citizens united–part 1

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.

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17 Responses to citizens united–part 1

  1. Jake C. says:

    As a statement of fact, corporations are owned and operated by people; executives, board members, and shareholders. I understand the controversy surrounding this case and the issue some people have for the decision. My question for people who disagree with the ruling is if they think that restrictions on corporations should extend to unions. Afterall, they aren’t much different than corporations. A group of individuals bound by the common interest to establish policy which benefits the group as a whole.

  2. Keri says:

    Three things:

    First, Google put a Mitt Romney ad on this page which made me snicker.

    Second, I would like you to address the issue of Donald Trump in this blog. For instance, what type of voter does he appeal to? Because I can’t figure it out.

    Third, I completely disagree with you on Citizens United. Have we discussed the Meijer case? A few years ago, Meijer wanted to build a store in Acme. The township council (or someone like that), denied their request. Meijer, with the help of their PR firm, then undertook a secret effort to lead a grassroots recall effort in Acme in order to get rid of the members of the township council who denied their request and replace those people with candidates more sympathetic to them. When it came to light that Meijer was leading this recall effort, the county prosecutor sued them because their actions were illegal under the current election laws. However, then the Citizens United case came down and the Meijer case was thrown out because their actions were no longer illegal. The Meijer case is small potatoes compared to what happens at the national level, but I still believe that it’s completely wrong for a corporation to have this sort of influence on elections. The best interest of large corporations does not align with the best interest of individual citizens and the nation at large.

  3. Village Bear says:
  4. Village Bear says:

  5. Jake makes a good point. This ruling (is that the right law term?) should probably cover unions. Something tells me that with the conservative movement to oust unions that this probably won’t happen under the current iteration of the Court.

    My point dovetails nicely with Keri’s: the interest of corporations is not the same interest of the people and something that makes this case so sticky. Corporations #1 priority is to make money, plain and simple. People, on the other hand, have many other competing responsibilities (along with ethics, morals, etc.). The responsibilities/ethics/morals that people have, while some of the people who run corporations may have, corporations themselves do not inherently have.

    I think that for a ruling like Citizens United to be adequately addressed, there needs to be a Supreme Court case that addresses “what is a corporation?” I’m extremely green when it comes to court cases, so I don’t know if the Court has ever heard a case about corporations (or whether they need to?), but I really think that the Supreme Court ought to undo some of the damage done by a court reporter in the late 19th century (Bancroft Davis, Santa Clary County v. Southern Pacific Railroad).

    With Love and Gratitude,


    PS: Oh, given the evidence at hand, the court probably made the “right” decision, but I really don’t think they should have even heard this case in the first place!
    PPS: From what I understand, at least because I heard it on Rachel Maddow, so I don’t know that it’s completely true, and from reading the Wiki article, I’m a little over my head because I don’t understand all of the legal jargon, but didn’t the Chief Justice cherry-pick this case before it was even brought to the Supreme Court level?

  6. Suszek says:

    Village Bear: That name is absolutely fantastic.

    As far as unions go, I will just make sure one point is clear. Most unions did take the side of the dissent in this case. However, the legislation that was at issue treated unions and corporations the same. Not one of the justices argued that they should be treated differently. So, had the decision gone the other way, it would not have left unions free to run campaign ads while preventing corporations from doing so. It would have prevented both.

  7. Suszek says:

    I have a lot to say about whether the court should have taken the case and the effect that the decision will have, however, I’m planning on addressing those issues (respectively) in depth in parts 2 and 3 of this post. So, I’d like to hold off for now.

    I would agree with the sentiment that the interests of corporations are not usually the same as the interests of individuals, or of the country as a whole. I’m not sure that I have a good answer to that other than to say that it doesn’t do much to distinguish press from non-press.

    I think the justices in the majority in Citizens United would respond by saying something like this: This case is not about the rights of corporations per se. Freedom of speech is not primarily focused on protected the rights of speakers to speak. Instead, it is focused on protecting the public’s right to hear as many ideas from as many speakers as possible. Thus, the harm in limiting the freedom of speech of any potential speaker (including corporations) is that the public misses out on hearing the ideas that might otherwise have been expressed. Since the best informed public is a public that hears speech from numerous sources, not all of those sources have to be representative of the interests of individuals or of the country as a whole in order to be protected by the First Amendment.

    p.s. Jeremiah, that was a proper usage of the word “ruling.”

  8. Jake C says:

    I’m not sure what the point of suggesting corporation verse individual motive is. In my opinion, our society is heavily dependent on corporations necessary to keep the country competitive in the international market. In order to do so, we must maintain the ability of corporations to contribute to our economic development. Government serves the well being of the country by managing many aspects of our society. Corporations whom also hold a vested interest in our society and our economy should be allowed to voice their concern to government and takes steps as individuals do to support the government in the manner that benefits them. That is if we want to stay economically competitive.

  9. @Suszek, Re: I think the justices would respond by saying…

    The potential argument of the justices make sense — on the face of it, but when we consider the ‘speech’ of corporations to the ‘speech’ of one person (or even a group of people), it’s a bit comical. The voice of one corporation and their seemingly infinite supply of funding can out-voice their opinion over a fair majority of many populations — combined! In that sense, doesn’t the “free speech” of this one “person” (aka corporation) hinder the speech of people who actually get to vote?

    @Jake, Re: Government serves the well being of the country…

    I think the “purpose of government” is the reason that there is more than one political party in (all?) democratic countries. There are some people who believe that government should be X and some people who believe that government should be Y, while others still, believe government should be some form of X and Y (or maybe neither and instead, actually, Z).

    One of my beliefs about the purpose of government is regulation and a case/point is exactly what we’re talking about — this Citizens United case. I believe that the government should set forth rules & regulations under which its citizens operate. When loopholes have been found, the government should quickly rectify these errors, so that no further damage (read: unfair) will be caused. From my perspective, the Citizens United case creates a loophole by which unfairness can seep through — legally!


    With Love and Gratitude,


  10. Suszek says:

    Jake: I think the concern about granting unlimited speech rights to corporations is that their interests are pretty narrow, while the interests of individuals are very broad. I agree with you that corporations are critical to the success of the United States. However, if we keep granting rights to corporations that are commonly thought of as applying to people, at some point don’t we have to start imposing the same restraints on corporations that people have? For example, people want to make money, just as corporations do, but they also tend to worry about morality, human rights and the environment. Corporations have no similar obligations. I think that most business people would (rightly) balk at the suggestion that courts should be deciding whether corporations are “moral” enough. However, if corporations have as much say in determining the path of the country as individuals, it seems difficult to explain why they shouldn’t be under the same moral restraints.

    Jeremiah: The First Amendment protects freedom of speech. It does not protect equality of speech or fairness of speech. It is tough for me to believe that the founders thought that the government should be the arbiter of speech in order to make sure that all potential speakers had a fair shot at it. If anything, the opposite is true. The founders were afraid that the government would be too powerful. The Freedom of Speech Clause was a hedge against government power. The point was that the government could do very little to regulate speech; that way, the founders could make sure that the anti-government views would always be protected. So, while it might be nice if the First Amendment set up a nice equal playing-field for speech (where people of limited means had the same ability to influence public opinion as corporations), that is not what the First Amendment says, and it runs counter to the history of amendment’s drafting.

  11. @Andy: I’ll give you that the founders probably didn’t think that the government should be the arbiter of speech, but the founders also probably didn’t think that their would be businesses who became more powerful than people (and the government).

    I can understand how “leveling the playing field” is a very liberal viewpoint, (I just think about the way the two [conservatives and liberals] ideologies view taxation and I can see that how I view this particular issues is very liberal)… but I just find it hard to believe that the spirit of the law (Amendment?) would support three or four corporations trying to out-spend each other on advertisements that express their “opinion” on who should be the next President.

    With Love and Gratitude,


  12. Suszek says:

    It is a fair point that the founders probably did not anticipate the form, size and power that corporations have today. I would even go as far as to say that if the founders were around today and could rewrite the First Amendment, they would probably be very tempted to implement the type of system that you are suggesting. However, they are not around today, and unless we are willing to amend the Constitution, we have to live with what it says.

  13. demark! says:

    1. Andy, glad you finally have a blog. Looking forward to reading.
    2. Andy, I’m appalled that a baseball player like yourself would have incorrectly spelled the word “balk.” For shame. 🙂
    3. I take it you didn’t vote for Citizens United last year when the case was decided on my blog poll entitled “Which was the worst Supreme Court case ever decided?” I voted 3 times for Citizens United. You probably voted for Dredd Scott or Korematsu or something. Weak.

    4. A couple errors/omissions: your list of “press” includes corporations, and in fact this is a case about corporations entering the sphere of the press. Not a case about the press. Corporations are legal entitites that are considered “individuals.” Thus, for all those folks debating this and wondering, please remember that corporations = individuals…

    …except when they don’t. Which is all the time. Corporations are individuals for tax purposes. For representational and redress purposes. But not for purposes like voting, etc. Thus, the Supreme Court has, in fact, addressed the question of “what is a corporation?” and the answer has been clearly: a quasi-individual. This is nothing new or troublesome for the court. For instance, gender is a “quasi-suspect” classification for due process purposes. So, Andy, we don’t need to worry about creating a bright line rule here because the framework already exists. It would be no problem whatsoever to define corporations in such a way to limit their ability to sponsor political speech. It would not chill speech as defined by the 1st Amendment.

    And along those lines, the freedom of speech clause DOES protect equality and fairness of speech. We do not allow someone to incite violence or panic with their speech. We do not allow hate speech. These are types of speech that have a chilling effect on the speech and actions of others and the Court has restricted these.

    I don’t want to take up your whole blog with my own comment, though as we lounged around the law school, I think I’ve given you my more than twenty cents a few times on this case and others. Wrongly. Decided. Period.

    5. Don’t mess with JPStevens! Callin’ my boy old?! You’re pushing it, Shoes. To quote Christopher Walken: “You’re talkin’ to my boy all wrong. You do it again…I’ll stab you in the face with a soldering iron.” 🙂

    6. Take it easy, buddy

  14. Suszek says:

    Mr. Senator:

    First of all, “baulk” is a proper alternative (British) spelling of the word “balk.” I’m not sure whether that makes it better or worse. It was a mistake either way. I apologize to the game of baseball.

    I went back and re-read your rant about Citizens United. For any interested non-Demark readers, that rant (his word, not mine) can be found here:

    I agree with about 80% of that rant. Your main objection was about judicial activism, an objection that I agree with and will address in my second post on this case.

    As for your critique of my argument, I’m having trouble grasping your main point. Yes, corporations are considered quasi-individuals. I doubt any of the justices would argue that they should be considered full individuals. The court is certainly nowhere near giving corporations the right to vote.

    So, you say that we don’t need a bright line rule here because the framework (presumably for treating corporations as quasi-individuals) already exists. I don’t understand how the framework of the treatment of gender discrimination under the Due Process Clause answers the question of how to figure out when corporations are protected by freedom of the press and when they are not. Is the suggestion that for First Amendment issues, regulations of corporations should receive some sort of medium scrutiny, similar to the standard for gender discrimination? That’s a novel idea. I’m not so sure it would work though. Would CNN and GM get the same level of scrutiny? If not, we are still faced with the same problem of figuring out who is press and who is not. Perhaps I have taken your argument in the wrong direction, but I am genuinely confused as to where you are trying to go.

    The First Amendment does not protect equality or fairness of speech. The purpose of preventing speech that promotes violence or panic is to maintain the peace and stability of the country. The purpose is not to make sure that speech is fair. Police officers cannot pull advocates of rioting off soap boxes so that somebody else can come along and make a more reasoned point. They can do it to prevent a riot from breaking out.

    The same point can be made about hate speech. The reason that you can’t burn a cross on somebody’s lawn is not so somebody else can come along and put up a statute of your boy, Stevens. It is so the people inside the house don’t become so intimidated that they feel the need to move.

    As far as Stevens goes, I did not mean to insult him. I have a lot of respect for Justice Stevens. However, the man will turn 91-years-old this Wednesday. Calling him old is not an insult, it’s just an accurate and memorable way to describe him to people who might not be familiar with him. Similarly, DeMark, if I were to call you “goofy,” that wouldn’t be an insult. It would just be an accurate and memorable way to describe you.

  15. demark! says:

    Goofy?! Gaw-hawsh and gee-willikers, Andy!

    In brief, yes, I am advocating for a case-by-case, quasi-individual treatment within the first amendment generally for corporations. Beyond that and it really is judicial activism. If lawyers and lower court judges, not to mention the general public and corporations themselves, aren’t left wriggling in the wind trying to discern just what the Court would do in a novel case, then the Court hasn’t done its job. :)!

  16. Pingback: judicial activism (citizens united–part 2) | more than twenty cents

  17. Jake says:

    I agree with Demark.

    Hey Demark, how you doing?

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