can be objectively defined, corruption should, indeed, be left to the eyes of the beholders: American voters. Today, in part thanks to Citizens United, there are more ways for voters to gather and receive information about law, policy and politicians than ever before. This includes information on what some or many may consider unsavory dealings, whether from Democratic candidates like Hillary Clinton or Republican candidates like Jeb Bush. Voters may decide, with all of this information, to support candidates with the best records against corruption. They may nevertheless support a corrupt candidate, warts and all. This is all the more reason for the political process to be open to as much speech from as many sources as possible and as many citizens who dare take on the label “politician.” Vague campaign laws based on even vaguer principles accomplish just the opposite.