Supreme Court

Justice Kennedy on Citizens United: 'The New York Times Was Incensed Their Little Monopoly to Affect Our Thinking Was Taken Away'

Justice Kennedy defends his vote in the free speech case.


Credit: C-SPAN

Justice Anthony Kennedy recently sat down with Harvard Law School Dean Martha Minow for a wide-ranging discussion about the Supreme Court before an audience of Harvard law students. Given the setting, it was perhaps inevitable that Kennedy's majority opinion in the free speech case Citizens United v. FEC was going to come up. But I'm not sure the mostly liberal audience was quite prepared for what Kennedy had to say. As The National Law Journal reports:

Kennedy… in response to a student's question, said he stands by his 2010 decision in the still controversial Citizens United campaign finance case.

"In my own view, what happens with money in politics is not good," he said. "Remember: the government of the United States stood in front our court and said it was lawful and necessary under the [McCain-Feingold] Act to ban a book written about Hillary Clinton in the prohibited period of six, three months before the election. That can't be right.

"I wasn't surprised The New York Times was incensed their little monopoly to affect our thinking was taken away. I was surprised how virulent their attitude was. Last time I looked, The New York Times was a corporation. This meant the Sierra Club, the chamber of commerce in a small town couldn't take out an ad."

Read the whole thing here.

Related: The New York Times, a Corporation, Worries That the First Amendment Is Now 'Embraced by Corporations'

NEXT: 3 Questions About SCOTUS for Tonight's GOP Presidential Debate

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  1. Gotta register to read the whole thing? Fuck that.

      1. CU question near the end starting at 57:25.

        1. Thanks for the link! Changes my whole picture of the man.

  2. “Last time I looked, The New York Times was a corporation.”

    But they’re the (liberal) PRESS! So they can of course say anything they want.


    1. I really only want to read the comments from splutting progressives about how Kennedy has sold out democracy to the Kochs and he is some kind of Right-Wing mole pretending to be ‘liberal’ and OMG worst ruling ever

    2. The interpretation of the first amendment that treats “the press” as the institution and not the medium is just awful. The fact that the government had to argue that a book, which under even the most conservative definition is a product of the press, could be banned before an election, should make it obvious to anyone with a brain that they had no leg to stand on.

      1. That the government argued they had the right to ban a book at all in and of itself undermines any faith in government one might have.

        1. That even after that concession, the government only lost 5-4 instead of 9-0, is another fairly bad sign.

  3. The New York Times was incensed their little monopoly to affect our thinking was taken away.

    Boom. The flood of proggie tears is going to be delicious.

    1. Sadly it seems the 2 whole comments at Nat Law Journal were both people pissed off about Gay Marriage

      Hopefully he gets quoted somewhere else.

      1. So our two most prominent SoCon whiners post there, too?

  4. “I wasn’t surprised The New York Times was incensed their little monopoly to affect our thinking was taken away. I was surprised how virulent their attitude was. Last time I looked, The New York Times was a corporation. This meant the Sierra Club, the chamber of commerce in a small town couldn’t take out an ad.”

    As bad as this Supreme Court has been, I shudder to think about how much worse it could be in the future if Hillary Clinton wins.

    I have no faith in a Democrat to appoint someone who thinks this way. In fact, I have a lot of faith in a Democrat to nominate someone who doesn’t think this way–specifically because they want to undermine the thinking that created the racist, misogynistic, unfair, and unequal outcome society we suffer today.

    It’s almost enough to make me want to support a Republican.

    1. If Hillary wins, she will nominate BHO to the Supreme Court.

      Maybe not her first nomination, but definitely before the end of her term.

      With Ginsberg, Scalia and some of the others getting on in years, the next POTUS will have a lot of ability to shape the court.

      1. Let’s get real. The idea of Hillary nominating Obama to the Supreme Court is highly unlikely. For one thing, it would be too nakedly political. Obama is not a judge and never has been. The only president ever to serve on the SC was Taft, and he was a judge before he was president.

        Secondly, and probably more importantly, if Clinton becomes president, why would she do it? It’s not like Obama can do anything more for her at that point.

        1. But he was nominally a law professor. There have been other justices who were never judges, notably Earl Warren.

          I do not see how being too nakedly political would stop her from nominating Obama. The Top Men Club would find it very awkward to turn on one of their own. The GOP rejecting Obama would allow Team Blue to play the race card.

          Hillary would appoint Obama because he could be counted on to be reliably pro-government.

  5. The great majority of people who complain about the CU decision have not actually read it, I’m sure. I read it. I was actually pleasantly surprised that it’s fairly conservative (in the non-political sense) in its reasoning, which is pretty simple: the Bipartisan Campaign Reform Act banned political communications by corporations and unions within a certain timeframe. The Supreme Court pointed out that the First Amendment says that Congress can’t restrict the freedom of the press.

    And that’s it, really. It has pretty much nothing to do with corporate personhood or the effect of big money on politics; Congress tried to ban some explicitly political speech based on timing and the identity of the speaker, which ought to be self-evidently counter to the First Amendment regardless of your political views. The best you can say about people who want to “overturn” CU is that they’re ignorant about what it really means.

    1. ^^ This x 1000. Nothing about corporate personhood, nothing about Saudi princes giving unlimited money to candidates.

      1. I have questioned a few lefties that railed against Citizens United if they could tell me a little about the case. As expected none of them could even give a basic telling of what it actually involved. It was highly amusing to tell them and with the squirming.

        1. And they hated you for it. Why couldn’t you leave them to their social signalling to all the other people with correct feelings?

        2. Lefties I know don’t squirm, they just lie. They’ll tell you straight out that CU was when SCOTUS legalized bribery. Corporations are now allowed to make cash payments to politicians in exchange for favorable legislation, because they are now considered people. They don’t bat an eye when they spew this nonsense.

    2. There you go, hiding behind the First Amendment again.

      We should repeal the damn thing. And the Second Amendment, too, doncha know.

      1. The first amendment is a relic of a pre-internet time. The founding fathers couldn’t have anticipated the complex national security issues that arise when information can be easily transferred, published, transmitted, and disbursed. Maybe it will be the Obama court that finally comes down on the side of common sense?

        1. Look, no one is saying they want to take away your free speech, ability to assemble, or printing press. We just want to put reasonable restrictions on it. The founders could not have anticipated the high capacity hard drives that can store whole libraries, high speed automobiles, fiber optic cables delivering information near the speed of light, or high capacity printing presses. When they wrote that amendment they only had hand operated block presses, horse drawn carriages, and people shouting in the town square in mind.

    3. It doesn’t matter what it ACTUALLY says, it only matters what they FEEL it says.


        1. That whole line of argument is just wrong (yes, I know you know that). It’s pretty clear that the first amendment does not apply only to individuals acting on their own. “Corporate personhood” has nothing to do with why people acting in groups have the right to freely communicate.

        2. Ironically, however, they like to tax corporations as if they were people.

          1. Nice. That’s going in the counter argument quiver next time this inevitably comes up.

            1. How much corporate lobbying would just go away if we eliminated the corporate income tax entirely? Sure there would still be dollars looking for regulatory rent seeking, but there is a way to eliminate that, too…

          2. They like to tax corporations as if they were people.

            They also like to sue corporations as if they were people. They are too stupid to realize that if you can’t sue the corporation, then you can’t go after the corporation’s revenue and assets. Good luck proving the CEO was personally liable for that industrial spill or scalding hot coffee or whatever other thing you hope to get millions of dollars for.

            Of course, the honest ones just want to nationalize all the corporations. Because the government has a much better track record of accountability…

            1. Because the government has a much better track record of accountability…

              No. It’s because government doesn’t give profits to rich people. So even if government is less accountable and less efficient, it is better than corporations because it doesn’t give money to the rich. It’s a matter of morals. Giving money to the rich is bad, m-kay?

            2. Because of fairness!

          3. I always like to ask them if they refuse to go to Chic-fil-a. Because if you don’t think a corporation can have religious beliefs (ala Hobby Lobby) then there should be no problem as Chic-fil-a can’t possibly have an opinion on gay marriage.

    4. Though you see it less these days, the government’s argument for having the authority to ban Citizen’s United anti-Hilary documentary inverts the pro McCain-Feingold mantra of ” money is not speech”. For the government to be correct in its action speech has to be money. In other words, the Citizen’s United documentary was a contribution in mind to Hilary’s opponents, which at the time this happened was Barack Obama. They were arguing that that documentary was a corrupting influence on Obama.

  6. Kennedy lays the smack down.

  7. People who think Citizen’s United is some dire blow against the political voice of “regular people” or some kind of victory of the dreaded 1% are people who frame their worldviews in terms of class warfare. They’re not idealists looking to save the republic, they’re political pragmatists willing to use the law as a weapon against political enemies who won’t toe the line. They don’t have a problem with the NYT or the Sierra Club (or Apple, I daresay) because those groups have the right politics. It’s not Mr. Smith Goes to Washington, it’s 1984.

    1. Tow the Lion!

  8. I am still frequently surprised and depressed by how many people either don’t get or don’t care why CU was an obviously and clearly correct decision.

    1. You’re assuming that people are honest, rational and well-informed. That is, unfortunately, not the case.

    2. and yet it as 5-4 decision. This is what is so damn depressing.

      1. ^^^THIS!!

        By what possible interpretation and reasoning could 4 Supreme Court justices defend banning a book?!

        1. Because fuck you, that’s why.

  9. Am I missing something? There is no content at the link to the story, only an introductory paragraph and 2 comments.

    1. Ah, I just refreshed the page and it gave me an option to create an account.

  10. Justice Kennedy: *drops mike on stage, walks off with middle finger in the air*

    1. drops mike on stage

      Poor bastard

      1. +1 fire at will

  11. Money isn’t speech! Hate speech isn’t free speech! It’s okay to censor people who have “privilege”!

  12. When I mentioned the book-banning thing to a CU critic, she was annoyed – at me for bringing it up. She’d never heard about any book banning. All she knew was that the Supreme Court had supported Corporate Power, which is a Bad Thing.


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