Censorship

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

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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.

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54 responses to “It Turns Out the First Amendment Prohibits Congress From Punishing People for Their Political Speech

  1. Does it bother anyone besides me that what should be obvious rulings are always 5-4? Is there any branch of the government that isn’t populated with almost wholly by assholes?

    1. No you are not the only one. It is pretty disturbing to think that there are four supreme court justices who think the 1st Amendment only mean what it says when they decide that it is in the best interests of good government. And it is even more disturbing to think that we have a President who no doubt agrees with them.

      1. Of course, there is the risk that this line of legal reasoning could go too far. If they were to decide that people are also people, and therefor entitled to freedom of expression, well, the consequences could be dire. sex and the city 2 download | step up 3d download

    2. (Also, does it bother anyone but me that consistently English appears to be my second language?)

  2. I also think that our artificial friends have been oppressed for long enough!

    How long before our modest, restrained court also recognizes the corporate right to voting, and will it be Senatorial (one corp, one vote) or Representative (based, maybe, on market cap)?

    And why deny corporations the right to run for office or become judges? I look forward to Rep. GoldmanSachs and Justice Union Local 242.

    Of course, there is the risk that this line of legal reasoning could go too far. If they were to decide that people are also people, and therefor entitled to freedom of expression, well, the consequences could be dire. Thank goodness that they, at least for now, seem (via the Bong Hits 4 Jesus case) to be properly originalist in this matter.

    1. Be careful opposing the right of association.

      1. I’m more concerned with the implications of corporations – a creation of government, regulated by government, remember – becoming even more politically active than they are. Think about more than just direct line implications.

        What happens when shareholder lawsuits start popping up against execs for not doing their ficundiary duty by not trying hard enough to buy legislation? A lot of folks already bitch about the evil Soros menace, and he’s actually a U.S. citizen. Pray-tell, how are you going to keep foreign money out of politics now? Arguably, this leak is already there, with so many corporations owned by offshore holds. (foreign cash isn’t that big a deal to me, but it is to a lot of people applauding this.)

        I really don’t think people are thinking things through.

        1. “ficundiary”? Wtf?

          At any rate, since corporations are made up of actual individual human beings, and government has a massive amount of control over what those human beings are allowed to do with their time & talents then it seems pretty insane to think that they wouldn’t do everything they can to make sure that governmental control doesn’t constantly harm them or put their company out of business – thereby ruining the livelihoods of those individual human beings.

          Besides which, people have the right to freely associate with each other, last I checked, and spend their money petitioning the government.

          I suspect it is in fact you who hsa not thought things through here.

    2. Actually, Jamie writes that in jest, but it’s now not too far from reality.

      For instance, suppose GE (or Ford or the King of Saudi Arabia) comes up to someone and says, “We’ll provide you with $10M in advertising to run for office. But you have to tow our line, or you won’t be re-elected.

      Then, isn’t that person effectively the duly elected representive of GE (or Ford or Saudi Arabai)?

      This ruling is very, very frightening!

    3. Of course, there is the risk that this line of legal reasoning could go too far. If they were to decide that people are also people, and therefor entitled to freedom of expression, well, the consequences could be dire.
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  3. Instead of prolonging this chilling effect by issuing another ruling that narrows BCRA’s speech restrictions with uncertain practical consequences

    Yes, and the opinion recognized this problem:

    In fact, after this Court in WRTL [the 2007 Wisconsin Right to Life case] adopted an objective “appeal to vote” test for determining whether a communication was the functional equivalent of express advocacy, the FEC adopted a two-part, 11-factor balancing test to implement WRTL’s ruling.

    and goes on to explain how this uncertainty has a chilling effect.

  4. I don’t have a dog in this fight, but I do have a serious question for those strongly in favor of free speech for corporations:

    Why exactly are corporations people in the context of the first amendment?

    I hear the argument that corporations are made up of people and that restrictions would deny them their voice, but those people already have individual voices. Why would they need (and deserve) another one?

    Basically — isn’t that double-dipping?

    I’m certainly missing something, because the Supreme Court thinks it’s obvious, but what?

    1. I think you’ve the focus backwards.

      The issue doesn’t have anything to do with what the nature of a corporation is or isn’t.

      The issue is that the Constition prohibits the federal government from interefering in freedom of speech.

      The nature of the entity doing the talking doesn’t change that.

      1. And the fact that you have to use the word “entity” as opposed to “person” to make your case is significant.

        I’m skeptical about any rights for “entities” which aren’t natural persons, but also fearful of any curtailing of speech rights.

        1. Remove the word “entity”. A corporation is a group of people, is it not? The corporation has no right to free speech. The people who run it and control its resources do. The corporation isn’t spending any money on anything – the CEO and board of directors are. We just use the word “corporation” as shorthand for the group of people involved. The fact of the matter is, we’re ALWAYS talking about individuals. And when you cut down the right of people to freely assemble & organize into any kind of structure (including that of a corporation) and the right of those same people to use their resources to support whatever kind of speech they want, there should be no question that you are violating the 1st Amendment.

    2. I hear the argument that corporations are made up of people and that restrictions would deny them their voice, but those people already have individual voices. Why would they need (and deserve) another one?

      Take NAACP v. Alabama and NAACP v. Button as examples. Why did these people who were pushing challenges to segregation want to remain secret, and be able to donate money for one purpose without having their entire life savings at risk through punitive government action?

    3. I don’t think you’re missing anything. Funny how people seem to want to give the same legal weight to a construct as they do to a real, live individual. And to think I once thought libertarians were about liberty.

      1. “Why would they need (and deserve) another one?”

        Yeah, you should only get to talk once. It’s like voting, you can’t vote over and over. If everyone got to speak as much as they wanted, what on earth would happen to democracy?

    4. The 1st Amendment doesn’t just protect freedom of speech. It also protects freedom of the press.

      In the late 20th century, a concerted effort was made to create a mythology that “the press” is somehow synonymous with “journalism as taught at Columbia”. And it’s not. “The press” is actually synonymous with “any group of assholes banded together to provide any information or opinion content whatsoever to the public”.

      The state has no right to declare what organizations are and are not the press. If the corporation that publishes the New York Times can engage in political speech, so can every other corporation. The SCOTUS specifically endorsed this argument in its ruling today.

  5. I just hear that Sen Chuck Schumer wants to hold Congressional hearings on the impact of the Supreme Court decision.

    WTF?

    I think these Dems are literally losing their minds – not that they ever had all that much grey matter to work with in the first place.

  6. Predictably, Mr. Obama called the decision, “A victory for Big Oil” or some such knee-jerk lefty utterance.

  7. Most people like the idea of ‘free’ but don’t actually like it when they see it. Freedom can be chaotic and some people, or corporations, or unions, might say something you don’t like. Suck it up buttercup!

    1. Sadly, many people’s definition of free is “I do whatever I want, you do whatever I say.”

  8. My copy of the Constitution says:

    “Congress shall make no law abridging the freedom of speech or of the press. . . .”

    Does yours have something in it about corporations?

  9. Isn’t a church a “non-profit interest group”? Doesn’t this mean that churches can now actively support candidates? It is weird organizations that counsel people on every other aspect of their lives were somehow not supposed to discuss politics and voting.

    1. Churches can actively support candidates, but doing so risks their tax-exempt status. You’re asking if requiring overtly political churches to pay the same taxes as other entities constitutes abridging their freedom of speech.

      1. It is a separate question: do overtly political groups need to pay taxes?

        I suppose if they do, PACs and political campaigns themselves should pay taxes on donations. If they do not, then I fail to see what distinguishes a church from any other “non-profit interest group”.

        1. “do overtly political groups need to pay taxes?”

          Yes. Most Non-Profits are in fact expected to pay taxes, the only exception are 501-c3 non-profits,such as religious orgainazation, arts groups, educational groups,etc.,which are not required to pay taxes, but also are not allowed per IRS regulation to engage in activities concidered to be electioneering.

          If the IRS regulation regarding such organiztions were actually enforced there would be quite a few “churches” that would lose their tax exemption and have to pay their fair share to support the public infrastructure and resources that their members freely use effectively stealing from non-members who pay extra for police, fire, and other public services.

      2. Tax-exempt status applies to donors, not to the church or the charitable organization itself. The question of whether an organization pays taxes is different form whether benefactors get to deduct their donations from their taxable income.

        Non-profit corporations (non-profit designation comes from the state under which the corporation is chartered) do not pay income taxes as they have no profits to tax. They still have to pay property taxes and numerous other local levies.

        Churches are generally exempt from paying property taxes on properties used for worship or educational purposes.

        1. To extend this.

          Habitat for Humanity and the ACLU are both non-profit corporations. Neither generates anything that the IRS recognizes as “profits” and hence neither pays corporate income tax. They do however have to pay property taxes on any property they own.

          If you make a donation to Habitat for Humanity, you can deduct that donation on Schedule A of your federal income taxt return. This is due to the fact that HfH is devoted to charitable works and has taken the time and expense to get non-profit status from the IRS, something completely separate from its status as a not-for-profit corporation.

          On the other hand if you make donation to the ACLU you cannot deduct it as the ACLU is involved in lobbying and political activism. The IRS does not allow such deductions for such donations.

          See also:

          Ducks Unlimited – donations deductible
          NRA – donations not deductible

          The NRA, however has set up a separate foundation expressly for its safety and other gun training programs and donations to it aredeductible.

    2. I have no problem with churches actively and overtly supporting candidates and issues, as long as they pay taxes like other corporations and institutions.

      1. Should political campaigns, medical associations, NORML, etc also pay taxes? If not, what distinguishes a church from these groups?

        1. You can’t make tax-deductible donations to organizations like political campaigns, medical associations, NORML etc.

          As non-profits they still have to pay property taxes and some other local taxes. Churches are generally excempt from property taxes, though property owned for other than worship and educational uses, like a church-owned busisness whose profits go to charitable uses, is generally not.

  10. http://www.dailykos.com/story/…..penditures

    Scroll down to see the Kossacks suggesting Obama repeat FDR’s attempt to pack the court.

  11. So, does the decision apply to US corporations, or to all of them, even transnationals?

    I guess it’s cool though. Honda, Siemens, and BP probably SHOULD have more of a say in who gets to represent my interests on the Hill. I’d probably fuck the decision up completely.

    1. Many foreign companies have wholly owned U.S. Corporations, so by default they are (according to the present Supreme Court) U.S. Citizens and entitled to such rights as citizens are granted.

      The problem really isn’t this particular decision as it is just an extension of an what I think is an invalid philosophy that suggests that dollars are to equivalent votes and that organizing for redress of political greivance is the same as organizing for economic activity. In my view niether is equivalent.

  12. I’d guess many of the people bemoaning today’s decision have no problem with Big Pharma’s 80 billion gift to help get the healthcarte bill passed.

    1. That’s different! That was, uh, guilt money, because they know they did wrong, now they’re sorry and want to do the right thing.

  13. Now I am left wondering if this decision will affect the ability of tobacco companies to advertise.

    1. Don’t get crazy now. That would lead to Chaos and Anarchy

  14. The argument that if you already have “a voice” you don’t need any others is backwards: law isn’t about what you are allowed to do, it’s what someone *isn’t* going to allow you to do. Without someone exerting force to the contrary, you can have as many “voices” as you care to: your own, or yours aggregated with others in a group like a “church”, a “corporation”, etc. The question isn’t whether you have a voice, the question is about the initiation of force that it takes to take away any of your choices of voice.

    Put another way: if it’s ok that you only have one voice and all the rest are taken away by voice, then why wouldn’t it be perfectly ok to take away your *personal* voice on the logic that you still have your “corporation voice”? As long as corporations (or churches, or boys’s clubs, pick your favorite grouping) has a voice, you don’t need your personal voice, right? I don’t think anyone vaguely “libertarian” would be happy with that though, right? But it’s the same logic.

  15. The constitution is a document limiting the powers of government. The First Amendment clarifies such limits, reserving such freedoms to the people. The people are those on whose authority government serves.
    This Court assumes that corporations, business, labor, religious and political organizations, have this authority as well.
    People who are members of any of these groups have no power to influence those who control their organization or direct how money should be used. Press, speech, assembly, petition and religious beliefs are outside the powers of government because people cannot be prevented from thinking. speaking, publishing, or believing the most idiotic heinous ignorant delusions or the most factual or truthful observations. Politicians are those who will use any ides and act on any idea useful to their ambitions.
    That is why such subjects withheld from government must remain with the people. Government must not be permitted to dispense beliefs, morality or ethics.

    The law is a ass. The court is privy to the law.

  16. truth,,,,obama people have no idea of the extent to which they have to be gulled in order to be led.”
    “The size of the lie is a definite factor in causing it to be believed, for the vast masses of the nation are in the depths of their hearts more easily deceived than they are consciously and intentionally bad. The primitive simplicity of their minds renders them a more easy prey to a big lie than a small one, for they themselves often tell little lies but would be ashamed to tell a big one.”
    “All propaganda must be so popular and on such an intellectual level, that even the most stupid of those towards whom it is directed will understand it. Therefore, the intellectual level of the propaganda must be lower the larger the number of people who are to be influenced by it.”
    “Through clever and constant application of propaganda, people can be made to see paradise as hell, and also the other way around, to consider the most wretched sort of life as paradise.”pelosi don’t see much future for the Americans … it’s a decayed country. And they have their racial problem, and the problem of social inequalities …obama feelings against Americanism are feelings of hatred and deep repugnance … everything about the behaviour of American society reveals that it’s half Judaised, and the other half negrified. How can one expect a State like that to hold TOGTHER.They include the angry left wing bloggers who spread vicious lies and half-truths about their political adversaries… Those lies are then repeated by the duplicitous left wing media outlets who “discuss” the nonsense on air as if it has merit? The media’s justification is apparently “because it’s out there”, truth be damned. STOP THIS COMMUNIST OBAMA ,GOD HELP US ALL .THE COMMANDER ((GOD OPEN YOUR EYES)) stop the communist obama & pelosi.((open you eyes)) ,the commander

  17. truth,,,,obama people have no idea of the extent to which they have to be gulled in order to be led.”
    “The size of the lie is a definite factor in causing it to be believed, for the vast masses of the nation are in the depths of their hearts more easily deceived than they are consciously and intentionally bad. The primitive simplicity of their minds renders them a more easy prey to a big lie than a small one, for they themselves often tell little lies but would be ashamed to tell a big one.”
    “All propaganda must be so popular and on such an intellectual level, that even the most stupid of those towards whom it is directed will understand it. Therefore, the intellectual level of the propaganda must be lower the larger the number of people who are to be influenced by it.”
    “Through clever and constant application of propaganda, people can be made to see paradise as hell, and also the other way around, to consider the most wretched sort of life as paradise.”pelosi don’t see much future for the Americans … it’s a decayed country. And they have their racial problem, and the problem of social inequalities …obama feelings against Americanism are feelings of hatred and deep repugnance … everything about the behaviour of American society reveals that it’s half Judaised, and the other half negrified. How can one expect a State like that to hold TOGTHER.They include the angry left wing bloggers who spread vicious lies and half-truths about their political adversaries… Those lies are then repeated by the duplicitous left wing media outlets who “discuss” the nonsense on air as if it has merit? The media’s justification is apparently “because it’s out there”, truth be damned. STOP THIS COMMUNIST OBAMA ,GOD HELP US ALL .THE COMMANDER ((GOD OPEN YOUR EYES)) stop the communist obama & pelosi.((open you eyes)) ,the commander

  18. truth,,,,obama people have no idea of the extent to which they have to be gulled in order to be led.”
    “The size of the lie is a definite factor in causing it to be believed, for the vast masses of the nation are in the depths of their hearts more easily deceived than they are consciously and intentionally bad. The primitive simplicity of their minds renders them a more easy prey to a big lie than a small one, for they themselves often tell little lies but would be ashamed to tell a big one.”
    “All propaganda must be so popular and on such an intellectual level, that even the most stupid of those towards whom it is directed will understand it. Therefore, the intellectual level of the propaganda must be lower the larger the number of people who are to be influenced by it.”
    “Through clever and constant application of propaganda, people can be made to see paradise as hell, and also the other way around, to consider the most wretched sort of life as paradise.”pelosi don’t see much future for the Americans … it’s a decayed country. And they have their racial problem, and the problem of social inequalities …obama feelings against Americanism are feelings of hatred and deep repugnance … everything about the behaviour of American society reveals that it’s half Judaised, and the other half negrified. How can one expect a State like that to hold TOGTHER.They include the angry left wing bloggers who spread vicious lies and half-truths about their political adversaries… Those lies are then repeated by the duplicitous left wing media outlets who “discuss” the nonsense on air as if it has merit? The media’s justification is apparently “because it’s out there”, truth be damned. STOP THIS COMMUNIST OBAMA ,GOD HELP US ALL .THE COMMANDER ((GOD OPEN YOUR EYES)) stop the communist obama & pelosi.((open you eyes)) ,the commander

  19. I think this ruling is a big win for America.

    The corporations discussed by the court include organizations of people who unite behind a political theme. They unite to pool resources, so that they can have a voice in the political debate.

    Whereas, a ‘Mr. Soros’ can contribute millions of dollars (thereby gaining the ability to simply call and speak directly to a politician) common folk must join an organization with like views and donate whatever they can. That organizatioin can then send a representative with a membership roster, demonstrating the breadth of support for a particular topic; instead of each member buying a airplane ticket and taking vacation time – in the HOPE that their Congressmen will deign to meet them as an individual voter.

    Face it, big business entities can get their points across to the politicians on the golf course.

    BTW, I am not anti-business; big, small or in-between. America progresses and thrives by business. Welfare recipients do not advance any nation on earth, except when they struggle to advance themselves and their children.

  20. consider the most wretched sort of life as paradise

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  22. I mean, er, awesome thoughts, Liz – I need some time to think about this!

  23. Intelligence agents arrested the president of Venezuela’s only remaining independent television station on Thursday, leading to concerns that freedom of speech …

  24. The problem really isn’t this particular decision as it is just an extension of an what I think is an invalid philosophy that suggests that dollars are to equivalent votes and that organizing for redress of political greivance is the same as organizing for economic activity.
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  25. I think some of this reasoning holds water, “The First Amendment’s protections do not depend on the speaker’s “financial ability to engage in public discussion.” Just cause you can spend $ to get your msg out doesn’t mean anyone will like you, look at celebs, i.e. Kayne West. Go to the web for unbiased news! –cyber defender

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