Activism in Defense of Free Speech is No Vice

Bad Supreme Court precedent can and should be ignored

Next Wednesday the U.S. Supreme Court will hear a rare second round of oral arguments in the case of Citizens United v. Federal Election Commission. At issue is the documentary Hillary: The Movie, which was produced by the conservative group Citizens United and intended for distribution before the 2008 elections. As Justice Stephen Breyer noted during the first round of arguments back in March, the film "is not a musical comedy." It's a 90-minute political harangue attacking Clinton's ideas and character. In other words, it's exactly the sort of controversial political speech the First Amendment was written and ratified to protect.

Yet under the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold Act), which bars corporations and non-profit organizations from sponsoring "any broadcast, cable, or satellite communication" that mentions a candidate in a federal campaign within 30 days of a primary or 60 days of a general election, Citizens United was forbidden from using the film to express the political views of its members and supporters. So it's a welcome sign indeed that the Court wants to subject this noxious law to some additional scrutiny.

But not everyone supports the Court's desire to take a second look. In an article published earlier this month, New York Times columnist and editorial board member Adam Cohen essentially declared that the Court has a duty to shirk the First Amendment in favor of campaign finance legislation. "If the conservative justices strike down the ban," Cohen wrote, they "would be reading rights into the Constitution that are not expressly there, since the Constitution never mentions corporations or their right to speak. And they would be overturning the court's own precedents."

Along similar lines, the progressive Constitutional Accountability Center, which filed a friend of the court brief urging the Court to uphold McCain-Feingold, recently argued on its blog that, "The Court's decision to re-hear and broaden the scope of this case, coupled with the possibility that the Court will overturn key precedents and strike down a century's worth of campaign finance regulation, suggests conservative judicial activism and hypocrisy."

Here's the trouble with those claims: There's nothing sacrosanct about bad precedent or lousy legislation. In fact, it's the Court's basic responsibility to strike down those laws and precedents that run afoul of the Constitution—regardless of how long they've been on the books. Remember that the Court's notorious ruling in Plessy v. Ferguson (1896), which upheld the racist doctrine of "separate but equal," stood for nearly six decades before it was voided by Brown v. Board of Education (1954). Sometimes "the court's own precedents" simply deserve to be nullified.

Moreover, as the libertarian Institute for Justice argues in the friend of the court brief (PDF) it submitted in the case, "every incremental advance in campaign-finance laws has laid the foundation for the next advance, with the result that today's 'alternative avenue of communication' inevitably becomes tomorrow's loophole." For instance, we've seen a steady expansion from laws limiting campaign contributions to laws aimed at removing the "distorting effects" of corporate wealth.

In fact, as Deputy Solicitor General Malcom Stewart was forced to admit during the first set of oral arguments, there's nothing in the current campaign finance regime to stop the government from extending its ban on corporate speech to include books and the Internet. Indeed, as the Supreme Court observed in 2003's McConnell v. Federal Election Commission (one of the precedents up for review next week), the current exemption from these restrictions enjoyed by media corporations was a "legislative choice," meaning that lawmakers might just as easily make the "choice" to treat media corporations with less respect the next time around. So much for that marketplace of ideas we've heard so much about.

As for Cohen's argument that corporations don't have a "right to speak," bear in mind that most newspapers and other news organizations also happen to be corporations. Surely the First Amendment applies to them? Yet following Cohen's logic to its conclusion, there's nothing to prevent the government from interfering with the content of an op-ed (or a cable news show) in the run-up to a federal election. They may call themselves "the press," but why should News Corporation or the New York Times Company get to spend their evil corporate money with impunity?

So what should the Supreme Court do here? In a 1789 speech advocating the addition of the Bill of Rights to the Constitution, James Madison famously described the judiciary as "the guardians of those rights…an impenetrable bulwark against every assumption of power in the legislative or executive." By defending the First Amendment against the creeping depredations of so-called campaign finance reform, the Supreme Court will be doing its constitutional duty.

Damon W. Root is an associate editor at Reason magazine.