Perhaps the most controversial Supreme Court opinion in the past few years has been the Citizens United case. The court held that corporations and other organizations have the same freedom of speech rights as individuals, including the rights to contribute to political candidates out of the corporations’ general funds and to sponsor advertisements that overtly support or oppose the election of individual candidates.
Because there were multiple important aspects to the case, I will discuss them in a 3-part post. The first deals with the merits of the court’s conclusion. The second deals with what the case says about judicial activism. The third deals with the impact the case will have on elections.
For readers who really want to hold me accountable, the entire 168 page opinion can be found here.
This was an extremely close case. It was a 5-4 decision involving the usual suspects. The four conservative justices were in the majority along with Justice Kennedy, the swing vote, who wrote the majority opinion. The four liberal justices all signed one vigorous dissent by an older than dirt Justice Stevens (who has since retired, replaced by Justice Kagan). Both sides advanced dozens of arguments and sub-arguments. For brevity sake, I will only address the best arguments for each side.
The central pillar of the majority’s decision was that CNN is a corporation. In other words, how is it possible that the Constitution allows the government to limit speech by corporations on political issues if the Constitution does not allow the government to limit the ability of the media (which is made up of corporations) to talk openly about politics and endorse candidates?
I can already sense my liberal friends chomping at the bit of this rhetorical question. “Easy!” they shout, “the court could have held that media-corporations are an exception to the general rule that the government can regulate corporate speech more strictly than individual speech. After all,” they might add, “the media doesn’t need the Freedom of Speech Clause of the the Constitution, it has its own clause, the Freedom of the Press Clause.” Au contraire my friends, your argument carries with it an astoundingly difficult task. In order to make such a distinction, we would have to figure out what is meant by the word “press.”
Believe it or not, in the more than 200 years since the Constitution was adopted, the word “press” has never been defined by the Supreme Court. In the Citizens United case, Justice Kennedy, writing for the majority, addressed the issue that my liberal friends have (unwillingly, yet enthusiastically) brought up. Kennedy said that making this distinction was appealing, but the court simply could not do that because it could not define the word “press.” It was too hard for the court.
Well, let’s try to do it ourselves. Please tell me, which of the following should be included under the umbrella of “press” (remember that if you don’t call them press, the government can restrict their political speech): General Electric (which owns NBC), Facebook, the Huffington Post blog section, the AARP, the radio stations that air Rush Limbaugh, the publishing companies that publish books by political candidates, the Democratic Party. None of these organizations are individuals, so if the dissent had its way, their speech could be limited by the government unless they were considered “press.” It is very difficult for me to figure out any reasonable definition that would encompass them but not other organizations/corporations.
In fact, it is so difficult to solve this riddle that the dissent was not even able to offer a solution. Instead, Justice Stevens argued that the court should not have reached the issue of the press because none of the parties before the court alleged that they were members of the press, so the court did not have to address the issue. That is probably true (and I will address that point in Part 2). However, if the dissent had won this case, the problem of defining “press” certainly would have come up eventually, and it is unclear why we should think that an answer that seems to have eluded everyone up until now would have suddenly appeared when the issue did come up.
Now, here is the problem for the majority. The majority’s opinion in this case has effectively eliminated the Freedom of the Press Clause from the Constitution. If all corporations enjoy full freedom of speech, it doesn’t matter whether you are The New York Times, CNN or General Motors, you can write all the editorials, endorse all the candidates, run all the campaign ads and make all the contributions that you want. Freedom of press means nothing because everybody has freedom of speech, which encompasses all of the rights that you might want to get out of freedom of press anyway.
It seems strange that the drafters of the First Amendment would have placed the Freedom of the Press Clause in the text if it didn’t mean anything at all. It is so strange, in fact, that there is a canon of constitutional interpretation that says that if an interpretation of one clause would result in another clause being irrelevant, that interpretation is probably wrong (the “surplusage doctrine” for those who want to impress their nerdy friends).
Since I have no real answers on how to solve these dilemmas, lets mosey on over to the dissent, and see what its most compelling argument was.
If we are to accept the proposition that corporations are protected by the same right of freedom of speech as individuals, why don’t those corporations enjoy all of the other constitutional rights, such as the right to vote? Both rights are core rights in a democracy. Both are generally associated in people’s minds with individuals. So, how are they different?
Here, my conservative friends might jump in, arguing that allowing corporations to speak does not reduce the effect of the speech of individuals, but allowing corporations to vote would reduce the effect of the votes of individuals. I’m not so sure about that. If Google donates $1 million to a candidate’s campaign, doesn’t that reduce the effect of my $100 donation to either that candidate or her competitor? If corporations spend a bunch of money on TV commercials in the weeks before an election, doesn’t that drive up prices and reduce the ability of individuals or even candidates to run their own commercials?
So, at the end of the day, we are left with some very difficult questions to answer (and I barely even pierced the skin of the crocodile, as they say). While acknowledging that it was an extremely close case, I have to side with the majority in Citizens United. Now, from a technical, legal standpoint, the dissent is probably right (that freedom of speech was never supposed to cover corporations to the same extent as individuals; that is what freedom of the press was for). However, I would have had to have voted with the majority in this case because I can’t come up with a way to draw a line between press and non-press in a way that protects the rights of all of the corporations and other organizations that should be protected. Any attempt by the Supreme Court to draw such a line would probably muddy the waters, confuse people about who is protected and who is not and result in a chilling effect on organizations engaging in protected speech at the heart of the First Amendment.
Because I cannot define “press,” I have to (narrowly) come down on the side of the majority.