Free Speech Victory: Supreme Court Sides With Conservative Filmmakers In Declaring Certain Campaign Spending Limits Unconstitutional

The New York times reports that "a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections. The ruling was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said allowing corporate money to flood the political marketplace will corrupt democracy... Senator Mitch McConnell of Kentucky, the Republican leader and a longtime opponent of that law, praised the Court’s decision as 'an important step in the direction of restoring the First Amendment rights of these groups by ruling that the Constitution protects their right to express themselves about political candidates and issues up until Election Day.'... The case had unlikely origins. It involved a documentary called 'Hillary: The Movie,'" which must be accurate as the New York Times describes it as "a 90-minute stew of caustic political commentary and advocacy journalism. It was produced by Citizens United, a conservative nonprofit corporation, and was released during the Democratic presidential primaries in 2008. Citizens United lost a suit that year against the Federal Election Commission, and scuttled plans to show the film on a cable video-on-demand service and to broadcast television advertisements for it. But the film was shown in theaters in six cities, and it remains available on DVD and the Internet."

The majority opinion in Citizens United v. Federal Election Commission, written by Justice Anthony Kennedy, said that "[t]he Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether... The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day... We must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker... We decline to adopt an interpretation that requires intricate case-by-case determinations to verify whether political speech is banned, especially if we are convinced that, in the end, this corporation has a constitutional right to speak on this subject... The ongoing chill upon speech that is beyond all doubt protected makes it necessary in this case to invoke the earlier precedents that a statute which chills speech can and must be invalidated where its facial invalidity has been demonstrated... 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... Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people... For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence."

Kennedy made clear that "[i]f the First Amendment has any force,it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

The full majority opinion can be read here http://www.law.cornell.edu/supct/html/08-205.ZO.html.


Chief Justice John Roberts wrote in his concurrence that the government was asking the Supreme Court 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 government in fact admitted this was what they were arguing in oral arguments, but simply asked the Supreme Court to realize the Congress would not actually do those things. See http://www.law.cornell.edu/supct/html/08-205.ZC.html

Justice Antonin Scalia simply eviscerates the dissenting opinion's attempt to use originalist arguments to limit the freedom of speech of corporate entities. As Scalia points out, "the dissent purports to show that today’s decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment." Scalia's opinion is actually the most important opinion written by any of the Supreme Court's Justices, even though it is not binding on lower courts and will not serve as Supreme Court precedent, as it focuses on the "original understanding" of the First Amendment's protection of freedom of speech. It uses an appropriate originalist understanding to conclude that "[w]e should celebrate rather than condemn the addition of this speech to the public debate."

Scalia also destroys the dissent's notion that freedom of speech only applies to "individual Americans." Scalia writes that "[t]he 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.'" To read the full opinion visit http://www.law.cornell.edu/supct/html/08-205.ZC1.html.

The opinion by Justice Clarence Thomas argues that the majority opinion's "constitutional anaylsis does not go far enough" in providing the "robust protection under the First Amendment" that "political speech" is "entitled to." The majority made clear that "the Government may regulate corporate political speech through disclaimer and disclosure requirements," but that it could not ban the speech itself. In my view, this seems reasonable as it allows the government to demand transparency in political speech in terms of the allowing the public to have the ability to identify the speaker, the source of the political speech. Justice Thomas, however, argues that "disclosure, disclaimer, and reporting requirements," as found in this statute, "are also unconstitutional." To read this opinion visit http://www.law.cornell.edu/supct/html/08-205.ZX1.html. Tweet