Friday, January 22, 2010 - The Progress & Freedom Foundation Blog

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

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.

posted by Adam Thierer @ 6:56 PM | Campaign Finance Law , Free Speech