Antonin Scalia vs. John Paul Stevens
Counting the majority opinion and the various partial concurrences and dissents, today's landmark First Amendment decision in Citizens United v. Federal Election Commission clocks in a hefty 183-pages. But one thing that jumped right out while reading the dissent (it's also a concurrence, in parts) written by Justice John Paul Stevens and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, is Stevens' angry tone. He calls the idea that the First Amendment forbids distinctions between individuals and individuals organized as a corporation "a glittering generality" with no foundation in the law, and later declares, "Under the majority's view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech." Well!
But most significantly, Stevens accuses the majority of making "only a perfunctory attempt to ground its analysis in the principles or understandings of those who drafted and ratified the Amendment." Stevens even cites the influential legal conservative Judge Robert Bork to impugn the majority's originalist credentials. That's not something you see everyday.
Justice Antonin Scalia, however, isn't having it:
I write separately to address JUSTICE STEVENS' discussion of "Original Understandings"… This section of [Stevens'] dissent purports to show that today's decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why "the freedom of speech" that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored….
The [First] Amendment is written in terms of "speech," not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals--and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is "speech" covered by the First Amendment. No one says otherwise.
