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Protecting Free Speech

By Bryant Jackson-Green

 

Campaign reform policy has remained a highly controversial issue in America over the past few decades. On the one hand, there is a desire to keep America’s political process clean, free from the potentially distorting influence of big money in the political arena, with politicians and American government beholden to corporate and union interests. On the other hand, civil liberties advocates claim that campaign finance regulations are an unconstitutional violation of the First-Amendment guaranteed right to free speech. Earlier this year, the Supreme Court made a critical decision addressing this very issue: Citizens United v. Federal Election Commission, a 5-4 decision which overturned Congressional legislation and Supreme Court precedent prohibiting corporations from using treasury funds on advertisements advocating the election or defeat of a given candidate for national office.

The primary question raised by the controversy is this: are regulations prohibiting corporate expenditures on political advocacy constitutional? In order to properly answer this question, we must examine two other questions upon which the answer relies – are corporations covered by the first amendment guarantee to free speech, and can spending on political advertisements be properly considered an expression of speech? I argue that the government has no constitutional role to play in regulating the political discourse and in light of the fact that money is, in fact, necessary for the promotion of political stances in the marketplace of ideas, it necessarily follows that the use of money towards these ends must be defended from government intrusion.

Citizens United v. Federal Election Commission: Setting or Restoring Precedent?

The case in question centers around a film created by Citizens United, a politically conservative non-profit corporation, entitled Hillary: the Movie. The film, a feature-length documentary, was clearly an attack on then Senator Clinton’s presidential aspirations during the 2008 election season. Although the production had already been released on DVD and in theatres, Citizens United sought to have the film shown via video on demand (VOD) services through cable providers, in hopes of widening its viewing base before the upcoming election.

The problem was that the Bipartisan Campaign Reform Act of 2002, also known as the McCain-Feingold Act after its primary sponsors, prohibited corporations from directly spending on a certain kind of advertisement called “electioneering communications” within 30 days of an election. According to the Federal Election Commission, electioneering communications are broadcasts that “[refer] to a clearly identified candidate for federal office” and are “publicly distributed shortly before an election for the office that candidate is seeking,” and “[are] targeted to the relevant electorate.” If, for example, a corporation wished to spend its funds on a television advertisement denouncing or supporting a candidate, such a project would be prohibited under law. These regulations were taken up with the intention of preserving the integrity of democratic electoral process. If, the argument goes, corporations are permitted to spend unlimited amounts in advertisements to support their preferred candidates, the large amount of capital they possess will enable them to flood the airwaves, distorting the political discourse.

But in a 5-4 decision, the Supreme Court saw this issue differently. Writing for the majority, Justice Anthony Kennedy criticized the FEC regulations, and the motivations behind them, as having a perverse effect on free speech—particularly political speech, which is necessary for the proper functioning of democracy:

The First Amendment “has its fullest and most urgent application’ to speech uttered during a campaign for political office...For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence.”

The majority clearly framed regulations prohibiting the use of funds on electioneering advertisements as a suppression of speech, limiting the civic discourse that might otherwise exist without said regulations. As a matter of protecting freedom of speech, according to the court, they could not be upheld.

Yet, this particular case, while arguably the most high profile case touching on campaign finance reform in recent memory, was by no means the first to come before the Supreme Court. The trend of judicial decisions regarding campaign finance and corporate persons can be divided into two distinct stances: a “pre-Austin” and “post-Austin” line of reasoning. The former upheld First Amendment protections as applicable to corporations. Among these cases, two in particular stand out: In First National Bank of Boston v. Bellotti, it was decided that a Massachusetts law preventing business corporations from “making contributions or expenditures” with the goal of “influencing or affecting the vote on any question submitted to the voters,” could not be upheld, since “speech that otherwise would be within the protection of the First Amendment” does not “lose that protection simply because its source is a corporation.”

In Buckley v. Valeo, a federal law limiting direct campaign contributions was upheld. However, those portions prohibiting candidates from spending their own money on advertisements , were struck down, since they were “direct and substantial restraints on the quantity of political speech.” What is consistently shown is that corporate spending to persuade voters was routinely recognized as covered by first amendment guarantees to free speech.

Things changed in 1990, however, with Austin v. Michigan Chamber of Commerce, where the “post-Austin” precedent restricting the speech of corporations was first outlined. The Court upheld the Michigan Campaign Finance Act, which prohibited the same type expenditures discussed above, reasoning that corporations’ advantages “in the accumulation of assets” necessitate “regulation of their political expenditures to avoid corruption or the appearance of corruption.” The states’ interest in preventing corruption was deemed compelling enough to curb free speech rights. The most recent major case in this line was McConnell v. Federal Election Commission (2003), which clearly echoed Austin: “The governmental interest underlying §323(a)–preventing the actual or apparent corruption of federal candidates and officeholders–constitutes a sufficiently important interest to justify contribution limits.” These more recent (and thus controlling) cases provided a precedential basis for upholding the spending bans.

The Corporation as Actor and Freedom of Speech

In order to have a complete view of the controversy over corporate personhood and rights to freedom of speech, it is useful to consider precisely what a corporation is and what is meant by corporate “personhood.” A corporation is defined, in a strict, fairly didactic sense, as “a legal entity created through the laws of its State of incorporation,” in which the organization is endowed with an identity distinct from the association of individual members who make it up and the shareholders who own it. This distinct legal identity makes up the sum of what is called legal “personhood.” A corporation, in this sense, is treated as a person in a limited set of interactions – being able, for instance, to enter into contracts, bring lawsuits against a party or be sued, or to own property. It is also worth mentioning the variety of those entities classified under the title corporations. Corporations are not all Fortune 500-style organizations. The classification also includes smaller collections of people, not limited to small businesses, churches, charitable organizations, and nonprofit political advocacy groups – such as the plaintiffs in this case.

Do corporations have a right to free speech? One of the most common critiques of the Citizens United decision relies on the misconception that corporations are extended the right to free speech because the court suddenly decided to treat them as legal “persons.” The first difficulty for those answering in the negative is the text of the first amendment itself: “Congress shall make no law…abridging the freedom of speech.” The key point taken from this text is that it does not endow freedom of speech upon any person or association. It does not say that individuals or even persons, either in the colloquial or legal sense, have the right to freedom of speech. Rather, it outlines a prohibition on a certain government action – “Congress shall make no law” and makes no qualification with respect to object. It does not matter if Congress attempts to regulate a person or any other entity, if the act itself is fundamentally unconstitutional. It would seem, therefore, that a more proper question would not be “do corporations have the right to free speech,” but does the government have the right to suppress speech rights at all? The plain meaning of the constitution suggests that it does not.

One might object, however, that the government has an interest in protecting the integrity of the electoral process that is so great that some abridgement of the First Amendment might be necessary. When it comes to rights explicitly protected by the constitution, the burden to prove this necessity is a heavy one which falls upon the government – meeting strict scrutiny. The highest form of scrutiny a law must meet, this principle mandates that the law must further “a compelling governmental interest,” and must be “narrowly tailored” to meet this interest. The argument generally made for limiting corporate speech is the potential that corporate bodies, with their access to large sums of money, might drown out other voices in the marketplace of ideas. As the Federal Communication Commission argued in their supplemental brief, the ability of corporations to fund political advertisements “is inherently likely to corrode the political system, both by actually corrupting public office holders and by creating the appearance of corruption.”

However, this reasoning cannot convincingly satisfy strict scrutiny. First, while the government may have an interest in protecting our political system from corruption, it is not clear that paying for advertisements is always, or even ever, a manifestation of such corruption. The argument that corporations would have an undue influence on elections on account of their larger financial resources in turn suggests that, to some extent, the equality of speech is an important value that government must protect, and that candidates are somehow entitled to a forum in which to promote their ideas. The first amendment may guarantee a right to speak freely, but what the constitution clearly does not guarantee is an equal right for all to an audience.

Even more troubling is the idea that speech can be regulated on the appearance of corruption, not on its actual existence in fact. In no other area of law is it permissible for rights to be abridged on the appearance of misconduct. One cannot be charged with a crime or punished on a mere suspicion of illegal activity, but it must be clearly proven in a court of law.

The means the government used to justify the law were by no means narrow either. Recall that corporations are not only large firms like Exxon Mobile or Goldman Sachs. Nonprofit political or advocacy organizations, from the Sierra Club or the Children’s Defense Fund, are “corporations” whose primary reason for existence is to advocate causes which require political speech, may be deprived of their rights as well. In addition, media corporations, including MSNBC, Fox News, the New York Times, or the Wall Street Journal engage in political speech. The effect of the law, in practice, is that any one of these groups could be censored under a vague definition of “influence.” Instead of being narrowly tailored to prevent corruption, such regulations touch on many traditionally protected types of speech and speakers.

Is Money Speech?

Even if the government does not have the right to censor speech based on the identity of the speaker, the question of whether financial expenditures can be considered an expression of speech remains. At first glance, money might be seen as merely a type of property. This is true, but money is necessary to engage in certain forms of speech. Political advertisements, be they in newspapers, billboards, radio programs, or television commercials, all cost money to produce and to air. To forbid or limit the amount of money one can spend on advertising necessarily limits freedom of speech. As political and legal commentator Glenn Greenwald forcefully argued in the aftermath of the Citizens United v. FEC decision:

Anyone who believes [money is not speech] would have to say that there’s no First Amendment problem with any law that restricts the spending of money for political purposes, such as: ‘It shall be illegal for anyone to spend money to criticize laws enacted by the Congress; all citizens shall still be free to express their views on such laws, provided no money is spent; It shall be illegal for anyone to spend money promoting a candidate not registered with either the Democratic or Republican Party; all citizens shall still be free to advocate for such candidates, provided no money is spent.

The act of spending money to disseminate one’s speech cannot be separated from free speech rights.

One might respond that freedom of speech is meaningless if one cannot financially afford a platform through which to advocate one’s ideas, and there is certainly some degree of truth to this claim. Yet, there are a variety of mediums through which one can engage in political advocacy, which have either low or nonexistent barriers to entry, democratizing speech. With the expansion of the internet in the 21st century, blogs, which can be obtained for free, offer a popular platform for engaging the world in discussion and promoting ideas. Social networking sites, including Facebook and MySpace, are also widely used mediums for communication. Even traditional methods, such as public protests and demonstrations, are available for the truly passionate. However, an inequity in the effectiveness of venues for speech due to a lack of financial resources is not an argument for the suppression of the speech of others. As Justice Kennedy stated in his McConnell dissent “The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.”

Conclusion

This First Amendment protection of speech is an unqualified prohibition on a particular type of governmental action. It follows that the government has no right to forbid anyone, even corporations, from engaging in political speech. Furthermore, the nature of speech in private markets requires that money be used in order to acquire a forum in which to speak.

While I’ve dealt primarily with the legal and doctrinal questions surrounding Citizens United, there is some uncertainty surrounding the practical effects of the Supreme Court’s decision. Will the airwaves now be flooded with mudslinging, highly-charged partisan advertisements bankrolled by Wall Street? No one knows for sure, but an insight provided by Michael Jordan on why he does not campaign on political issues might be applicable: “Republicans buy sneakers too.” So long as the business class must rely upon consumers for their livelihood, I suspect that it is unlikely that they will alienate customers by actively campaigning on controversial issues. However for those companies that choose to, along with sundry nonprofit organizations and political advocacy “corporations” that choose to, the Supreme Court has struck a blow in defense of free speech.