"Citizens United has been unjustly maligned"

As Jacob Sullum details in our December cover story, last term's Supreme Court decision in Citizens United v. F.E.C. has inspired an extraordinary amount of liberal teeth-gnashing, most famously illustrated by President Barack Obama's remark that he "can't think of anything more devastating to the public interest" than Citizens United. So it's a refreshing change of pace to discover liberal Stanford law professor (and potential Supreme Court nominee) Kathleen Sullivan's new article on the case in the Harvard Law Review, which concludes on this respectful note:

Citizens United has been unjustly maligned as radically departing from settled free speech tradition. In fact, the clashing opinions in the case simply illustrate that free speech tradition has different strands. The libertarian strand from which the majority draws support emphasizes that freedom of speech is a negative command that protects a system of speech, not individual speakers, and thus invalidates government interference with the background system of expression no matter whether a speaker is individual or collective, for-profit or nonprofit, powerful or marginal. The egalitarian strand on which the dissent relies, in contrast, views speech rights as belonging to individual speakers and speech restrictions as subject to a one-way ratchet: impermissible when they create or entrench the subordination of political or cultural minorities, but permissible when aimed at redistributing speaking power to reduce some speakers' disproportionate influence.

Read the whole thing here (PDF).

[Via Bench Memos]