Citizens United: Notes and Questions

The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Does the first amendment protect speakers or “speech?"

Should it matter whether the speaker is a corporation or a natural (i.e. human) person?

Who is the speaker in the movie Hillary?

The corporation that paid to make the movie available to the public?

The director and producer of the film?

The writers who wrote the screenplay (the narration, etc.)?

What about listeners? Do willing members of the audience for speech have a right to receive speech?

For example, if government bans corporations from distributing films such as Hillary, doesn’t this restriction deprive natural persons, such as me and you, access to the film? And remember, since this movie was "on demand" on cable tv, the listener actually had to seek it out and press play to receive it.

As the Supreme Court once put it: "The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers."

Suppose the State of Mississippi forbids the possession of books written by Karl Marx. Of course, Marx is not around to sue to challenge this censorship law's constitutionality under the First Amendment. Do I have a right, as a willing audience for Marx's books [remember this is only a hypothetical], to challenge the law under the First Amendment?

Prof. Kathleen Sullivan says that one difference between the majority and the dissent is that the majority has a vision of free speech as liberty and the dissent has a vision of free speech as equality (the "antidistortion" rationale). As she puts it:

"The outcome of Citizens United is best explained as representing a triumph of the libertarian over the egalitarian vision of free speech."

In other words, the dissent is okay with government prohibiting freedom of speech by wealthy corporations, because this amounts to a redistribution of "speaking power" from powerful corporations to natural persons. 

Of course, media corporations were exempt from the restriction, and some might conclude that this allows certain powerful media corporations to select which political news and viewpoints are "fit to print" for natural persons to see or hear. Perhaps non-media corporations have a different view of what is fit for audiences to see? Perhaps audiences would like to decide for themselves?

And here is how Prof. Rick Hasen summarizes the debate:

Since 1976, when the Supreme Court decided the seminal case of Buckley v. Valeo, the Justices have been locked in what both sides see as a Manichean struggle over the constitutionality of campaign finance regulation. On one side are those Justices who view the world of politics as fraught with corruption and undue access for the wealthy; they worry that voter confidence gets shaken by each new campaign finance scandal. On the other side are those Justices who see any limitation on money in politics as overt government censorship that violates the First Amendment; they fear that incumbents will squelch criticism in a replay of the Alien and Sedition Acts. Justices fight this rarefied battle with jurisprudential jargon that parses levels of scrutiny, compelling interests and the appropriate tailoring of the law, but it is this fundamental difference in worldviews that really drives the Court’s debates. And as Court personnel shifts—or, less often, Justices change their minds—the Court’s doctrine swings like a pendulum, alternating between deference and skepticism toward the regulation of campaign finance.

 

And here is the money excerpt from Justice Kennedy's opinion:

Section 441b's prohibition on corporate independent expenditures is thus a ban on speech. As a "restriction on the amount of money a person or group can spend on political communication during a campaign," that statute "necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Buckley v. Valeo, 424 U. S. 1, 19 (1976) (per curiam). Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process.  If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restriction on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect.

     Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment " 'has its fullest and most urgent application' to speech uttered during a campaign for political office." 

     For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are "subject to strict scrutiny," which requires the Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, the quoted language provides a sufficient framework for protecting the relevant First Amendment interests in this case. We shall employ it here. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.  As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content....The First Amendment protects speech and speaker, and the ideas that flow from each.

 

And here is the key to Justice Stevens' dissent: 

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

If you agree with Justice Stevens, would you also support locking the doors of media for-profit corporations such as the New York Times, NBC, and Fox News? Is there any reason to treat some corporations better than others? What is that reason?