'The First Amendment Cannot Be Encroached Upon for Naught'


Today the U.S. Court of Appeals for the D.C. Circuit unanimously struck down restrictions on contributions to independent groups that spend money on election-related speech. The case was brought by the Institute for Justice and the Center for Competitive Politics on behalf  of SpeechNow.org, a group that wanted to sponsor messages opposing candidates who support restrictions on political speech and supporting candidates who oppose them. The twist was that SpeechNow is not organized as a corporation, and it does not take corporate contributions; hence the anti-corruption rationale for restricting political speech by corporations did not apply. The group nevertheless would have had to register as a "political committee," with all the attendant reporting requirements and contribution limits, simply to pool its individual donors' money and use it to communicate their opinions. Once the Supreme Court ruled two months ago, in Citizens United v. FEC, that even corporations (including nonprofit interest groups) cannot be prevented from saying whatever they want about politicians whenever they want, it was pretty clear that SpeechNow would win its case, which was aimed at pushing through a loophole that is no longer necessary.

Citizens United "simplifies the task of weighing the First Amendment interests implicated by contributions to SpeechNow," Chief Judge David Sentelle wrote for the unanimous court. "The Court held that the government has no anti-corruption interest in limiting contributions to an independent expenditure group….The First Amendment cannot be encroached upon for naught." The court did uphold the Federal Election Commission's  requirement that political committees disclose their donors, which SpeechNow had said it planned to do anyway.

I.J. attorney Steve Simpson comments: "This is a tremendous victory for free speech. This decision ensures that all Americans can band together to make their voices heard during elections." SpeechNow President David Keating adds, "Thanks to this ruling, citizens' groups across the country—no matter what issues they care about—finally have the freedom to hold politicians accountable."

The D.C. Circuit's ruling is here (PDF). I discussed the case in a 2007 column.

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  1. Heck, Reason Magazine has election-related speech. If this ruling had gone the other way, it would have restricted donations to magazines of opinion. Kudos to the DC court.

  2. The First Amendment cannot be encroached upon for naught.

    This implies that in can be encroached upon for things the judge finds agreeable.

    What would have been wrong with:

    The First Amendment cannot be encroached upon, period. Its pretty fucking clear, guys. Don’t make me come off this bench and put this gavel to non-symbolic use upside your head.”

    1. Very good!
      I might suggest “…and put this gavel in the orifice not designed for eating pie, but expelling it.” (we have to say it judiciously)

  3. Congress shall make no law

    Not “not many laws,” not “shall not make unreasonable laws,” not “shall not abridge a person’s right to speech.

    For love of the Man in the Sky, its the easiest of the Amendments to figure out.

    1. “Congress shall make no law …

      That’s why we said “cannot be encroached upon for naught.”

      (Laughs quietly to itself)

    2. I’m pretty absolutist about the 1st amendment, but to play devil’s advocate:

      no law is easy enough. So what about the freedom of speech? Does that particular freedom include the right to incite mass hysteria (shouting fire in a theater)? You have to figure out what that freedom entails, and thus whether money is the same thing as speech.

  4. IJ is da bomb.

      1. I have (what I think is) a funny history related to giving donations to IJ.

        I used to work for the federal government, during which time my nascent libertarianism was ripped from my core to the surface by what I observed while working there.

        They had a program where you could use payroll deductions to make donations to charities. I always tried to give some to local charities that help sick kids. However, one year I noticed that IJ was listed as a charity that could receive funds from the program.

        I immediately updated my giving so that IJ got a sizable chunk. I loved the irony of it.

  5. Cool, I was just thinking that the rich did not have enough of a voice in this country!

    Thank God that those who brought us the financial collapse and bailouts will be able to spend their multimillion dollar performance bonuses to buy the next round of politicians to ensure the next round of deregulation that will lead to the next round of collapses and bailouts and bonuses!

    1. It’s probably not worth it, but…

      The First does not provide an exemption for particularly powerful speakers or disfavored types of speakers or parties. It merely says “no law.”

      Your comments are really beside the point.

      1. You know, in a perfect world, we could ban certain types of speech. Like the hate speech you just spewed that has nothing to add to the conversation and that just disregards rules and principles and law in favor of pure emotion.

        We don’t live in that world, so thankfully, your speech is protected.

        1. In a perfect world no one would say stupid ignorant crap like that, so it would all be a moot point.

      2. Oddly enough, there are tons of laws regulating speech that the courts have not struck down. Strange world.

        1. Enumerate those laws, please. Also include a discussion of laws restricting speech which the courts have struck down on First Amendment grounds, and include statistics. Show your work and include references.

          1. You guys are a tough crowd. Let’s see, I cannot legally:

            – communciate threats
            – sell copyrighted work without permission
            – print libelous information about an individual
            – incite riots

            That’s just off the top of my head. I hope no references are really needed.

            1. Scotch Hamilton is a well-known child molester. He kidnaps children and molests them. After he molests them, he murders them and molests their bodies. This is well known. Shut the fuck up, Scotch.


            2. You forgot treason.

              – communciate threats

              Sure you can. You might go to jail for doing so if you convince the other person that you mean it.

              – sell copyrighted work without permission

              You got us! Since we have IP, all speech restrictions are a go.

              – print libelous information about an individual

              Again, you sure can print it. You might, however, have to pay damages, depending on who the target is and what you say. Truth is a defense.

              – incite riots

              Bad law. If you’re stupid enough to commit a violent crime based on someone else’s say-so, you deserve whatever jail time you get.

            3. No citations; proper work would include chapter and section of the US Code. Missing assigned discussion of free speech laws struck down by the courts, no actual cases cited.

              Fail. Recommend student be reassigned to remedial program.

            4. The fact that sound is coming out of someone’s mouth does not implicate the first amendment. The examples you list do not represent limits on the “right to free speech” because the offenses they represent can be accomplished by other means. Your “right to free speech” doesn’t go any further than your property rights.

              This isn’t the popular conception of freedom of speech, but hell, we’re reading Reason’s blog…

            5. Sorry, Scotch, but you need to first distinguish between being

              (1) prohibited from engaging in speech;

              (2) being held responsible for the consequences of your speech; and

              (3) infringing on other people’s property rights.

              An infringement on freedom of speech involves only the first.

              Carry on.

        2. That there are wrong laws still on the books doesn’t excuse the passage of more.

          The First Amendment is pretty clear. Shall make no law.

          Don’t tell me about this or that law, explain how CU or this case could overcome the “Shall make no law” language, and how you would exempt media from that standard. Everything else you say is merely nothing.

        3. Teh Courts. Knocking down shitheaded speech restrictions, one law at a time.

    2. You are so right. Thank God all those laws were preventing it from happening before Citizens United.

    3. This is excellent performance art.

      It captures, not only the essence, but also the full bore intellectually bankrupt fuckhattery of your typical lefty.

      Cheers, spoofer troll, cheeers!

    4. Are you for real? I hope so, you’ll make a fine puncing bag.

      Just out of curiosity, does your animosity toward the rich include all of the rich? Say, Sean Penn? Al Gore? Trial lawyers? Union bosses?

      1. puncing, bah I meant punching

        1. I thought you meant punting bag.

          1. BOOT!

        2. I thought you meant “poncing.”

  6. This ruling will surely open the floodgates and drown freedom-loving Americans in unnecessary and dangerous corporate rhetoric.

    1. You mean like the corporate rhetoric we already were getting from ABC, CBS, NBC, Fox, CNN, or MSNBC?

      I’m smart enough to recognize when those corporations are being shills. And if I’m smart enough to recognize that, then I can spot other forms and methods of corporate rhetoric from a mile away.

      Just like failing businesses lobby government to regulate and hamper their successful business competitors, so left-liberal elitists lobby government to regulate and hamper their electoral competitors in the marketplace of ideas.

      Holmes and Brandeis would be ashamed of you.

      1. Thank you for your comment.
        A member of our response team will contact you as soon as possible.
        (Adjusts irony meter)

        1. That you don’t recognize Holmes and Brandeis as the trailblazing Supreme Court Justices of First Amendment Freedom of Speech case law only shows your lack of any sort of knowledge upon which to rest a judgment of irony.

          Holmes did get it wrong right after WWI, but he realized his mistakes and changed his tune.

          Go ahead and wow us with lame joke while you’re at it…

  7. I hereby deem “Scotch” to be Hit’n’Run’s new derogatory term for any moron who thinks that economic fascism is the result of freedom of speech.

    You’re such a fucking Scotch, Scotch. Fuck along, now.

  8. Fucking.


    I must remember to make a suitable donation to IJ when I hit that big Powerball jackpot.

  9. Why you pickin’ on me?

    1. Cause you’re gross, mostly.

  10. Good to see that something good happened this week.

    Also: shut the fuck up, Scotch.

  11. By the way guys, I was being serious. I am a libertarian and I think it’s very important that the powerful not have the government interfering with their right to run our lives.

    1. Goddammit, I can’t believe I fell for it. A+ trolling.

    2. I beleive Scotch is either, or is doing an excellent job of impersonating, the legendary left-libertarian, who believes that we are all being oppressed by the businesses who sell us things, and need the kind of freedom that comes with total government control.

      Well, done, Scotch! Stick around.

      1. Will do. I mean, we have got to get this country back to a place where the powerful and rich can do whatever they want without pesky government interference, and then come back to ask the government for a handout when it all falls apart!

        That, my friends, is liberty!

        1. All is well, then.

    3. God willing, one day we can help you escape from this oppressive empire to some place where you can enjoy the freedom you deserve. Would you prefer Cuba, North Korea, or Venezuela?

  12. Good job, IJ. Now it is time to take the next step and challenge the disclosure laws. I’m sorry Reason took my hundred dollars last year, I promise to put IJ back to the top of my contribution priorities.

  13. That, my friends, is liberty!

    My hat is off to you, sir, and i rescind my earlier comment. But we still need a name for that breed of idiot.

  14. It never said there cannot be consequences to making the speech. It just says “congress can make no law…” So you can yell “FIRE” in a crowded theatre, you may get sued for the consequences of that action.

    1. Your version of justice is insufficiently proactive for many people today; it is not enough to require punishment or restitution to provide recompense for harmful behavior; the behavior itself, as well as any behaviors which may contribute or lead to it, must be preemptively eradicated. The necessary function of a court in such a system is not to mete out justice with regards to actions committed, but to validate a legal framework by which ertain classes of action, or inaction, may be eliminated before they are ever allowed to materialize.

  15. 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

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