Citizens United Was Correct

Citizens United v. Federal Election Commission is a fairly complex case. There are multiple issues that were before the court, including two prior decisions regarding substantially the same issue. Admittedly, you have to be pretty wonky to devote the time to read the 183 page decision in its entirety but I would encourage you to at least skim through it. (Citizens United v. FEC)

There a lot of misconceptions out there about the case and the court’s ruling. I’m not going to spend the energy to address any of them, other than to say that most of the sound bites are partisan in nature and are based on either ignorance or a misunderstanding of the facts of the case. This case is not about money. It’s not about buying influence as it’s detractors claim, nor does it have any impact at all on the pervasiveness of money in politics. In short, it addresses the question of whether or not it’s constitutional for the Federal Government to restrict free speech based on the source of that speech (i.e., the identify of the speaker).

Below I’ve quoted some key points from the decision in an attempt to simplify its broad strokes. (I’ve re-formatted and/or removed some extraneous legal references in order to make it a little easier to read, but I have not changed any content or context.)

From the majority opinion:

When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b:

•The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests;
•the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban;
•and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech.

These prohibitions are classic examples of censorship.

While we’re at it, let’s dispense with this “corporations are people too” garbage. Of course a corporation is not a person and the decision makes no claim to the contrary (which opponents would know had they actually read it). A corporation is a piece of paper. It is an inanimate object, not a sentient being. It’s nothing more than a legal document used as to define the structure of an organization of people united for a common purpose. It can’t think, speak or take any kind of action. As such, any action taken in the name of a corporation is in fact, an action taken by a person or a group of people. If you restrict First Amendment rights for “corporations”, you are in effect, violating the First Amendment rights of one or more individuals.

For decades, our legal system has recognized that our right of free speech, as protected by the First Amendment, is not specific to the source:

From the majority opinion:

The Court has recognized that First Amendment protection extends to corporations.

•Bellotti, supra, at 778, n. 14 (citing Linmark Associates, Inc. v. Willingboro, 431 U. S. 85 (1977);
•Time, Inc. v. Firestone, 424 U. S. 448 (1976);
•Doran v. Salem Inn, Inc., 422 U. S. 922 (1975);
•Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975);
•Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975);
•Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974);
•New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam);
•Time, Inc. v. Hill, 385 U. S. 374 (1967);
•New York Times Co. v. Sullivan, 376 U. S. 254;
•Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684 (1959);
•Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952));
•Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180 (1997);
•Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996);
•Turner, 512 U. S. 622; Simon & Schuster, 502 U. S. 105;
•Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989);
•Florida Star v. B. J. F., 491 U. S. 524 (1989);
•Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767 (1986);
•Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978);
•Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976);
•Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974);
•Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6 (1970).

This protection has been extended by explicit holdings to the context of political speech. Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.”

“The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster” (quoting Bellotti, 435 U. S., at 783). The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.”

Justice Kennedy:

The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern. Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations—as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy. The Court properly rejects that theory, and I join its opinion in full. The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.

Majority opinion:

This case, however, is about independent expenditures, not soft money. When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy.

Justice Scalia:

The dissent says that when the Framers “constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.” That is no doubt true. All the provisions of the Bill of Rights set forth the rights of individual men and women—not, for example, of trees or polar bears. But the individual person’s right to speak includes the right to speak in association with other individual persons. Surely the dissent does not believe that speech by the Republican Party or the Democratic Party can be censored because it is not the speech of “an individual American.” It is the speech of many individual Americans, who have associated in a common cause, giving the leadership of the party the right to speak on their behalf. The association of individuals in a business corporation is no different—or at least it cannot be denied the right to speak on the simplistic ground that it is not “an individual American.”

But to return to, and summarize, my principal point, which is the conformity of today’s opinion with the original meaning of the First Amendment. The Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals—and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment. No one says otherwise. A documentary film critical of a potential Presidential candidate is core political speech, and its nature as such does not change simply because it was funded by a corporation. Nor does the character of that funding produce any reduction whatever in the “inherent worth of the speech” and “its capacity for informing the public,” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 777 (1978). Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.

Citizens United will likely be a highly controversial case for decades to come but it’s important that people understand what it’s really about. Its detractors would do well to recognize that many of the organizations that benefit the most are generally on the same side of the political aisle as they are (labor unions, for example). It makes no difference to “money in politics”. Short of repealing the First Amendment, people will always find a way to express their opinions, support their candidates of choice and work to bring attention to their cause. This has and always will, require money in some form. Citizens United doesn’t change that.

More importantly, the case is an affirmation of one of our most fundamental and cherished rights, without which our country could never survive.


Photo by DonkeyHotey

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