Blockbuster Victory for Free Speech


Today’s Ruling Lets Corporations Speak, But Other Battlefronts Remain

INSTITUTE FOR JUSTICE: Arlington, Va.””Today, the U.S. Supreme Court announced a landmark victory for free speech, making clear in Citizens United v. Federal Election Commission that under the First Amendment the government cannot stifle dissent by restricting the right of corporations to spend money on independent political speech.

Justice Kennedy, writing for the Court, emphasized that the government’s ban on corporate speech was censorship, pure and simple: “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful.” He added, “The First Amendment confirms the freedom to think for ourselves.”

“This is the most significant First Amendment decision from the Supreme Court in more than a decade,” said Steve Simpson, an Institute for Justice senior attorney who authored the Institute’s amicus brief in Citizens United. “The Court has finally struck down blatant censorship that masquerades as campaign finance reform. Slowly but surely, the Court is prying Americans’ free speech rights away from the hands of government bureaucrats. The words of the First Amendment”””˜Congress shall make no law . . . abridging the freedom of speech'””demand nothing less.”

The Court overturned a case that had severely limited corporate political speech: Austin v. Michigan Chamber of Commerce, which said that governments could ban corporations from independently speaking out about political candidates. It also overturned parts of McConnell v. FEC, which upheld a ban on “electioneering communications”””corporate- or union-funded broadcast ads that merely mention a candidate shortly before an election.

The Court did so because it recognized. . . that speech bans like these inevitably embolden politicians and self-styled “reformers” to call for even more censorship, such as banning corporate-funded films about candidates, like the nonprofit Citizens United Hillary: The Movie, or even corporate-funded books if they attack or support a candidate.

In today’s opinion, the Court ruled that everyone, including corporations, has the right to speak out about issues and candidates. The government may not restrict the marketplace of ideas: “The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.” In other words, the First Amendment rejects government paternalism, instead “entrusting the people to judge what is true and what is false.”

“Politicians hate criticism and so they sought to heavily regulate””if not ban””the most effective political speech against them,” said Chip Mellor, the president and general counsel at the Institute for Justice. “Governments have aimed the campaign finance laws at corporations precisely because they can speak effectively. By overturning Austin and McConnell, the Court has taken a critical first step to restoring robust constitutional protections for free speech.”

In today’s decision, although the Court upheld the disclosure provisions that applied to Citizens United, it cited the amicus brief of the Institute for Justice in noting that the “threats, harassments, or reprisals” that disclosure of donors’ identities can generate are a “cause of concern.” Thus, the Court left open the possibility that other groups engaged in debate on controversial issues could successfully challenge the disclosure provisions.

So-Called “Fair Elections Now Act”

Anticipating today’s ruling, those advocating campaign finance restrictions have already begun promoting new regulations to “deal with” the freeing of more Americans to speak about politics. One proposal, the “Fair Elections Now Act” in Congress, would publicly fund the campaigns of those who run for federal office, while imposing a host of complicated regulations on candidates and their supporters. (For a 72-second video on FENA, visit: www.ij.org/FENAvideo.)

“Today, the Court made clear that under the First Amendment, free speech is not a problem to be solved with government bans and red-tape; it is a fundamental right enjoyed by all Americans,” said Simpson. “This is a message that congressional proponents of the so-called Fair Elections Now Act””yet another proposal by politicians to stifle speech that threatens their re-election””need to hear.”

Moreover, as IJ Senior Attorney Bert Gall noted, there is nothing to fear from corporate political speech: “Companies do not speak with one voice; instead, they represent a wide variety of viewpoints from across the ideological spectrum. So while Wal-Mart may speak out in favor of politicians who support health care reform, other retailers such as Whole Foods may do the opposite. And if Chrysler runs ads on behalf of candidates who won it favorable bankruptcy treatment, institutional investors whose bonds were rendered worthless can now criticize those same politicians. The result is a free-wheeling and uninhibited debate, which is just what the First Amendment is meant to provide.”

The Next Big Free Speech Cases

Two other cases will give the courts the opportunity to take additional steps toward freeing speech from burdensome and unnecessary campaign finance laws. SpeechNow.org v. FEC, which will be argued in front of the entire D.C. Circuit Court of Appeals on January 27, 2010, involves a challenge to a federal law that forces people to sacrifice the First Amendment right to associate in order to exercise the First Amendment right to speak. SpeechNow.org is a group of citizens who wants to band together, pool resources and run ads favoring some candidates and opposing others. But while each person on his own could spend as much as he wants, the law says no one can contribute more than $5,000 to the joint effort. Along with the Center for Competitive Politics, IJ represents SpeechNow.org.

In Sampson v. Buescher, a group of neighbors who were sued for speaking out against the annexation of their neighborhood into a nearby town have challenged Colorado’s burdensome campaign finance regulations of ballot issue advocacy. Under Colorado law, groups that spend as little as $200 speaking for or against a ballot issue must register with the state and disclose the identities, addresses and often employers of anyone who contributes more than $20 to their cause. IJ represents the neighbors in the case, which is currently before the 10th Circuit Court of Appeals.

The Institute for Justice defends First Amendment rights and challenges campaign finance laws nationwide. In May 2009, the Institute secured a federal court ruling striking down Florida’s electioneering communications law, and IJ previously won a ruling in the Washington Supreme Court that stopped an attempt to regulate media commentary as “in-kind” political contributions. IJ is currently challenging laws in Colorado that suppress speech about ballot issues by grassroots groups and nonprofit organizations, as well as Arizona’s “Clean Elections” law for funding political campaigns with taxpayer dollars.

For more information, visit www.ij.org/FirstAmendment.
901 N. GLEBE ROAD, SUITE 900 ARLINGTON, VA 22203
(703) 682-9320 FAX (703) 682-9321

# # #


Steve Buckstein is founder and senior policy analyst at Cascade Policy Institute, Oregon’s free market public policy research center.

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Posted by at 12:52 | Posted in Measure 37 | 27 Comments |Email This Post Email This Post |Print This Post Print This Post
  • Mort

    A huge, huge blow to the lib dems.
    Huge.

  • Diamond Jim

    These SCOTUS morons have really done it this time. Now BIG BUSINESS will be able to speak out against candidates and policies they don’t like – and right near election time, too.
    This is unAmerican to say the very least.
    I don’t like this one bit.
    Something is wrong when big business can spend all their money to sway elections. What will the unions do now? They can’t compete with the likes of big, giant corporations.
    This whole thing is crazy.
    Nuts.
    I am thinking of moving to Canada.
    Next thing you know, Walmart will be taking out ads in favor of some Republican.

  • v person

    “Free speech?” And here I thought it was about paid speech.

  • Ryan

    The constitution provides rights to citizens. I’m not sure when we decided that a corporation is the same thing as a citizen.

    Some may say that a corporation is made up of people; however, by empowering corporations with this power, you are doubling the voice of the people that it is composed of. They are now able to speak their voice both as a citizen and as a piece of the corporation. Certainly counter-intuitive to providing an equal voice to EVERY citizen.

    The percentage of the population that these corporations are comprised of is very small. Once again perpetuating the paradigm of giving the most power to only a few.

    And to masquerade this as a victory for free speech is ridiculous.

    • Steve Plunk

      We tax corporations and hold them liable for torts just like individuals so it would make sense they retain a few of the rights of individuals. We offer rights once considered exclusive to citizens to illegal aliens and foreign visitors. It’s no doubt a murky area of law but the courts moved to the more liberal application of free speech rights. I see that as a victory.

      • v person

        “so it would make sense they retain a few of the rights of individuals.”

        Why not give them the right to vote then? Each corporation could be allotted voting rights based on their gross sales.

        So much for conservatives being against judicial activism. Making up rights that are not in the constitution.

        • Steve Plunk

          Reductio ad absurdum. We could play this game all day. If that’s the best argument you got then it appears the court got it right.

          The court didn’t make up rights they found them in the first amendment guarantee of free speech. If they can see naked dancing as protected speech why not political speech by a corporation or union? This is far from judicial activism.

    • Rupert in Springfield

      >And to masquerade this as a victory for free speech is ridiculous.

      Well, to masquerade this as a concern of corporate speech is equally ridiculous. Where is the concern over unions? If a corporation is a construct without free speech rights, then certainly a union is. Yet I notice no mention of unions, just anger over corporations. What you have an issue with is the message corporations might have, not the free speech aspect of the decision. That is truly a masquerade of concern over free speech.

      • v person

        “they found them…”

        Oh. They “found” them. It says in the 1st amendment that corporations are people with the same rights as individuals? I need to go back and re-read.

        How is this different than interpreting a “right to privacy?” It isn’t. Its judicial activism. Which frankly I’m not opposed to. To the victor go the spoils, and for the time being the right wing owns 4 votes in the Supreme Court, and rents a 5th on most occasions. I’m just saying what is good for the goose is good for the gander.

        “If a corporation is a construct without free speech rights, then certainly a union is. ”

        I agree. I think any entity that is more than one individual does not have the rights granted to individuals in the constitution. I’m even handed. How about you?

        The case at hand was not about unions. Hence there was no mention by me about which the case was not about. It remains to be see whether what Kennedy says applies to corporations also applies to unions. It also implies that foreign owned corporations doing business in the US may be just as free now to spend gobs to influence American elections. That could get interesting if China pitches in.

        And why are corporations (and unions perhaps) free to spend whatever on political matters, but still not free to donate any sum of money they want to a specific candidate? What is the constitutional logic there?

        “What you have an issue with is the message corporations might have, not the free speech aspect of the decision. ”

        Don’t tell me what I have an issue with or don’t. My issue is that money in politics corrupts. It is inherently anti-democratic when one entity or group of entities can outspend another group and thus get a favorable outcome in an election. This decision opens the door for that to happen with even greater occurrence than it already does. I care more about democracy than I care about the freedom to spend money to influence it. One person one vote. That ought to be the goal.

        • Tami

          “My issue is that money in politics corrupts. It is inherently anti-democratic when one entity or group of entities can outspend another group and thus get a favorable outcome in an election. This decision opens the door for that to happen with even greater occurrence than it already does. I care more about democracy than I care about the freedom to spend money to influence it. One person one vote. That ought to be the goal”

          Here we have a sore loser posing as some sort of altruistic victim – what a surprise that it/he/she should be Dean Apostol.

          …or not.

          Nevertheless,

          SCOTUS RULES!…

          …and Dean… well, Dean will just have to live with it.

          “caring person” that he is….

  • Dogman

    The fools.

  • Sam

    Good ruling.

    People don’t give up their right to freedom of the press just because they join a group (e.g. a union or corporation).

    If it takes more than two people to operate a printing press (or film a political ad), then Congress could take away ALL Freedom of the press, because they’re acting as a “group” and groups don’t have rights–only individuals.

    If Fox News Corporation can spend 50 minutes out of every hour promoting conservative ideas and candidates (under the First Amendment), then how is it right to restrict other corporations during those 10 minutes of commercials to present a differing view?

    The First Amendment does not get put on hold during commercial breaks or during the two months closest to an election. That would be an abridgment of Free Speech.

    Free Speech includes Political Speech, and again, PEOPLE don’t give up their right to promote their ideas just because they do so together in the context of a group.

  • FTRich

    This is a great ruling. It’s time we allow corporations to become citizens endowed with all rights. It’s silly that we don’t allow them to run for office. Instead of buying state and federal legislators, they could simply take the direct route and be the officeholder. Nike for Oregon State Senate! The U. S. Senator from Aetna! Pepsi for President!

  • Pat Ryan

    Yup. The strict constructionists who look only at original intent, have discovered that Adams, Madison, Hamilton, Jefferson and the rest of the founders favored the ability of huge mulit-national corporations to use television, radio, print media, and any other method of 21st century copmmunication to further their own interests.

    I’m sure that this is exactly what the founders had in mind. To take a phrase from an ongoing campaign, corporations just want their FAIR SHARE.

    Right?

    Pat Ryan (Co-owner of a C-corp, but speaking as na individual human being type “person”)

    • Steve Plunk

      Pat,

      The founders recognized the priceless value of free speech and decided to protect it with the very first amendment. The ability to speak out against tyranny or injustice is the foundation of a just society. Given that it is so very important the courts have rules even corporations have a right to speak out as they are a voluntary association of individuals. The courts also recognized unions in the same manner.

      Some argue the size and financial resources of corporations gives them an unfair advantage when in fact it merely allows them to compete with the government itself in influencing politics. The government has more lobbyists, more resources, and more time to influence legislative action than any other entity yet no one calls for curbs on that activity. Department spokesmen can influence elections with official pronouncements and unreviewed studies. In Oregon the governor can get free press coverage to influence the legislature and voters. There is no unfair advantage when corporations use their resources to further their interests.

      I would rather the court err in favor of more liberal speech than it err for more restrictions.

      • v person

        “Given that it is so very important the courts have rules even corporations have a right to speak out”

        Yep, Speak out with umpteen million dollars. One man one vote. One corporation one zillion dollars to influence those votes. Great for democracy.

  • OI

    Steve – The founders certainly never would have supported a decision like this one that will allow corporations owned by foreign governments, such as the People’s Republic of China to spend money to influence elections in the United States. Yet that is exactly what this decision does.

  • Administrator

    A comment from “neo-fascist” was deleted. That user name violates Oregon Catalyst Posting Rules found at About OregonCatalyst.com above.

    Since the comment itself was not a violation of the Posting Rules, it is re-posted here:

    “I hope we shall crush in its birth the aristocracy of our moneyed 
corporations, which dare already to challenge our government to a 
trial of strength and bid 
defiance to the laws of our country.”

    -Thomas Jefferson, 1812

    “The question will arise, and arise in your day though perhaps not fully in mine: ‘Which shall rule–wealth or man? Which shall lead–money or intellect? Who shall fill public stations–educated and patriotic free men, or the feudal serfs of corporate capital?’”



    -Edward G. Ryan, Chief Justice, Wisconsin Supreme Court, 1873

    “The first truth is that the liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That, in it’s essence, is fascism – ownership of government by an individual, by a group, or by any other controlling power.”

    -Franklin Delano Roosevelt

    • retired UO science prof

      Thank you for removing that cretin and that awful word from the site, Administrator. Whoever posted those quotations is clearly a Nazi.

      • Steve Buckstein

        Actually, this person described themselves in an earlier post as an Obama supporter. They’re perfectly free to comment here as long as they don’t violate the Posting Rules.

      • Tami

        What you seem to see so “clearly” is an obviously flawed inference.

        Now, what could possibly cause a “science prof”, retired or otherwise, make such a cretinous remark – soooo unscientific – and name-calling to boot.

        Tsk.

        I find the moniker “retired UO science prof” very, very distasteful. It elicits in me feelings of revulsion and ill will, but you don’t see me calling you names, do you? Your apparent loss of control, triggered by the sight of a word, is quite troubling. Perhaps you should seek out some sort of publicly-funded psychiatric care. You may be a ticking time-bomb.

        I worry.

        PS, Do you also salivate at the sound of a bell ringing?

        • current UO student

          It appears both yours and Steve’s sarcasm detectors are on the fritz. Perhaps your indignation should be directed at the site’s Administrator? He/she is the one who saw fit to remove (and then re-post) neo-fascist’s comment, rule-breaking username and all. My guess is the humor/irony was not lost on the Administrator, though it seems to have been in your case.

          PS. There’s no need for you or anyone else on this blog to reiterate your disdain for public employees, be they professors, policemen, engineers, or otherwise. It is well-known. And tiresome.

  • John in Oregon

    VP you raised a question with your comment > *Oh. They “found” them. It says in the 1st amendment that corporations are people with the same rights as individuals? I need to go back and re-read…How is this different than interpreting a “right to privacy?” It isn’t. Its judicial activism.*

    Actually the constitution directly protects the right to privacy. The prohibition against unlawful search and seizure is but one example. Your reference to the right of privacy is to the Roe V Wade logic of penumbras which goes well beyond those protections.

    Writing for the majority Justice Anthony Kennedy’s carefully crafted opinion addresses your “corporations are people with the same rights as individuals” comment.

    What Kennedy said is essentially this. When a group of individuals come together voluntarily in an association they do not give up their collective rights to speak without censorship.

    Some background is in order. Citizens United produced a documentary about Hillary Clinton. The content of the documentary was clearly political speech. The Federal Election Commission (FEC) prohibited the distribution of the documentary.

    Two additional points are in order.

    During the 2004 campaign Michael Moore produced and distributed a documentary equally filled with political speech. In this case the subject of that speech was George W Bush. The FEC allowed this because Moore had a “media exemption” to the law. That is some corporations are muzzled and others are not.

    Citizens United claimed the same exemption and were denied by the FEC.

    All of the above facts were accepted at trial.

    The case brought by Citizens United was very narrowly crafted to the issue of denial of media exemption.

    During the initial hearing the Solicitor General arguing for the FEC stated the Government had the broad authority to censor any political speech. The Supreme Court then took the unusual step of a rehearing to address the over aching issues rather than the narrow media exemption issue.

    Bradley Smith, the Blackmore/Nault Professor of Law at Capital University Law School captured the essence of the case very nicely.

    “In March, Deputy Solicitor General Malcolm Stewart stood before the U.S. Supreme Court and argued that the Constitution gave the government the power to ban the distribution of a politically oriented movie if, like most movies, it was distributed by a corporation. Justice Samuel Alito replied, “That’s pretty incredible.”

    By the time Stewart’s turn at the podium was over, he told the court that the government could restrict the distribution of books through Amazon’s digital book reader, Kindle; could prevent a union from hiring a writer to author a political book; and could prohibit a corporate publisher from publishing a 500-page book if it contained even one line of candidate advocacy.

    Today, in Citizens United v. Federal Election Commission, the Supreme Court said, “No, it [the government] can’t.””

  • John in Oregon

    OI your question is a bit tougher. > *The founders certainly never would have supported a decision like this one that will allow corporations owned by foreign governments, such as the People’s Republic of China to spend money to influence elections in the United States. Yet that is exactly what this decision does.*

    The question is complex, but lets take a simple case.

    Would the founders have supported a decision that the political speech of a citizen of the People’s Republic of China could be censored by the government? Would the founders have supported a decision that the political speech of two citizens of the People’s Republic of China could be censored by the government simply because they associate with each other?

    Also note what the court did not strike down. They left the rules transparently identifying the speakers intact.

    • OI

      Sure. But would they have supported a decision that said that the Government of the People’s Republic of China can use the corporate form to circumvent US restrictions on political contributions by foreign individuals or entities as the Roberts Court has done?

      Corporations are not people, and prior to this decision there was nothing in US law that prohibited people who worked for a corporation or who owned stock in a corporations from bundling their resources to spend on political campaigns.

      What was barred, and what should be barred, is direct contributions from corporate and union treasuries.

      Also, John missed an important point in CU. The case was not brought forward by a corporate entity, and none of the litigants argued for sweeping away 100 years of campaign finance regulation. John Roberts ordered re-argument on broader issues, expressly with the intention of striking down 100 years of case law.

      The free speech arguments in this case are sophistry. They are little more than rationalizations intended to advance the interests of transnational corporations, the wealthy few, and others who believe that allowing concentrated wealth an even greater role in government serves their narrow personal or partisan interests or the interests of their financial benefactors.

  • Pat Ryan

    There is one Real World fact worth noting. No functioning democracy or republic in the world allows unrestrained corporate financial participation in the political process.

    *Given that it is so very important the courts have rules even corporations have a right to speak out as they are a voluntary association of individuals. The courts also recognized unions in the same manner.*

    I’m happy to lump unions in with corporations when discussing speech. I find it appalling and intellectually dishonest to argue that money is speech, when it’s pretty clear that if you have a bullhorn and I’m wearing a ballgag, we are not experiencing equal access to “free speech”.

    It’s also true that corporate personhood became enshrined in US law as a result of criminal behavior in the clerk’s office in support of railroads. Have a look at the Santa Clara thingy sometime. There was never an original ruling to that effect, just dishonest transcription of same.

    The question I have to ask, is does this benefit or damage the republic. I’m pretty clear on where I come down on the question.

  • John in Oregon

    OI I think we agree on several points.

    You asked > *But would they have supported a decision that said that the Government of the People’s Republic of China can use the corporate form to circumvent US restrictions on political contributions by foreign individuals or entities as the Roberts Court has done?*

    I see a several different possibilities. The one of major concern is when the entity, as you pointed out, is a government donating to a candidate or a party.

    This ruling did not change the prohibition of donations by corporations or foreign nationals to candidates or parties. I don’t know how good that prohibition is given that in the 08 campaign cycle some campaigns received and accepted contributions from off shore individuals via the don’t ask and don’t know rule.

    I agree with your observation that > *there was nothing in US law that prohibited people who worked for a corporation or who owned stock in a corporations from bundling their resources to spend on political campaigns.*

    This is absolutely true. It’s particularly easy for unions to bundle dues to fit that requirement. Similarly large corporations with the legal resources were also able to meet the bundling requirements and red tape.

    The real winners in this ruling are the small guys. Prior to this ruling the Fellowship of Independent Resource Engineers, FIRE, or a small or mid cap S or C corporation like Bills plumbing had no chance to work through the FEC red tape. Now Bill and/or FIRE can buy an add which says we like John Jones for Senate.

    You comment that > *What was barred, and what should be barred, is direct contributions from corporate and union treasuries.*

    My understanding is the direct contribution prohibition was not changed by the ruling.

    Thank you for making the point that > *an important point in CU. The case was not brought forward by a corporate entity, and none of the litigants argued for sweeping away 100 years of campaign finance regulation. John Roberts ordered re-argument on broader issues, expressly with the intention of striking down 100 years of case law.*

    You raise two significant issues.
    1] That relief was sought by an individual, and
    2] As I had mentioned the case brought by Citizens United was very narrowly crafted to the issue of denial of media exemption.

    I suspect the first issue is what triggered the ruling. When Deputy Solicitor General Malcolm Stewart stood before the court and argued that the government could censor an individuals book simply because it was sold through a cooperation like Amazon that is a stunning statement. If allowed to stand then the book could only be sold by the author on the street corner.

    Quite a few have made the big money, concentrated wealth argument. I would counter that the restriction had the opposite effect, encouraging big money. Big corporations like GE and big labor such as SEIU have the resources to run the gauntlet of red tape and bundle large sums of money. Small guys, unions like WIRE and Bills plumbing do not.

    Free speech arguments > *are little more than rationalizations intended to advance the interests of transnational corporations, the wealthy few, and others who believe that allowing concentrated wealth an even greater role in government serves their narrow personal or partisan interests or the interests of their financial benefactors.*

    Prior to the ruling I see little indication that big money, for example, SEIU, GE, or George Soros had much impediment to the use of money to influence politics.

    So long as Congress has the power to dictate what crops a farmer can or cannot plant for his own use and so long as Congress can put your company out of business or to put your competitor out of business money will seek a way to influence politics.

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