RSS Feed MenuI have just finished Justice Kennedy’s opinion for the Court in Citizen United v. FEC and one thing is mightily clear — conservatives are now the chief defenders of free speech and the internet, and the importance of the blogosphere has broken through to the Justices. First the bad news. The Government enacted a law that had the effect of criminalizing distribution of a movie attacking a high government official (Senator Hillary Clinton) and the four justices associated with the Left voted to uphold that law. This marks the confirmation of trends that have been occurring since Ronald Reagan appointed Justice Scalia. The law in question is part of the McCain Feingold Campaign Finance “reform.” It prohibited corporations and unions from making independent expenditures on behalf of or against a candidate, particularly within 60 days of an election or primary. Citizen’s United attempted to promote the movie through “video on demand” and this fell afoul of the regulation. They were under criminal threat for distributing a movie about Hillary Clinton through video on demand where people had to order the movie in their own homes. The Court noted that under this law Mr. Smith Goes to Washington could have been banned.
Justice Kennedy’s opinion, overruling a 1990 case (note the date) allowing bans on corporate speech, and striking the ban on corporate expenditures for speech down, favorably cites opinions by liberal icons Justices Warren, Douglas and Black. He notes President Truman’s veto, on free speech grounds, of the Republican Congress’ attempt to prevent union involvement in politics. He notes that distributing a book with corporate funds could be banned. Further, under the law the “Sierra Club run[ning] 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” would be a felony. He notes that this prohibition, among others, “are classic examples of censorship.” Yet every one was part of the law, and every one would be upheld absent the Court’s opinion. He stated “political speech must prevail against laws that would suppress it, whether by design or inadvertence.” The Court noted that before 1990, they had forbidden ”restrictions on political speech based upon the speaker’s corporate identity.” That year, with Scalia dissenting, and the liberal icons Brennan, Marshal and one day liberal icon Stevens in the majority, the Court abandoned a strong free speech principal that corporations and unions were entitled to vindicate the first amendment rights of their members and shareholders.
This is crucial. The Right, in the shape of Scalia and Thomas, is confident of its ability to engage in Justice Holmes “market place of ideas.” The Left, in the shape of Stevens, Ginsburg and Sotomayor, is not. The Right believes in protecting the ability to speak for even disfavored groups, like corporate shareholders, the Left does not. Fifty years ago such a dynamic on the Supreme Court would have been unimaginable. But fifty years ago unapologetic liberalism was popular and at the center of American political life. That is no longer the case.
The other key item in the opinion is the rise of the internet. The Court noted that upholding the law as written would trample the wide open vistas of internet speech. The Court could not determine why media companies should have free speech and other companies would not. Moreover, “With the advent of the Internet [note the capitalization by the Court] and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.” The Court hit this theme again stating “Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights.” And further “Soon.., it may be the Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues.”
The Court affirmed that the original understanding of the Constitution would not allow such a law. “The censorship we now confront is vast in its reach” the Court said. The “Living Constitutionalists” were willing to uphold such censorship, originalists were not. Laws curtailing, banning and prohibiting speech by the government are now pushed by liberals, and will be upheld by their allies on the Court. This threatens the wide open internet, and sites like this one. There will likely be a Supreme Court vacancy at the end of this term. Republican Senators ought to defend the Internet, and grill the President’s liberal nominee on whether expenditures on political speech, including blogs, can be prohibited by the government under our Constitution.
balconesfault // Jan 23, 2010 at 1:08 am
We have a ban on foreign nationals who do not reside on US soil contributing to US campaigns. However, it now appears that there is a massive loophole created as many corporations have significant ownership.
Did barring foreign nationals from contributing also constitute unreasonable deprivation of free speech?
jjv // Jan 23, 2010 at 11:37 am
The Court did not overrule any portion of the law the prevented 1) donations to politicians or 2) foreign nationals from influencing elections. What they did say was that a law seeking to keep foreing nationals out of elections has to be narrowly tailored. This law kept me from using the bank acount of a corporation I own and am the sole shareholder of to write a check to put up a poster on my company saying the “Mayor has to Go.” This would be a felony mind you. The vast sea of political speech it made criminal acts was just to much.
advocatusdiaboli // Jan 23, 2010 at 12:00 pm
Come off it David, this wasn’t about free speech it was about campaign spending by corporations. They want to bend their multi-millions to influence elections without the inconvenience of accountability for their veracity. They are tired of the pesky “people” voting how they wish in their geography–they want the Senator from Banking elected–the Representative from Goldman-Sachs. Corporations are formed to avoid responsibility and accountability of the people owning and controlling them–something we as flesh and blood people don’t enjoy. With that abrogation they should not then receive the privileges of living people including Constitutional protections. Our Founders believed strongly in personal responsibility and accountability and gave us inalienable rights in balance. We have squandered it in allowing corporations the privileges of citizenship with a dwindling in the accompanying responsibility and accountability. I don’t oppose corporations–I just don’t think they should have the rights of real people. Corporations as legal entities are not people and so should have no constitutional rights. Let their masters come out from behind the curtain and stand in the open as people the way we have to to speak and they’ll get their free speech–with the proper accountability and responsibility that comes with it for the rest of us.
kevin47 // Jan 23, 2010 at 4:51 pm
“We have a ban on foreign nationals who do not reside on US soil contributing to US campaigns. However, it now appears that there is a massive loophole created as many corporations have significant ownership.”
So fix the loophole with a law, to the degree that it exists outside of talking points land, in a manner that does not violate free speech.
“I don’t oppose corporations–I just don’t think they should have the rights of real people. ”
Do you think they should have the responsibilities of real people? I don’t think people opposing treating corporations as individuals under the law really know what they are arguing, and why they are arguing it.
We flesh and blood people certainly enjoy the freedoms that come with not being held to account for the deeds of corporations. We didn’t prosecute every Enron employee, for example.
I decry the influence of Countrywide and MBNA on the mortgage crisis as much as anyone, but changing the way we treat corporations is not going to fix anything.
balconesfault // Jan 23, 2010 at 7:51 pm
We didn’t prosecute every Enron employee, for example.
To that extent, Enron employees wouldn’t likely be prosecutable for the actions of the corporation, unless they had direct responsibility for those actions.
On the other hand, one could make the argument that every shareholder in Enron had a level of responsibility.
kevin47 // Jan 24, 2010 at 1:58 am
“To that extent, Enron employees wouldn’t likely be prosecutable for the actions of the corporation, unless they had direct responsibility for those actions.”
That was my point.
“On the other hand, one could make the argument that every shareholder in Enron had a level of responsibility.”
Exactly.
aleax // Jan 24, 2010 at 2:47 pm
I’m confused: if McCain-Feingold was in so blatant a violation of the Constitution and Conservative principles, how did McCain end up as the last Republican candidate for the Presidency?
jjv // Jan 25, 2010 at 11:37 am
Aleax:
McCain won despite McCain/Feingold not because of it. The key issue in 2008 was the war and who could beat Obama. McCain was the most likely to prosecute the war and beat Obama. Romney’s Masscare and lean to the Left while in Massachusetts, while prudent, did not allow him to credibly attach McCain, particularly on Life and Marriage. Giuliani? No. Huckabee had too much economic liberalism and seemed incredible as commander in chief. McCain was the best we had. I wish he had been 10 years younger and willing to take it to Obama relentlessly on his associates, bad choices and inexperience but he was not. Combined with the worst environment for a Republican since 1976 there was not a lot of hope of anyone winning. The Republican electorate made the wisest choice however.