Lobbying, Free Speech and The First Amendment by Nicholas Provenzo -- Capitalism Magazine

Lobbying, Free Speech and The First Amendment

Charles Krauthammer makes a trenchant argument in defense of a perennial whipping boy:

Everyone knows the First Amendment protects freedom of religion, speech, press and assembly. How many remember that, in addition, the First Amendment protects a fifth freedom -- to lobby?

Of course it doesn't use the word lobby. It calls it the right "to petition the Government for a redress of grievances." Lobbyists are people hired to do that for you, so that you can actually stay home with the kids and remain gainfully employed rather than spend your life in the corridors of Washington.

To hear the candidates in this presidential campaign, you'd think lobbying is just one notch below waterboarding, a black art practiced by the great malefactors of wealth to keep the middle class in a vise and loose upon the nation every manner of scourge: oil dependency, greenhouse gases, unpayable mortgages and those tiny entrees you get at French restaurants.

Some will argue that not all lobbyists are good, to which Krauthammer offers the following:

There is a defense of even bad lobbying. It goes like this: You wouldn't need to be seeking advantage if the federal government had not appropriated for itself in the 20th century all kinds of powers, regulations, intrusions and manipulations (often through the tax code) that had never been presumed in the 19th century and certainly were never imagined by the Founders. What appears to be rent-seeking is thus redress of a larger grievance -- insufferable government meddling in what had traditionally been considered an area of free enterprise.

I agree, but I think one needs to take the argument a step further. No one has a right to regulate or vet the speech of others merely because they disagree with it. As much as the rational may detest the words and ideas of the irrational, the protection of the rights of the rational demand that all non-fraudulent and non-defamatory speech be protected under the law—which includes the right to lobby one's government. Those who seek to shackle lobbyists and regulate political campaigners attack a fundamental freedom: the right to persuade others of the merits of one's views, yet that is precisely what we are seeing more and more of today.

Some claim that since much of the regulation of speech is linked to money, it makes the system fairer for the "little guy." I argue the opposite; these regulations punish the wealthy because of their wealth, denying them the opportunity to speak publicly when their interests demand it and today they are the little guy. I am reminded of the Nike v. Katsky case, where the so-called commercial speech doctrine was used to prevent Nike from publicly defending itself against the criticism of anti-globalization activists. Here Nike wasn't even attempting to lobby the government; it merely bought advertising defending its business model and yet the firm found its right to speak restrained. The standard now is such that if you speak out of an economic motive, stand by to have your rights assaulted.

I will freely admit: the outcome of the Nike case was a deep professional disappointment for me, especially in the face of all the tremendous work that this organization did in defense of free speech (work that I must point out went largely unremunerated). Nevertheless, if we don't take concrete steps to safeguard our right to free speech, freedom in America will die. Most people think that the threat to free speech exists only for social outliers, such as flag burners and the like. I've witnessed the flag burned ten feet in front of me to no negative effect for the flag-burner. In contrast, I have watched as businessmen and their lobbyists have had their freedom of speech whittled away--a fact that makes me wonder just who the real social outliers are.

Nicholas Provenzo is founder and Chairman of the Center for the Advancement of Capitalism.

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