June 7, 2012  ·  Lessig

The Great Bob Kohn — Kohn on Music Licensing, eMusic, and now RoyaltyShare — felt it important to launch a twitter-snit against me, after I tweeted that I was going to deliver the commencement address at my high school (33 years after missing my own graduation). Here is the exchange: 

bobkohn
Great, Larry. Let them know why you hate the 1st Amendment: “@lessig: Friday I get to go back and give the commencement address.”
6/6/12 8:51 PM

lessig
@bobkohn you first.
6/6/12 9:56 PM

bobkohn
You’re way ahead of me Larry. Jefferson would be appalled at what you are doing. Why have you sold out? “@lessig: @bobkohn you first.”
6/6/12 10:37 PM

lessig
@bobkohn bob, what are you talking about?
6/6/12 10:49 PM

bobkohn
Your support of government censorship of political speech. “@lessig: @bobkohn bob, what are you talking about?”
6/6/12 10:56 PM

bobkohn
Rootstrikers @lessig : “Decl. of Indep. was speaking of natural persons only.” So, The NY Times, a corporation, has no 1st Amendment Rights?
6/7/12 2:49 AM

Before I offer my own reply to this, here’s what @jsalsman tweeted: 

jsalsman
@bobkohn Jefferson would have never allowed money to shout out political opposition. You shouldn’t either: http://t.co/lKZOAYBl cc @lessig
6/7/12 2:38 AM

jsalsman
@bobkohn for proof from Thomas Jefferson’s writing, see “unless the mass retains sufficient…for the trust” at http://t.co/oCre4mZF @lessig
6/7/12 2:46 AM

Which is great enough, but doesn’t respond to Kohn’s charge about me “selling out.”

1. First, can we reserve the charge “selling out” to a context in which it is meaningful? To whom would I have been “selling out,” Bob? All the economic interests in the world are on the “corporations = people” and “money = speech” side. If you’re attacking me for not taking that side, you’re not attacking me for “selling out.”
2. Whether or not “persons” refers to “natural persons only,” in my view, entities get First Amendment rights. That’s because I believe — with Scalia — that the First Amendment states not a privilege given to “persons” but a limit on the scope of “Congress’s” power. That means citizens, persons, foreigners, and dolphins all have First Amendment protection. Of course, to its great embarrassment, after Citizens United, the Court refused to reconsider its position on whether legal immigrants have a right to speak politically. (Justice Stevens made this point recently. I don’t know where Scalia was on that case, but he didn’t dissent from denial.)
3. I have directly and explicitly argued — after some struggling with the matter for a while — that I am not in the “corporations≠persons,” and “money≠speech” camp. I made that argument at a League of Women Voters event in Concord last month. I was making it precisely at the time that Kohn launched his snit last night. Here’s a five minute response to a question about “money=speech”: audio.
4. Finally, and most importantly, even if I did believe that “corporations≠persons” and that therefore they didn’t get the benefit of First Amendment protection (again, which I don’t), can we leave the trash talk to cable TV, Bob? it is absurd to characterize that position as support for “government censorship of political speech.” Or it is as absurd as saying that people who support copyright support “government censorship of political speech.” I have enormous respect for the people who are trying to respond to the corruption of this democracy by pushing for constitutional change. Even if I disagree with the particulars of their amendment, it is red-baiting to say that they support government censorship. Let’s leave the red-baiting to those who get paid to utter such silliness.  

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