Too Much Free Speech?

Randall P. Bezanson

• Publisher: University of Illinois Press
• Year: 2012
• ISBN:
  9780252094224
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Randall P. Bezanson takes up an essential and timely inquiry into the Constitutional limits of the Supreme Court's power to create, interpret, and enforce one of the essential rights of American citizens. Analyzing contemporary Supreme Court decisions from the past fifteen years, Bezanson argues that judicial interpretations have fundamentally and drastically expanded the meaning and understanding of "speech."   Bezanson focuses on judgments such as the much-discussed Citizens United case, which granted the full measure of constitutional protection to speech by corporations, and the Doe vs. Reed case in Washington state, which recognized the signing of petitions and voting in elections as acts of free speech. In each case study, he questions whether the meaning of speech has been expanded too far and critically assesses the Supreme Court's methodology in reaching and explaining its expansive conclusions.

II New Speakers

The First Amendment coverage question involves a number of linked questions: Who is a speaker, if there need be one? What counts as “speech”? What acts, including group relationships with others, are also swept into “speech”? What constitutional purposes must qualifying free speech serve? And there are others. In the pages that follow we will separate these pieces out in order to isolate specific definitions and issues, though we will always see the shadows of the other dimensions of free speech and we will regularly stitch the relevant pieces back together as we assess the Court’s work.

We start with the speaker, and specifically with the Court’s expansion of speakers whose expression qualifies for First Amendment protection. The new speakers we will explore are, at first glance, quite unlikely ones. The first new speakers are corporations, and specifically business corporations, who claim freedom to speak for themselves as entities independent of the shareholders and members and other people who comprise the legally constructed organization that we refer to as a corporation. The second and perhaps more surprising new speaker is government, which claims protection under the First Amendment in the form of immunity from competing speech claims by individuals and other private speakers. The First Amendment protects individuals from government restrictions on speech. Should it also protect government from people under the First Amendment?

Our two decisions, the Citizens United and the Summum cases, are highly controversial and perhaps even radical. Our job will be to understand them and the Supreme Court that decided them.

CHAPTER ONE

Corporations as Speakers

Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010)

The Supreme Court’s Citizens United decision was announced on January 21, 2010. Just weeks later it moved President Barack Obama in his State of the Union Address to make a special point of criticizing the Court, which had declared the prohibition on corporate and union electioneering within thirty days of a federal election unconstitutional, and in the process conferred broad First Amendment rights on corporate and union political speech. The decision, he said, “is nothing less than a vote to allow corporate and special interest takeovers of our elections. It is damaging to our democracy. It is precisely what led a Republican president named Theodore Roosevelt to tackle this issue a century ago.”¹ Justice Samuel Alito broke the code of sobriety and expressed shock at the president’s statement. Great controversy followed, with most, but not all, voices supporting the president’s view.

This was not much ado about nothing.

Campaign finance reform has a long history in the United States. Calls for reform began in the late 1800s and first took hold in the early 1900s with a prohibition on corporate campaign contributions. At mid-century contribution limits were also placed on unions, and federal government employees were prohibited from active participation in federal campaigns. The issue again gained legislative momentum in the 1970s. The Federal Election Campaign Act (FECA) of 1972 implemented rules requiring political donors to disclose the amount given to campaigns as well as the recipients of the gifts. Subsequent reports of financial abuses in the 1972 presidential election, however, prompted further congressional action. In 1974, FECA was amended to include limits on contributions from individuals, political parties, and political action committees (PACs). The 1974 amendments also provided for the creation of an independent federal agency, the Federal Election Commission (FEC), to oversee enforcement of campaign finance laws.

Following the 1974 amendments, FECA remained untouched until 2002, when renewed public concern over campaign spending—especially unregulated contributions made to national political parties (so-called “soft money” donations)—prompted the passage of the Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold bill. Though the bill modestly raised limits for contributions to a particular candidate, it is chiefly remembered for eliminating soft-money donations. It also prohibited the use of corporate or union funds in paying for an “electioneering communication” within thirty days of a primary election or caucus and within sixty days of a general election.

Then the law of unintended consequences set in. While Congress sought to closely regulate contributions to candidates and parties in McCain-Feingold, Congress also shifted the balance of power in campaign spending from established political parties to independent organizations rallying around a particular ideology or political cause. The bill placed comparatively few restrictions on independent expenditures made in support of a political belief, candidate, or cause. Groups organized under alternative structures thus had even broader latitude to become actively involved in elections.

Congress’s aim, however, was to limit the two groups it deemed most likely to spend large sums of money on electioneering communications—corporations and unions—from exercising too much influence in the last weeks of the election cycle. That limit is the issue in the Citizens United case. Citizens United is a nonprofit corporation dedicated to championing conservative political causes. During the 2008 presidential election cycle, Citizens United produced a feature-length documentary titled “Hillary: The Movie” that portrayed Hillary Clinton in a negative light and sought to discredit her as a viable presidential candidate. To ensure that the program would reach the broadest possible audience, Citizens United wanted to air commercials advertising the documentary’s availability through the free on-demand service offered by some cable providers. Citizens United was prevented from airing those commercials, however, because of the McCain-Feingold provision restricting corporations from engaging in electioneering communications within thirty days of a primary election. Following a lower court ruling that upheld McCain-Feingold’s restrictions on corporate-funded political advertising, Citizens United appealed to the Supreme Court, alleging that those restrictions violated the corporation’s constitutionally protected right to freedom of speech.

The Supreme Court placed the case on the docket on August 18, 2008, and heard oral arguments on March 24, 2009. Citing the need for further development, the Court then took the exceedingly rare step of ordering the parties to reargue their case on September 9, 2009. On January 1, 2010, the Court handed down the landmark Citizens United decision. Our interest in the Citizens United case will be limited to its core holding, without which none of the fuss would have occurred. The holding was that corporations, just like individuals, have full First Amendment rights to speak, at least on political matters. This, in turn, meant that government restrictions on corporate speech would be subject to the highest level of constitutional scrutiny, a standard that could rarely be satisfied and that, if applied to the electioneering provision, would without a doubt lead to its invalidation on First Amendment grounds.

The electioneering prohibition was far from perfect. It exempted media companies. And it didn’t limit individuals, who remained free to spend their vast fortunes at a rate dwarfing corporations. Yet it included within its grasp small and individual- or family-owned corporations, nonprofit corporations, and political and ideological organizations that used the corporate form or received funding from corporations. These included most “ma and pa” businesses, churches, nonprofit and charitable organizations, major advocacy groups such as right-to-life organizations, the NRA, the ACLU, the NAACP, and so on. Congress’s action in enacting the electioneering provision was based, at best, on limited evidence of undue influence or corruption by corporations. Congress’s judgment was intuitive and experience based, and the line it drew between corporations and unions, on the one hand, and rich people and organizations not using the corporate form, was a political compromise—that is, it was imperfect, ugly, and grossly overbroad and underinclusive. Such a law could not claim that the government’s interest was compelling—a high risk of actual corruption or crippling loss of faith in the democratic process—or that the electioneering provision was narrowly tailored toward preventing those harms in the least speech-restrictive manner. Given the Court’s conclusion that corporations are First Amendment speakers and their speech is fully protected at the highest level, the result was foreordained.

In the pages that follow we will examine the justices’ views and the reasoning behind Court’s the 5–4 decision. We will do so through a review of the second oral argument before the Court and an analysis of the Court’s opinion. After the Court had first heard oral argument in 2009, it scheduled a second argument and instructed the parties to brief and argue the general question of the constitutional status of corporate speech. The Court had ruled in prior cases that much corporate speech was protected by the First Amendment, but as a general rule the protection afforded such speech was weak and limited. We will see the justices arguing about exactly what the Court had decided in the prior cases. And we will see the sources and assumptions underlying their very different views in the second oral argument and, most critically, in their opinions.

After taking full stock of the Court’s decision, and in light of the virtual absence of serious constitutional analysis of the core question of the First Amendment’s meaning, we will then step back and consider from a fresh and broader perspective whether corporations should be fully protected speakers under the First Amendment, drawing on the Constitution’s text, its history, and the structural, philosophical, and practical considerations that bear on this central question.

We begin with the second oral argument, held in the Supreme Court at 10:00 A.M. on Wednesday, September 9, 2009, before the official beginning of the 2009 term on the first Monday of October. Justice John Roberts was the chief justice. Justice John Paul Stevens was the most senior justice, who would retire at the end of the coming term, to be replaced by Justice Elena Kagan. The other justices, in order of seniority, were Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, and Samuel Alito. The Court was deeply divided on a jurisprudential level, with differing views of the role and power of the Court, the methodology of constitutional interpretation, and, based on a ten-year record of decisions, the scope of the First Amendment freedom of speech.

The lawyers arguing the case were U. S. Solicitor General (now Justice) Kagan, who defended the electioneering provision of the campaign law on behalf of the United States. She was joined by Seth Waxman, who had been the solicitor general from 1997 to 2001. He represented Senator McCain (co-sponsor with Senator Feingold) and other senators who sponsored and supported the campaign reform act in Congress. The lawyers arguing against the constitutionality of the electioneering provision were, first, Theodore Olson, who also served as solicitor general from 2001 to 2004. He represented Citizens United, the corporation that had produced and distributed the allegedly prohibited electioneering film that was highly critical of Senator Hillary Clinton, then a presidential candidate and now secretary of state. Olson was joined by Floyd Abrams of New York City, perhaps the most prominent First Amendment lawyer in the United States. Abrams represented Senator Mitch McConnell, Republican minority leader and opponent of the McCain-Feingold campaign reform bill, which was enacted in 2002. Senator McConnell was not a party to the Citizens United case but instead appeared as amicus curiae (friend of the court, literally), with the consent of Olson. He had been the named party in a previous and important case that challenged the entire McCain-Feingold bill, enacted as BCRA, which of course included the electioneering provision at issue in Citizens United, and which was upheld by the Supreme Court. Dubbed the McConnell case in Supreme Court parlance, it was one of the prior decisions the Court brought into question in the Court’s announcement of the new briefing and second oral argument in Citizens United.

The oral argument attracted much national attention, and the case involved a quite remarkable and prominent cast of litigants and lawyers. Justice Roberts announced the case and called on Olson for his oral argument shortly after 10:00.

CHIEF JUSTICE ROBERTS: We’ll hear reargument this morning in Case 08-205, Citizens United v. The Federal Election Commission. Mr. Olson.

MR. OLSON: Mr. Chief Justice and may it please the Court: Robust debate about candidates for elective office is the most fundamental value protected by the First Amendment’s guarantee of free speech. Yet that is precisely the dialogue that the government has prohibited if practiced by unions or corporations, any union or any corporation.

The government claims it may do so based upon the Austin decision that corporate speech is by its nature corrosive and distorting because it might not reflect actual public support for the views expressed by the corporation. The government admits that that radical concept of requiring public support for the speech before you can speak would even authorize it to criminalize books and signs.

This Court needs no reminding that the government, when it is acting to prohibit, particularly when it is acting to criminalize, speech that is at the very core of the First Amendment, [it] has a heavy burden to prove that there is a compelling governmental interest that justifies that prohibition and that the regulation adopted, in this case a criminal statute, is the most narrowly tailored necessary to accomplish that compelling governmental interest.

A number of points should be made here. First, following the first oral argument, the Court specifically requested supplemental briefs and a second oral argument on whether Austin and part of the McConnell case, which upheld restrictions on electioneering (candidate-focused) communications by corporations or unions within thirty days of a federal election, should be overruled.

Second, Olson’s characterization of the Austin case is extreme. Austin involved a candidate endorsement by the Michigan Chamber of Commerce, a corporation. Michigan’s prohibition on corporate endorsement ads was upheld. Olson says that, under the Austin case, corporate speech must “reflect actual public support” for its content before it will be protected by the First Amendment. It is clear, however, that while language to that effect is contained in the Austin opinion—it was actually “popular support,” a more ambiguous word than “public”—that’s not what the Court meant. Instead, it seems to have meant that a corporation’s speech must reflect the actual views (popular support) of the members or owners (stockholders) for whom the corporation is speaking, and the Michig...

Table of contents

• Cover
• Title
• Copyright
• Contents
• I. Introduction
• II. New Speakers
• III. Forms of Speech
• IV. Voting as Speaking, Expressive Association, and Privacy
• V. Is There Such a Thing as Too Much Free Speech?
• Notes
• Index