The issue of whether money equals speech came to the forefront in the case Citizens United v. Federal Election Commission (2010) in which the Supreme Court ruled government could not restrict independent political expenditures.  The ruling applied to for-profit corporations, labor unions, non-profit corporations and other associations.

While many people believe Justice Anthony Kennedy’s majority opinion contained the phrase “money is speech,” this is not the case.  In fact, no Supreme Court justice has uttered those exact words.  The closest any member of the Court has come to this statement appears in the following exchange between the late Antonin Scalia and Piers Morgan on the July 18, 2012 edition of the latter’s CNN program.

SCALIA: You can’t separate speech from — from — from the money that — that facilitates the speech.

MORGAN: Can’t you?

SCALIA: It’s — it’s — it’s utterly impossible

There was a moment in last night’s debate in which I found myself agreeing with Justice Scalia (something that I must admit does not happen very often). During an exchange about Donald Trump’s promotion of the birther conspiracy and whether it was racist in nature, Hillary Clinton referred to law suits against Trump for housing discrimination.

But, remember, Donald started his career back in 1973 being sued by the Justice Department for racial discrimination because he would not rent apartments in one of his developments to African-Americans, and he made sure that the people who worked for him understood that was the policy. He actually was sued twice by the Justice Department

Trump responded as follows.

Now, as far as the lawsuit, yes, when I was very young, I went into my father’s company, had a real estate company in Brooklyn and Queens, and we, along with many, many other companies throughout the country — it was a federal lawsuit — were sued. We settled the suit with zero — with no admission of guilt. It was very easy to do.

His explanation bothered me for several reasons.  First, he brings his father into the discussion implying he was just being a dutiful employee.  Second, he uses the excuse everyone was doing it.  Third, it was a “federal lawsuit” as though only state and local discrimination cases are valid.  But it is the last two sentences which made me think about Justice Scalia and Citizens United.  Even if you buy Scalia’s argument money facilitates speech, it does not relieve you of exceptions to the first amendment’s guarantee of free speech.  You cannot pay the theater manager to give you the right to yell “fire.”  You cannot buy media time and commit libel.

Settling a discrimination case out of court may relieve you of certain legal responsibilities, e.g. producing documents, depositions, testifying in court and publicly admitting culpability.  It does not, however, imply innocence.  Just the opposite.  The settlement represents compensation for damages.  If there were no damages, why settle?  Isn’t that the argument Trump now makes for NOT settling law suits involving Trump University?

On that basis, the Scalia/Morgan exchange could be paraphrased as follows.

SCALIA: You can’t separate a non-verbal admission of culpability from — from — from the money that — that is used to settle a law suit.

MORGAN: Can’t you?

SCALIA: It’s — it’s — it’s utterly impossible.

I rest my case.

For what it’s worth.
Dr. ESP