Citizens United vs. FEC: Misunderstood

Update: Jan 2012:
Here's Cato's view: Citizens United at Two .

Here's my view:

I'm getting tired of hearing people - usually smug liberals - ridiculing the Supreme Court's Citizens United decision over the notion that "Corporations are People too". Anyone who thinks this about Citizens United simply doesn't understand the US Constitution or the case.

If we read what the 1st Amendment actually says, it's clear that the Supreme Court got this one right. The pertinent text:

"Congress shall make no law ... abridging the freedom of speech, or of the press ..."

It doesn't mention corporations, people, or individual rights. It simply says Congress can't pass laws abridging freedom of speech or press. There are no modifiers or exceptions.

There is no mention of who is doing the speaking, or who owns or operates the press. Who is doing the speaking and who owns or operates the press doesn't matter. Congress (and thus the Federal Government) simply does not have the power to abridge.

It is stated as a blanket limitation on government power, not as an assertion or recognition of rights. Thus, whether there is any individual right, and if so whether that right pertains to people or corporations, is immaterial.

In other words, the government cannot pass any law abridging the freedom of speech or the press. The McCain Feingold Act is a law that abridges freedom of speech and the press. Thus it violates the Bill of Rights. It simply doesn't matter whether it is people or corporations who are exercising their speech and press.

Turning this into a question of rights inverts the issue and creates several problems.

  • It weakens the Bill of Rights by watering down an absolute prohibition of government power. It allows that the government can abridge speech and the press, under certain conditions.
  • It creates thorny new problems. The New York Times, CNN and most other newspapers and media outlets are corporations. Can the government gag them? If not, why not?
  • If some corporations are protected and others are not, who is to decide which is which? The lines between citizens, bloggers, journalists, and which corporations represent "media" or "news" are inherently fuzzy.
  • Corporations are legally recognized voluntary associations of individual people. What kind of insanity is it that says individual people have the right to free speech and press, yet when they form voluntary associations they lose that right?

    • One irony is that most of the people who contest this decision see themselves as civil rights supporters. But the reality is that their position weakens our civil rights and grants government the power to decide who can speak and who will be silenced. Anyone who truly values freedom and liberty should favor broad, strong interpretations of civil rights over narrow, weak ones.

    Another irony is the justices behind the decision and the dissent. The justices who most strongly supported our civil rights in the decision authored by Kennedy are Roberts, Alito, Scalia, and Thomas. The justices who would weaken the 1st Amendment and grant government the power to decide who can speak and who cannot, were Stevens, Ginsburg, Breyer and Sotomayor.

    Of course, I understand why those that decided against Citizens United did so. They were afraid that corporations have enough influence and money to sway the masses. But the irony is, that is the entire point of freedom of expression: to voice our opinions in order to influence others. One of the prices of freedom and representative government is that we must trust people to be responsible enough to see different opinions and make a good decision most of the time. If we can't do that, we might as well have dictators. What we should never do is weaken freedom of expression for everyone because we don't like how some people or groups will exercise it.

    Our Founders had the wisdom to avoid these quibbles. They drafted a protection of freedom of speech and the press that is absolute and simple. Fortunately, a majority of our Supreme Court Justices recognize that.