Free Speech, Democracy, and Citizens United

NPR's This American Life recently discussed corporations and the First Amendment in the wake of the Supreme Court's Citizens United decision. Among the legal experts that the show quoted was Pacific Legal Foundation attorney Timothy Sandefur, who has a great post inspired by his appearance:

After my comments [on This American Life], a law professor is quoted saying that "conservatives" have "turned the First Amendment into democracy's foe." I think this is a very revealing comment, for two reasons.

First, the view that the government should censor the speech of people who do business in the form of corporations is rooted in the idea that free speech is an instrumental good that serves "democracy." That is the Progressivist interpretation that sees "democracy" as the central value of the Constitution, and sees individual liberty as a privilege that is created by the government in order to promote "democracy." This is the opposite of the view of the Constitution's authors: they believed that the fundamental constitutional value was liberty, and that democracy existed only to serve liberty. That's why the first sentence of the Constitution declares that liberty is a "Blessing," and why the Constitution goes on to impose serious limits on democracy. In their view, speech is protected because individuals have the right to express themselves--not because speech has a relationship to democracy. Obviously they understood that free expression was good for democratic decision-making, but their primary concern was protecting the rights of individuals, not with preserving some vague conception of "democratic society."

Read the whole thing here.