It Turns Out the First Amendment Prohibits Congress From Punishing People for Their Political Speech


The Supreme Court's ruling in Citizens United, which Matt Welch noted this morning, is a decisive victory for First Amendment rights, much more dramatic than most people expected when this case got started. In overturning Austin v. Michigan Chamber of Commerce, a 1990 decision upholding a state law that prohibited corporations from spending money on election-related messages, the Court rejected the very notion that the First Amendment allows the government to discriminate against speech by groups of people organized as corporations. "We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers," writes Justice Anthony Kennedy in the majority opinion.

The five-justice majority notes that Austin's rationale—that the government has a legitimate interest in preventing "the corrosive and distorting effects of immense aggregations of wealth…that have little or no correlation to the public's support for the corporation's political ideas"—also applies to wealthy individuals and to media corporations, since they too enjoy "immense aggregations of wealth" that do not necessarily reflect the public's support for their ideas. Media businesses such as Time-Warner and the New York Times Company are exempt from the Bipartisan Campaign Reform Act's ban on "electioneering communications," but by Austin's logic they need not be:

The First Amendment's protections do not depend on the speaker's "financial ability to engage in public discussion."…

It is irrelevant for purposes of the First Amendment that corporate funds may "have little or no correlation to the public's support for the corporation's political ideas." All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker's ideas….

Under the Government's reasoning, wealthy media corporations could have their voices diminished to put them on par with other media entities. There is no precedent for permitting this under the First Amendment….[Furthermore,] there is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not.

The Court also rejected the argument that preventing corporations (including nonprofit interest groups) from airing messages that refer to political candidates close to elections is necessary to prevent "corruption or the appearance of corruption" (the rationale for upholding limits on campaign contributions):

The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt…Reliance on a "generic favoritism or influence theory…is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle." The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.

That last point is debatable, and I wish the Court would stop accepting the idea that predictions about how voters will perceive this or that aspect of political activity can justify restrictions on speech (as they supposedly do in the case of campaign contributions). But the opinion is refreshingly candid about what is going on when the government says corporations may not talk about politics at election time:

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election….

If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.

Because of these threatened penalties, the Court notes, "these onerous restrictions…function as the equivalent of prior restraint," effectively requiring people to beg the Federal Election Commission's permission before daring to speak. The uncertainty about what's covered by the ban has a chilling effect on speech, the Court notes, leading people to censor themselves rather than risk fines or jail. That is what happened with the anti–Hillary Clinton movie at the center of this case, which Citizens United never advertised or distributed in the way it had planned because it worried that the FEC would consider it a forbidden "electioneering communication" (which it did). Instead of prolonging this chilling effect by issuing another ruling that narrows BCRA's speech restrictions with uncertain practical consequences, the Court chose to throw out the restrictions entirely, along with the misbegotten, dangerous logic underlying them.

Brian Doherty noted Public Citizen's reaction to Citizens United earlier today. More Reason coverage of the case here.