The Citizens United Decision: Speech is Speech Regardless of the Speaker

by on January 22, 2010 · 14 comments

Yesterday’s Supreme Court decision in Citizens United v. FEC essentially stands for the proposition that free speech is free speech regardless of the speaker. The 5-4 majority for the Court ruled that “We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.” (at 25)  Echoing its early decision in Bellotti, the Court noted that “Political speech is ‘indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.’” (at 33) “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas.” (at 35) “There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations.” (at 37)

Somehow this has proven controversial, even radical, to some.  But, as George Will correctly notes, “This was radical only because after nearly four decades of such ‘reform’ the First Amendment has come to seem radical. Which, indeed, it is. The Supreme Court on Thursday restored First Amendment protection to the core speech that it was designed to protect — political speech.”  Essentially, the decision gets Congress out of the game of picking who, or what platform, deserves full First Amendment protection when it comes to uttering political speech. And there’s nothing radical about that.

Indeed, as Justice Kennedy noted for the majority, there is nothing surprising about this reasoning once you realize that almost every other type legislative or regulatory speech restriction has been struck down as a violation of the First Amendment. “The law before us is an outright ban [on political speech], backed by criminal sanctions,” Kennedy noted (at 20).  “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” (at 33)  Think about this for a second: Criminal sanctions or jail time for political speech! How in the world did we get to the point in this nation where criminalizing political speech became acceptable to our legislators?  Ignoring the obvious answer—it’s all about protecting incumbents—what is really “radical” here is not that the Supreme Court setting us back on the right path, but that our legislative branch has veered so far off of it.

I also agree with Tim Lee and Eugene Volokh who note that corporate money has always been part of politics and it is silly to think the restrictions in play here would really do much to change things in Washington in terms of diminishing “corruption.” Frankly, if you want less corruption in government, you need to begin by shrinking the powers of government to a more sensible level.  Big government breeds corruption opportunities simply because the “return on investment” for dollars spent trying to influence politics depends on how much money politicians can control through spending and regulation.

And political advertising or “electioneering communications” in the days leading up to an election are about the last thing you should be worrying about if you really want to “clean up the system.”  You don’t strengthen democracy by stifling freedom of speech or issue advocacy. That’s the equivalent of burning the village in order to save it.

For technology policy, the most important part of the decision is probably the following passage:

Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers… Today, 30-second television ads may be the most effective way to convey a political message… Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues…The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech…[viii][viii]

As Seth Cooper correctly argues:

These passages… are clearly at odds with Red Lion Broadcasting v. FCC’s assertion sixty years ago that “differences in the characteristics of news media justify different in the First Amendment standards applied to them.”

Eugene Volokh makes much the same point. Perhaps we are finally seeing an end to America’s “First Amendment Twilight Zone” as I have called it [see this video presentation] and, with any luck, a consistent First Amendment for the Information Age.

  • mwendy

    This ruling could affect the FCC's NN rules. It's a new idea in this town – the 1st Amendment means what it says (or, it gets closer to that). The FCC's proposed non-discrimination rule should see similar strict scrutiny – it compels non-content-neutral, content on private networks; networks that are not regulated in a common carrier model. It's like saying the gallery owner must hang paintings not of his own – with no compelling reason other than “it's the right thing to do.” Th FCC must see this ruling and take pause.

  • http://aheram.com Jayel Aheram

    Okay, so legal constructs created by the State have First Amendment rights? Hell, why stop there? Why not give them voting rights equal to the size of their bank account, too?

    For a “libertarian-minded” blog, this argument reeks of statism.

  • mwendy

    Agreed on the irony – states create corporations. They have 4th and 5th Amendment rights, too (among others).

    That said, I prefer this state-created right to promote risk taking, innovation and power outside of government control over the proscription (as seen in McCain, Feingold) of progressives, the latter seeking mainly to add power to government under the guise of increasing liberties / opportunities for the public interest.

  • mwendy

    Agreed on the irony – states create corporations. They have 4th and 5th Amendment rights, too (among others).

    That said, I prefer this state-created right to promote risk taking, innovation and power outside of government control over the proscription (as seen in McCain, Feingold) of progressives, the latter seeking mainly to add power to government under the guise of increasing liberties / opportunities for the public interest.

  • MikeRT

    I think a lot of the problem here is that no one has stopped to consider that perhaps corporations of any sort are inherently problematic. That is not to say that they should be abolished outright, but they are a legal fiction which has certain inherent political and economic externalities such as the great difficulty in getting them (be they companies, non-profits, unions, etc.) to fully obey the law like a private citizen.

    A more radical approach to reforming the economy, one which I think would actually really help, would be to make it easier and less risky to form sole proprietorships and partnerships, but much more difficult to incorporate. The advantage there is that not only in accountability in the economy, but in the fact that there would be generally no distinction between a company being involved in the political process and a citizen being involved.

    One of the more interesting arguments I've seen about corporations lately is that if banking were still done through partnerships as it once was, it is likely that the recent collapse would never have happened because the bankers would have been personally liable for the damage that their greedy purchase of those shoddy securities would have caused their depositors.

  • mwendy

    It is balance, MikeRT. Corporations do some horrific things sometimes – e.g., Bopal, etc. They do some great things, too – the telephone, the car, Lipitor, core and edge-innovation on the Internet. The liability and organizational effects of corporations help speed the good stuff to market. And, yes, they help protect bad actors when they act badly. That said, I think the good overwhelms the bad.

  • MikeRT

    Well, that theory would have been put to the test recently if the government had not bailed out those bad actors. I would call that a fundamental hole in the design of the system since it would allow the bad actors to take down a very large chunk of the economy, no matter how responsibly it behaved, in a swirling vortex of bankruptcy and annihilation of bank deposits.

    What's telling here is that of your examples, only two are inherently beyond the scope of a sole proprietorship or most partnerships: telecommunication and internet infrastructure. Small pharmaceuticals routinely give us drugs like Lipitor, cars were produced in droves by small businesses in the first half of the 20th century. Today, most IT innovation happens at small companies, not large corporations. In fact, small businesses as the drivers of most meaningful innovation is the norm, not the exception, and few of those businesses would have a serious argument for why it **must** incorporate.

    Libertarians used to be about “freedom with personal responsibility.” I am not sure if you are one, but I don't see how capitalism can work without the assumption that most economic actors will be fully accountable for their every action. Incorporation should be reserved mainly for companies that fit a public good like a telecom or ISP and whose very nature may demand a certain rather large scale that would be unwieldy if run as another type of business.

  • mwendy

    It's hard to tell if their being a corproation actually caused the financial meltdown. Is that so for GM? Chrystler? You cannot disconnect ill-thought government policy from the mix.

    Many small companies are incorpoated as either S or even C corps. It is a tool to in order to help them take risk, and prevent other bad actors from preying upon them.

    Ultimately, shareholdrs are responsible for every action; and the Jeffrey Skillings go to prison when they usurp the law. It ain't perfect, but the tool of corproate organization works more often than not.

  • MikeRT

    And how much of the current system of limited risk is supported by the implicit assumption that if the excrement hits the oscillating device that the government will step in? The system “worked beautifully” until financial corporations were able to put themselves in a position to tank the entire US economy without federal intervention on a massive, unprecedented scale.

    Just as you cannot disconnect ill-thought government policy, you cannot mount a defense of the system while your assumptions are built on a foundation of potential government intervention, whether you would support that or not personally.

  • mwendy

    I do not advocate ditching law. It works. It is backed up by the power of government enforcement (or, “intervention” in your words). At the same time, I think corporations can serve our interests, and thus don't want to ditch them, too, because of some have failed and are part of the economic maelstrom we now see.

    We still experience the fallout of the bubble bursting. Its cause has many factors. Corporations and limited liability had some role, but did it cause it? On its own – no. Millions of bad inidivual choices by seemingly rational people had as much or a greater role – and, they arent' corporations. No one forced them to borrow a single dime. So, some responsibility lies there. We could go into the Fed, the CRA, BASEL regulations and Congressional “oversight” – but corporations on their own, c'mon.

    It's going to be small businesses that pull us out of this mess, not big, intrusive government. And, many are incorporated.

  • MikeRT

    The question is, how many of the banksters would have made the choices they did to buy those toxic assets if they personally bore out the responsibility of the finances of their banking operations? I suspect there would have been far, far greater conservatism if the norm in the banking industry was a partnership model wherein the business partners were still personally liable for the decisions they make on lending and selling “financial products.”

    It certainly will be small businesses which will pull us out, but how many more small businesses would be created if the legal system were more predictable and the need to incorporate non-existent for the vast majority of businessmen? I suspect a lot more would be created.

    As bad as those regulations you cite were, I would add that they were politically possible in part because it was faceless corporations that would bear them. Even in most liberal states, it would be a hard sell to mandate that bankers who are personally liable for the money they lend should have to make questionable loans. Legislation like the CRA is possible, in no small part, because there is no face to who will personally, perhaps perpetually, be ruined by a political misstep.

    The problem also feeds on itself as witnessed by the way that small businesses are now having to consider incorporation as a way of separating one's personal assets and income from a sole proprietorship because of federal income tax regulations. The government gets worse, the need to incorporate increases. I would point out that at America's most capitalistic, we had precious little need for incorporation in most cases.

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