On January 21st, the United States Supreme Court handed down its decision in Citizens United, following oral argument in March, and re-argument in September. The decision is controversial (sometimes unfairly through misunderstanding), but is a welcome recognition of First Amendment principles.
I have mentioned the case at least once before, after the original oral argument, in a post entitled,”From Cato: Citizens United (Hillary: the Movie) v. Federal Election Commission.” I’ll offer some remarks on the decision in this post, and will consider local matters — apart from the federal statute under review in Citizens United (§203 of the Bipartisan Campaign Reform Act of 2002, 2 U. S. C. §441b) — in another post.
The full text of the decision, including the opinion, concurring and dissenting opinions, is available online. Three quick remarks: 1. I have read all these opinions. 2. They’re lengthy — sadly, modern court opinions often amount to scores of pages, making them daunting and less commonly read than they should be. 3. The syllabus at the front of the opinion is not itself an opinion; it’s just there as a summary from the Reporter of Decisions for readers’ convenience, and has no other purpose or effect.
What was the issue before the court?
In early 2008, Citizens United released a film entitled Hillary: The Movie. It’s was 90-minute documentary about (then) Senator Clinton, at the time a candidate for the 2008 Democratic 2008 presidential nomination. The documentary expressly mentioned Senator Clinton, and offered interviews with pundits who were mostly critical of Senator Clinton. The film was released in theaters and on DVD, and Citizens United sought to bring it to video on demand.
Citizens United sought to distribute their documentary via video on demand within 30 days of the 2008 primary elections. Yet, CU was concerned that their film, and advertising about it, would be banned by a provisions of the Bipartisan Campaign Reform Act’s ban on independent, but corporately funded, expenditures. They sought declaratory and injunctive relief against the Federal Elections Commission, to prevent the FEC from seeking criminal and civil penalties for showing their documentary.
What’s the decision of the case? Here it is —
The judgment of the District Court is reversed with respect to the constitutionality of 2 U. S. C. §441b’s restrictions on corporate independent expenditures. The judgment is affirmed with respect to BCRA’s disclaimer and disclosure requirements. The case is remanded for further proceedings consistent with this opinion.
Why decide this way?
Some members of the public might consider Hillary [the movie that Citizens United made] to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation’s course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make. “The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.”
A few remarks —
- Constitutional Provisions and Statutory Regulations. The question here is whether a constitutional provision protects a film-maker’s speech rights comprehensively, or whether a federal law may prevent the exercise of a constitutional right. It is, as the opinion of the court notes, a settled matter of our law — of liberty itself — that
political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.”
Note: the decision in Citizens United permits a continuing federal requirement on the disclosure of expenditures toward political speech; the decision, however, recognizes the right of citizens to political speech, not to be infringed during a campaign.
- People Shouldn’t Lose Their Speech Rights Because They Band Together to be Heard. One should note that Citizens United wasn’t simply an ‘organization,’ etc.: it was a group of real people, wanting to express themselves. (In the scheme of things, it was far smaller than many politically active unions or corporations, for example. The majority opinion notes that “Citizens United is a nonprofit corporation an annual budget of about $12 million. Most of its funds are from donations by individuals; but, in addition, it accepts a small portion of its funds from for-profit corporations.)
Ilya Somin, in a post entitled, “Corporate Rights and Property Rights are Human Rights: Why it’s a Mistake to Conflate a Right with the Means Used to Exercise it,” observes that
In my last post, I explained why it’s a mistake to deny free speech rights to people organized as corporations on the grounds that corporations aren’t “real people.” It’s true, of course, that a corporation is not a person. But the people who own and operate it are. “Corporate speech” is really just speech by people using the corporate form.
The mistake here is one we see in other contexts. Critics often denigrate rights by conflating them with the means used to exercise them. For example, a standard rhetorical attack on property rights is the claim that property rights aren’t really “human rights.” Property has no rights, it is said. Its true of course that property as such is not entitled to any rights. However, property rights actually belong to the people who own the property, not the physical objects themselves.
- Party Affiliations. I understand, but do not share, a partisan reaction to this decision. I am neither a Republican nor a Democrat. There’s consternation among many on the left about this decision, but I think that concern will soon pass. The left will find that this decision will permit the exercise of political speech in support of their views just as much as of those on the right.
- Justice Stevens on Foreign Donations. The decision in Citizens United did not overturn a ban on foreign donations: “We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process.” The decision left 2 U.S.C. section 441e, banning contributions and expenditures from foreign nationals, was untouched.
- President Obama, Justice Alito. There’s so much fuss over what the president said about the court, and how one of the justices responded, during the state of the union address. I don’t think it matters much. The president can say what he wants, and I don’t care if someone in the room mouths something in reply. Concerns about decorum and what’s proper, about this matter, seem overwrought to me. Presidents didn’t always deliver the state of the union in person, and justices haven’t always attended the speech when it’s been delivered before Congress.
I believe that the decision was a good one; campaign finance laws, of so many kinds, should not abrogate citizens’ political speech rights. The First Amendment is more than a policy proposal; it’s a recognition of fundamental and natural human rights.
Is there a local angle in all this? Yes. I don’t mean the federal statutes involved in the Citizens United case, but otherwise, in enforcement of election & campaign regulations, and equal treatment of incumbents and dissenters.
Sadly, beautiful Whitewater, Wisconsin (city and town) have become a disgusting, dank swamp of favoritism for incumbents, political conflicts of interest, supported by a lapdog and conflict-riddled newspaper, and sometimes aided by laughable, erroneous legal opinions of scarcely third-rate quality. Seldom has any town in America been more ill-served and represented by its self-professed public servants, visionary bureaucrats, and community treasures.
No law in our fine state, no law of our beautiful republic, has made any good man in our city better; neither has either state or federal law kept any man in the city from the lies, exaggerations, errors, arrogance, and vanity to which he was otherwise lamentably inclined.
We cannot regulate away this foul pack of mediocrities and their sycophants. They are here, and conduct themselves wrongly and stupidly, despite all the legislative efforts from Madison and Washington. What they don’t like, they ignore or distort in ways that would be shameful even to an ordinary child.
The answer to this sad affliction upon us is not restriction and regulation, but speech.
I am practical in all this; change will come slowly. I know very well that change will not come from those shameful and selfish few who feast on the city now. ‘Bad’ does not get better, but only worse. They will not improve, except in a better quality of lies and excuses, so much as they are able. Yet even the best lie is still easily refuted and exposed, to be held to account and contempt.
That’s the benefit of speech — outside a small collection of smug, selfish back-patters who truly promote only themselves, others see the truth, and embrace the American tradition of open, honest government over the emptiness of mediocre and mendacious management. Exercise of those speech rights is so very American, and part of the happy and invigorating tradition that is the very stuff of our extraordinary country’s greatness.