Thursday, June 15, 2023

Citizens United and Discrimination Against Certain Classes of Speakers

Notice that under the law struck down in Citizens United, different classes of speakers are treated differently with respect to the right to engage in political speech shortly before elections:

1. Bill Gates could spend billions to produce an anti-Trump film--Bad Orange Man--and make it available on demand for free

2. The New York Times could use corporate funds to produce an anti-Trump film--Mean Tweet Man--and make it available on its corporate web site for free

3. But if Hobby Lobby wanted to use its corporate funds to subsidize an anti-Biden film--Let's Go Brandon--and make it available on demand, it commits a felony

This kind of discrimination against different classes of speakers (individuals, media corporations, and non-media corporations) is difficult to justify under the Free Speech Clause. It is particularly difficult to defend two classes of corporations--media corporations (including for-profit media corporations that are often owned by non-media conglomerate corporations or by billionaires like Jeff Bezos) and "non-media" corporations which wish to fund speech that a media corporation would be free to do.

If we are going to ban corporate political speech during election seasons, let's not discriminate between media corporations and non-media corporations. Let's ban them all, or ban none.

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