Freedom of Political Speech Restored

Suppose you were arrested on criminal charges because you were the head of an organization that had produced a film critical of the wife of a former political leader, who was now running for office herself. What country would have such a law? Cuba, Myanmar, China? None of these. Actually, you would be talking about the United States of America.

Fortunately, on January 21, 2010, by a narrow 5-4 majority, the U.S. Supreme Court changed that law by rendering its decision in Citizens United v. Federal Election Commission. What is even more interesting, and astounding, is that President Obama does not like the decision one bit—as was evident in his State of the Union address on Wednesday evening.

The case dealt specifically with a 90-minute documentary produced by an organization called Citizens United. The group, a non-profit advocacy corporation, put together a production called "Hillary: The Movie," which urged viewers to oppose the presidential campaign of Hillary Clinton. However, fearing that such programming might be viewed as illegal under the Bipartisan Campaign Reform Act (also known as "McCain/Feingold"), Citizens United asked for a judicial ruling on the matter. The provision that concerned Citizens United was 441b, which prohibited a corporation from communicating to the electorate about a candidate within 30 days of a primary election or 60 days of a general election, and under threat of criminal prosecution. The case went all the way to the U.S. Supreme Court.

The Court’s majority found that McCain/Feingold restrictions on corporate speech were unconstitutional under the First Amendment, which prevents the government from abridging freedom of speech. In deciding as it did, the Court strengthened one of most important liberties that citizens, individual or corporate, can exercise: the right to criticize the existing government, its office holders, or those aspiring to office. The Court minced no words in pointing out what the federal law limiting corporate funding of political documentaries, books, or other communications really meant. Justice Kennedy said candidly: "The law before us is an outright ban backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election of or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election."

Kennedy gave examples of actions that would be considered felonious under the law. Sierra Club officers would be felons if they ran an ad in the prohibited timeframe disapproving of a Congressional candidate "who favors logging in national forests." In like manner, added Kennedy, the National Rifle Association’s officers could end up in jail if that organization published "a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban."

The defenders of such restrictions argued that the restrictions on corporately financed speech were necessary to prevent well-financed corporations and unions from replacing a true democracy of the people. Corporate money would dominate and "distort" the political process.

The Court rejected that argument in a flurry of cogent rebuttals both in the majority opinion and the concurrences. As Justice Scalia pointed out in concurring, the First Amendment "is written in terms of ‘speech’ not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals … to incorporated associations of individuals."

The Court discovered a glaring contradiction in the exemption of "media corporations" from 441b. If "electioneering communications" close to the time of the primary or election were disseminated by media corporations like CBS or the New York Times, those news stories or broadcasts would not put CBS or Times executives in violation. So, in effect, as the Court correctly discerned, 441b allowed the established print and electronic media corporations to hawk their views with impunity right up to election day due to an exemption in the law, while business and labor entities were silenced by the threat of prosecution if they did the same. Therein is the key to the political left’s unhappiness with the Court’s holding.

The disapproval of this decision comes from the liberal side of the political spectrum, including by President Obama. The reason? Section 441b, in effect, sheltered the political speech of news outlets—part of the liberal-leaning U.S. media—while other corporate points of view, potentially more moderate or conservative, were criminalized by the legislation. Now, the threat of prosecution under 441b for these formerly marginalized corporations is gone, swept away by the Roberts’ Court. In essence, the right to pre-election political speech for all persons, corporate and otherwise, has been reestablished.

Will the political marketplace now be crowded with new corporate entrants? Probably, but voters will likely do what they do with the claims, assertions, and arguments of commercial vendors. They will weigh them, accept some and reject others, and, in the end, make their determination for or against candidates. That is what the Founders intended when they penned the freedom of speech portion of the First Amendment. And that is what was restored by the Court in its Citizens United decision.

— Dr. John A. Sparks is dean of the Calderwood School of Arts & Letters at Grove City College (Grove City, PA), where he teaches business law and constitutional history. He is a Fellow of Educational Policy with The Center for Vision & Values, a practicing lawyer, and a graduate of Grove City College and the University of Michigan Law School.