Over the past five years, during my time as a Daily columnist, epithets like “elitist” and “communist” have been common responses directed toward me in the days following my columns.

My last column (Nothing is free, not even speech, 10/05/2009), as expected, brought a very different type of bitter, personal and vindictive response. People just can’t stand anyone messing with (their understanding of) the First Amendment.

The vast majority of those who were outraged by my claim — that the First Amendment isn’t an absolute right, but rather an abstract proxy related to a larger ideal of free thought — felt that I was taking an elitist approach. Free speech must be literal, limitless and absolute, they argued, because without that the little people get crushed. The government and those with the power would use arguments of abstractness to deny true freedom of speech, they said.

I understand why that argument seems persuasive, but I maintain that it’s simply not true. No one has benefited as much from the limitless definition of free speech as big corporations and those with power. As long as free speech remains an unqualified absolute, the scenario is one where those who yell the loudest win and the voices of the little people get drowned out.

A timely example of what I mean sits before the United States Supreme Court now — Citizens United v. Federal Election Commission. The case — which documents an anti-Hillary Clinton documentary that the FEC argued was subject to campaign finance regulations because it was essentially a political ad — was originally heard by the Court last term. The Supreme Court ordered the case be reargued this term with special focus on the constitutional question of how much regulation government can maintain over political speech of corporations.

The Supreme Court has precedents dictating that corporate money can and should be regulated, but it may be ready to reverse those precedents and open the floodgates of corporate money and influence in elections. Why? Nothing other than free speech gone wild.

Let’s go back to an accident that occurred in 1886. The Supreme Court heard the case of Santa Clara County v. Southern Pacific Railroad Company. That case was about taxation of railroad property, but no one remembers that today. Before oral arguments, Chief Justice Morrison R. Waite made an offhand side remark that came to change everything:

“The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.”

That seems simple enough — the Court was saying that corporations have the same protection under the Constitution that people do. But that was not the holding of the case. Nowhere in its written opinion (which is the only binding precedent that emerges from the Court) was anything mentioned about corporate personhood. The Court was not deciding the issue but rather was setting it aside.

But as the case was reported by the court reporter, himself a former president of a railroad company, that offhand remark by Waite came to define an entire branch of new protections under the law. The awkward proposition of corporate personhood has multiple important consequences, but its impact on free speech is perhaps most significant.

Because of that doctrine, the Supreme Court must regard corporations as people, and it stands ready today to declare government regulation of corporate spending in elections to be an improper violation of free speech. How far the court will go in its declaration remains to be seen, and one hopes that the most catastrophic outcome may yet be avoided. Regardless, there is no denying that we stand at this precipice today solely because we remain obsessed with the literal letter of the First Amendment at the expense of its true spirit.

If we were to take heed of the larger ideal of a free marketplace of ideas — where everyone’s voice, no matter how small, has the opportunity to be heard — we would cast aside ridiculous, absolutist derivations of the First Amendment that treat money as speech and regard any regulation of it as an infringement. Because we have embraced this extreme view, those with the most money and power yell the loudest and drown out those little people my critics were so worried about.

The Court seems prepared today to remove even the few tiny restrictions that gave the little people a small voice. Is that really a more comforting notion than simply accepting that the First Amendment, like most parts of the Constitution, is an abstract construct?

Imran Syed can be reached at galad@umich.edu.

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