Freedom Line Blog

In this week’s Freedom Minute, CFIF’s Renee Giachino discusses the recent U.S. Supreme Court decision in Citizens United v. FEC and the left’s response.

If there were any lingering questions about this Administration’s stance on free speech, all doubt was removed last night when the White House issued this response:

“With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”

Right.  When did censorship become as popular as organic foods in this country?  Mr. President, you also failed to mention that this decision will be a huge boon for unions, major contributors to your campaign and the Democratic Party.  Citizens United is a victory for both the left and the right, a victory for anyone who is opposed to jailing someone over broadcasting a political position.

This Administration claims to be “liberal,” yet it also took the position that banning books that contained one line of advocacy was a felony.  What would have happened if McCain-Feingold were around in the 18th Century when the Federalist Papers were being printed with small business paper?  Locking people up for political speech is as American as burning books or jailing political enemies.  Why stop now, Mr. President?

The end of the world is still far off in the distance.  As former Federal Election Commission Chairman Bradley A. Smith mentioned today, 28 states already allow corporate and “special interest” spending.  States like Oregon, Virginia and Utah are hardly known as bastions for corrupt political activity, even though they allow corporations to take a stance when issues are debated in the public circle.

Harsh critics of Free Speech claim that because corporations don’t vote that they shouldn’t be afforded basic First Amendment protections.  So, if the First Amendment doesn’t apply to corporations, perhaps they shouldn’t pay taxes?

The Supreme Court has already held that the Constitution, in most parts, applies to corporate entities.  Is the First Amendment inapplicable when the actor grows richer?  What about the Takings Clause in the Fifth Amendment?  Should corporations and other for-profit entities be denied due process of the law simply because they don’t vote?  I’m sure politicians would approve of that but thankfully they haven’t overturned the Fifth Amendment … yet.

Lacking voting rights is an argument for this decision, not against it.  Corporations and non-profits lack the right to vote and can’t even contribute directly to political parties unless they choose to form expensive political action committees (PAC).  Independent expenditures are one of the few ways businesses can influence legislation that has a direct impact on their existence.

Let’s also remember that 99% of corporations in the U.S. aren’t rich or powerful.  The language in McCain-Feingold was woefully overbroad and applied to every entity from General Electric to your local florist.

Americans should be rejoicing because the Administration and most politicians hate this decision.  That’s wonderful. Anything that upsets career politicians is normally good for the rest of the country.   Then again, Congress should be happy; their enemies are no longer hidden behind the veil of those evil 527 groups.

With the blackballing of Fox News, his appointment of Justice Sotomayor, who voted against free speech, and his response to Citizens United, President Obama has made clear what many suspected years ago.  The President is not a fan of free speech, that is unless he’s breaking campaign promises and drowning out his opponent with over $700 million in union-funded spending.  As much as his speech might have been repulsive to some, President Obama had every right to spend money spreading his views.

Maybe it’s not free speech to which the President is opposed; maybe it’s just a little healthy competition.

Rather than trudge through the entire 183-page decision in Citizens United, here are a few choice passages from the opinion. Enjoy.

As amended by §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate.

In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary (hereinafter Hillary) critical of then-Senator Hillary Clinton, a candidate for her party’s Presidential nomination. Anticipating that it would make Hillary available on cable television through video-on-demand within 30 days of primary elections. It feared, however, that both the film and the ads would be covered by §441b’s ban on corporate funded independent expenditures, thus subjecting the corporation to civil and criminal penalties under §437g.

There are short timeframes in which speech can have influence. The need or relevance of the speech will often first be apparent at this stage in the campaign. The decision to speak is made in the heat of political campaigns, when speakers react to messages conveyed by others. A speaker’s ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first commence a protracted lawsuit.

In McConnell v. Federal Election Comm’n, this Court upheld limits on electioneering communications in a facial challenge, relying on the holding in Austin v. Michigan Chamber of Commerce, that political speech may be banned based on the speaker’s corporate identity. Austin “uph[eld] a direct restriction on the independent expenditure of funds for political speech for the first time in [this Court’s] history.” There, the Michigan Chamber of Commerce sought to use general treasury funds to run a newspaper ad supporting a specific candidate. Michigan law, however, prohibited corporate independent expenditures that supported or opposed any candidate for state office.

Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures.

The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin’s antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form.

Austin interferes with the “open marketplace”of ideas protected by the First Amendment. Its censorship is vast in its reach, suppressing the speech of both for-profit and nonprofit, both small and large, corporations.

Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws. Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers.

The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.

The long-awaited case of Citizens United v. FEC was decided today and defenders of the First Amendment received a welcome surprise.

The Court sided with Citizens United and gave another blow to McCain-Feingold’s onerous campaign finance restrictions.

Click here for the full opinion. 

The decision was 5-4, with Kennedy, Thomas, Scalia, Alito and Roberts siding with the First Amendment.  The newest justice, Sotomayor, joined with Stevens, Breyer and Ginsburg in dissent.

Here is how the Court broke down the opinion:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opinion, in which ALITO, J., joined, and in which THOMAS, J., joined in part. STEVENS, J., filed an opinion concurring in part and dissenting in part,in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part.

The Supreme Court, unexpectedly, did not issue its opinion in the First Amendment case of Citizens United v. FEC.  The Court heard oral arguments last September and many court watchers expected an opinion today.

Perhaps this delay means the opinion is larger and more sweeping than many observers anticipated.  The first major Supreme Court case reviewing McCain-Feingold, McConnell v. FEC, weighed in at 298 pages.  Will Citizens United top that figure?

The Court likely made up its mind last year but perhaps the long delay means that the lobbying continues.

Stay tuned for more coverage.

Today, the U.S. Supreme Court resumes its 2009-2010 term with a round of two oral arguments.  Though the two cases that pit Alabama v. North Carolina and Briscoe v. Virginia have national legal implications, court watchers are eagerly awaiting other consequential decisions this term.

The fate of the First Amendment and campaign finance reform could be decided as early as tomorrow in Citizens United v. FEC.  The justices reargued the case on September 9, 2009, but the Court has yet to report a decision.  With federal primary elections less than a month away, candidates and First Amendment lawyers seek guidance from the Court as soon as possible.

The best case scenario would be a broad sweeping opinion striking down many of McCain-Feingold’s onerous First Amendment restrictions.

In addition, the spring term ushers in a new round of retirement speculation.  Justice John Paul Stevens is the oldest member of the Court, 89, and has not hired his full slate of clerks for the next Supreme Court term.

This article also mentioned the possible retirement of Justice Antonin Scalia.  Any vacancy would cause political wrangling in the Senate but a Scalia departure, coupled with President Obama’s liberal record on judges, would result in a judicial and political Armageddon unseen since the days of Judge Robert Bork.

Whatever occurs during the conclusion of this Supreme Court term will surely have major implications for individual rights and the future of our Constitution.

These days, the future of free speech looks grim.  However, the WSJ and FantasySCOTUS predict that the government will lose in the pivotal case of Citizens United v. Federal Election Commission.

Of the 286 predictions, 67 percent believe that the Supreme Court will overrule the D.C. Circuit Court and find that “Hillary: The Movie” is not covered by current campaign finance regulations.  The final verdict: free speech wins.

That’s the good news.  The bad news is that these are just predictions and the longer the Court sits on the opinion, the more free speech suffers.

Read more here, here and here.

Next week, the U.S. Supreme Court will rehear arguments in Citizens United v. Federal Elections Commission, a case that could reverse certain limitations on core political speech imposed by the the 2002 McCain-Feingold law and other chilling precedents.

In an op-ed published today on Human Events Online, CFIF director of public policy Sam Batkins writes:

Citizens United is the first of three cases in which interested court-watchers will have their first opportunity to observe [newly confirmed] Justice Sotomayor and get a better idea of her impact on the jurisprudential leaning of the Court.

In addition to Citizens United, the Court, including Justice Sotomayor, is scheduled to hear other high-profile cases after its term formally begins in October on issues dealing with the Establishment Clause and property rights, among others.

As Batkins notes:

Many court-watchers and scholars have reviewed Justice Sotomayor’s lengthy record as a lower court judge without really being able to predict her judicial philosophy on many of the hot-button issues before the Supreme Court. Soon, however, we’ll all be provided more clarity, at least on issues dealing with property rights, the establishment clause and political speech. 

Read the the entire op-ed here.