The Importance of Citizens United

 Posted by on 27 January 2010 at 8:00 am  Free Speech, Law
Jan 272010

Steve Simpson of the Institute for Justice was kind enough to post his thoughts on the significance of the recent Supreme Court decision on campaign speech in the comments on my post Freedom of Speech, Somewhat Restored. I thought them worth reproducing in a blog post of their own. Here’s what he wrote:

Thanks for posting our release, Diana. I thought folks my be interested in a few additional thoughts on why this decision is so significant. No Supreme Court decision is perfect, and this one is far from it from a strict philosophical standpoint. But judging from where we were, it is a very significant step forward. The importance of this decision goes beyond its basic holding, which is that the government cannot prevent corporations from spending money on their own independent speech during elections. Corporations now have the same rights to spend unlimited sums on independent advocacy as individuals do. A corporation is simply a voluntary association of individuals. It has the same “rights” that the individuals do; no more, and no less. The Supreme Court recognized that basic point, which is very important.

But the Court’s reasoning was also very good in many respects. Those who have heard Eric Daniels’s excellent lecture on the First Amendment know that the Supreme Court has treated the freedom of speech primarily as a means to the end of promoting “democracy” rather than as an inviolable individual right. The history of campaign finance law has been a march toward the logical conclusion of this premise, which is complete government control over political speech. This is the reason that campaign finance jurisprudence is so important–because the consequences of the court’s approach are so apparent in this area (and because elections are the path to political power, which is the reason the left cares so much about campaign finance law). (Incidentally, recall what Ayn Rand said about free speech in Censorship: Local & Express–that leftists are willing to leave speech relatively free because they want to control the material realm, while the right is the opposite. In my view, that dynamic is reversed in campaign finance law, both because it involves the regulation of money and because the left recognizes campaigns and elections as the path to political power. But I digress).

The Court unfortunately did not reject this approach, but it did emphasize much more than it ever has before that the First Amendment protects the rights of individuals to speak, to organize, and to think for themselves. The battle on this front is by no means over, but we now have some very good ammunition to use in the future.

The Court’s approach was also surprisingly principled and objective. For instance, it recognized that the means of exercising one’s freedom of speech (e.g., money, the corporate form) must be protected if the right to free speech is to be protected; it understood that requiring a corporation to speak through a separate legal entity that is separately funded is a denial of the corporation’s right to speak as is conditioning the right on compliance with complex regulations (A is A); it rejected as irrelevant the fact that many of the Founders apparently disliked or didn’t trust corporations and the fact that the “media” that existed in the founding era consisted of small newspapers and pamplets, rather than gigantic corporations. As Chief Justice Roberts put it in his concurrence, “the First Amendment protects more than the individual on a soapbox and the lonely pamphleteer.” (Remember Rockwell’s “Four Freedoms” painting, with freedom of expression represented by a humble looking man standing in a town meeting with his hat in his hand? That is the left’s view of free speech. Speak as much as you want, as long as it won’t affect anything).

In sum, Citizen’s United is not just a very good campaign finance decision, it is a very good First Amendment decision (in my view, one of the best ever). It gives us a great deal to use on many fronts, and we will use it all to good effect.

Steve Simpson also wrote an op-ed on the case for Pajamas Media: Protecting the Marketplace of Ideas. It’s a good overview and analysis of the case.

Also, Julian Sanchez wrote a biting analysis of the practical implications of the common leftist view that corporations shouldn’t have the right to free speech because they’re legal fictions rather than real persons. He imagines what would happen if we accepted that view fully:

Having dispensed with the repellent doctrine of corporate personhood, we can happily declare that journalists enjoy full freedom of the press … as long as they don’t plan on using the resources of the New York Times Company or Random House or Comcast, which as mere legal fictions can be barred from using their property to circulate unpatriotic ideas. You’re free to practice your religion without interference — but if it’s an unpopular one, well, let’s hope you don’t expect to send your kids to a religious school or build a church or something, because those tend to involve incorporating. A woman’s right to choose is sacrosanct, but since clinics and hospitals are mere corporations with no such protection, she’d better hope she knows a doctor who makes house calls. Fill in your own scenarios, it’s easy.

That’s a wonderful reductio ad absurdum for precisely the reason identified by Steve Simpson said in his Pajamas Media op-ed:

Corporations are groups of individuals and have the same rights to speak as the individuals who make them up, no more, no less. The fact that state laws affect corporate status cannot be a basis for regulating them, any more than it could be a basis for deciding that married couples, partnerships, or membership organizations are not allowed to speak. Nor can it matter that any group’s views may not “correlate” with the views of the public. The First Amendment exists to protect dissent. No one ever wishes to limit speech with which they agree.

After so many years of political disaster, I’m enjoying these few rays of political sunshine.

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