Citizens United—A Renormalization of First Amendment LawJohn O. McGinnis • July 11, 2012 • 11:29 am
[This is the second of four planned posts on Citizens United. The first was Citizens United—The Most Important Decision of the Roberts Court.]
At the root of almost all speech regulations during a political campaign are slogans and distinctions that the First Amendment would never tolerate in areas of social life other than elections. Begin with the mantra beloved of campaign finance reformers: “Money is not speech.” It is used to argue that independent expenditures supporting messages in a political campaign can be regulated. But in the normal course, the First Amendment prohibits regulation of expenditures when that regulation is targeted at speech. Thus, a government restriction targeted at the amount of money a newspaper could spend for investigative reporters would be obviously unconstitutional, as would as regulation targeted at the money that a publishing house could pay to acquire a manuscript. The reasons the First Amendment prohibits such regulations are obvious. To speak effectively one needs resources. The government can successfully suppress speech by aiming its restrictions at the money spent on speech protected by the First Amendment no less than by directly regulating the speech itself.
Citizens United is to be praised for refusing to make distinctions in speech at election time that the Court does not apply in other areas of the First Amendment. One of those distinctions is corporate versus non-corporate speech. In areas other than elections it clear that corporations enjoy speech rights equal to partnerships and individuals. The Metropolitan Museum of Art cannot be told to what art to display or when to display it, even if it is a non-profit corporation. Many famous First Amendment decisions protected the rights of for-profit corporations. New York Times v. Sullivan is the foundation of modern free speech protection against libel actions by public figures, yet the New York Times is a for-profit corporation. The language of the First Amendment does not make distinctions between corporations and individuals. Moreover, the First Amendment’s purpose is well served by permitting citizens to use mechanisms such as corporations for joint action that gives them more effective speech rights.
In dissent, Justice Stevens argues that media corporations may be different because of the protections of the Press Clause. But to make such a distinction would again not accord with First Amendment jurisprudence: the Court has not generally given greater protections to the press. There is good reason for declining to make such a distinction. It would give special privileges to a scribal class to which ordinary citizens do not belong. Why should families like the Sulzbergers and Murdochs who own newspapers have unique authority to offer opinions and endorsements at election time? Moreover, it also is a distinction ultimately not well rooted in the language of the Clause. A corporation outside the media business is using its money to rent the press or its modern equivalent to get its message out. There is no warrant in the First Amendment for privileging owners over renters.
A final example of Citizens United’s renormalization of the First Amendment is its rejection of the claim that corporate speech will permit corporations to wield undue influence. First Amendment law in general does not allow the government to regulate speakers for fear that they will have undue influence in setting society’s norms. It is a hopeless task to decide what influence is undue. Some speakers are more persuasive than others for all sorts of reasons that we may think extraneous to the merits of their argument. The First Amendment is premised on the notion that ordinary citizens will be better at sorting out proper from undue influence than government officials.
Our best guarantee that the government officials, be they legislators or judges, are not manipulating the First Amendment for their own benefit is that they apply its principles in a neutral way. What is most disturbing about campaign finance regulation is the attempt to create a special set of rules for speech at election time. But the danger of government manipulation in favor of particular parties or of groups such as incumbents is obviously greatest in this kind of regulation of speech. For that reason, a court should uphold a departure from these principles only on the most compelling and evidence-based reasons. Citizens United represents a return to core First Amendment doctrine in the very area where the risk of government suppression and manipulation is most likely and where information is most needed.