The Chance for a Free Speech Do-Over
- From: Nemesis <tehawk@xxxxxxxxxxx>
- Date: Tue, 8 Sep 2009 12:00:32 -0700 (PDT)
http://online.wsj.com/article/SB10001424052970203585004574393250083568972.html
The Chance for a Free Speech Do-Over
Will the Supreme Court finally overturn McCain-Feingold and enforce
the First Amendment?
By THEODORE B. OLSON
Public discussion about the character and fitness for office of
presidential candidates is at the core of the First Amendment's
command that "Congress shall make no law . . . abridging the Freedom
of Speech." Yet Congress, in its zeal to impose onerous campaign-
finance restrictions, has made political speech a felony for one class
of speakers. Corporations and unions can face up to five years in
prison for broadcasting candidate-related advocacy during federal
elections.
Is outlawing political speech based on the identity of the speaker
compatible with the First Amendment? Tomorrow, the Supreme Court will
hear arguments to determine the answer to this question.
The case—Citizens United v. Federal Election Commission—involves a 90-
minute documentary produced by Citizens United, a small nonprofit
advocacy corporation. "Hillary: The Movie" examines the record,
policies and character of the former New York senator, now Secretary
of State, Hillary Rodham Clinton. The documentary was set to be
broadcast during Mrs. Clinton's presidential primary campaign. But the
broadcast was banned when the Federal Election Commission declared
that the broadcast would violate the 2002 McCain-Feingold campaign
finance law.
The government defends this restriction by saying that corporations
and unions are uniquely capable of amassing great wealth and must
therefore be prevented from overwhelming the voices of others during
an election. Relying on a 1990 Supreme Court decision (Austin v.
Michigan State Chamber of Commerce), the government characterizes this
threat as a "type of corruption" on the peculiar theory that such
expenditures do not "reflect actual public support for the political
ideas espoused by corporations." Therefore, the government reasons,
corporate expenditures "distort" the political process and must be
banned.
In crafting McCain-Feingold, Congress acted without proof that such
expenditures have any distorting effect on elections. And it responded
to a nonproblem with a sledgehammer rather than a scalpel. The current
ban on candidate-related speech is not limited to big corporations or
powerful unions. It prohibits election advocacy by all unions and all
corporations, regardless of size. It even criminalizes speech by
nonprofit advocacy corporations such as Citizens United and the ACLU,
which cannot conceivably distort or corrupt the political process.
The government claims the authority to suppress corporate and union
speech not only in broadcast formats but also in books, pamphlets and
yard signs. Put simply, the government's theory is that because
wealthy corporations and unions might speak too much during elections,
all of them must be silenced.
While the law prohibits even the smallest nonprofit groups from
engaging in election advocacy, it exempts wealthy individuals, and it
does not restrict the many advantages of incumbency for sitting
members of Congress. A limitless loophole is also granted to the
media. Thus the corporations that own NBC and ABC (GE and Disney,
respectively), and corporations like The New York Times (or News
Corp., owner of this newspaper), can express whatever views they want
during campaigns.
Loopholes aside, the government's argument that speech may be outlawed
because it does not reflect "public support for the ideas expressed"
is absurd. It is the very antithesis of free speech.
Hard-charging campaign rhetoric is something that the First
Amendment's authors had experienced firsthand. In making the choice
between government-approved, polite discourse and boisterous debate,
the Founders chose freedom. They did not say Congress could enact
finely reticulated restrictions on speech. They said plainly that
there could be "no law" abridging the freedom of speech.
The idea that corporate and union speech is somehow inherently
corrupting is nonsense. Most corporations are small businesses, and
they have every right to speak out when a candidate threatens the
welfare of their employees or shareholders.
Time after time the Supreme Court has recognized that corporations
enjoy full First Amendment protections. One of the most revered First
Amendment precedents is New York Times v. Sullivan (1964), which
afforded publishers important constitutional safeguards in libel
cases. Any decision that determines that corporations have less
protection than individuals under the First Amendment would threaten
the very institutions we depend upon to keep us informed. This may be
why Citizens United is supported by such diverse allies as the ACLU,
the U.S. Chamber of Commerce, the AFL-CIO, the National Rifle
Association and the Reporters Committee for Freedom of the Press.
Persons of modest means often band together to speak through
ideological corporations. That speech may not be silenced because of
speculation that a few large entities might speak too loudly, or
because some corporations may earn large profits. The First Amendment
does not permit the government to handicap speakers based on their
wealth, or ration speech in order somehow to equalize participation in
public debate.
Tomorrow's case is not about Citizens United. It is about the rights
of all persons—individuals, associations, corporations and unions—to
speak freely. And it is about our right to hear those voices and to
judge for ourselves who has the soundest message.
Mr. Olson, an attorney at Gibson, Dunn & Crutcher, will deliver the
oral argument on behalf of Citizens United before the Supreme Court
tomorrow.
.
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