UVA Lawyer | Fundamental First Amendment Principles

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Citizens United Vindicates Fundamental First Amendment Principles
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Citizens United Vindicates Fundamental First Amendment Principles

by Lillian BeVier

Lillian BeVier Mainstream critics of Citizens United—of which there are many and they are fierce—almost uniformly fail to respond to the most significant aspect of the case, namely the majority’s rationale and Justice Kennedy’s First Amendment analysis in particular. This failure is unfortunate because the case actually vindicates deeply embedded and well-established First Amendment principles. It is true that Citizens United overruled a 20-year old precedent, Austin v. Michigan Chamber of Commerce, so to claim that Citizens United vindicates well-established First Amendment principles may seem like a stretch. But a couple of facts about Austin suggest that it’s not. First, Austin itself was the first case in which the Supreme Court had ever sustained a prohibition of independent corporate spending on speech about political candidates. Confronted with such prohibitions in the past, the Court avoided the First Amendment issue—to the dismay of the liberal Justices, who chided the Court for its failure to reach and to vindicate the First Amendment claim that “reaches the very vitals of our system of government.” Second, and more telling, is the Government’s brief and oral argument in Citizens United, which asked the Court to affirm Austin’s holding but to scrap its rationale. Indeed, by deploying in Citizens United an entirely different line of reasoning from that upon which the Austin Court relied, the Government itself disavowed whatever principle Austin purported to vindicate. The conclusion is inescapable: in overruling Austin, Citizens United reaffirmed the deeply-embedded principles that Austin had repudiated.

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Citizens United rests on a secure First Amendment foundation. What bears repeated and unequivocal emphasis is that the case affirms a particularly valuable species of free speech, namely the freedom to discuss public issues and to debate the qualifications of candidates during campaigns for public office. This freedom is widely acknowledged—except by the case’s critics—to be at the very core of the First Amendment. If the First Amendment protects anything, it protects freedom to engage in political speech. And when speech is protected by the First Amendment, so is spending money to speak.

From what critics have to say, it would be easy to get the impression that there is something dishonorable in corporations’ participation in debate about candidates, or that the case isn’t about speech because it’s only about money. But the Court didn’t protect corporate and union spending on speech about candidates for office because “money is speech.” It protected it because political speech about candidates before an election is a core constitutional value. To prohibit people and organizations from spending money to engage in such speech is the same—indeed, is designed to have precisely the same effects—as prohibiting them from speaking.

A second aspect of Citizens United that bears emphasis is that it reaffirmed the Court’s long-standing distrust of speech restrictions based on the identity of the speaker or the content of the communication. As Justice Powell observed regarding the former kind of restriction: “The inherent worth of…speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” And as Justice Marshall affirmed regarding restrictions based on content: “Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Critics of corporate advocacy claim that it will “distort” elections, presumably because corporate advocacy may persuade citizens to come to different conclusions than they would if corporations were prevented from having their say. In other words, critics endorse restrictions not despite their being based on the identity of the speaker, or the possibility that their speech will persuade citizens, or the content of the speech but rather because the restrictions are so based.

That Citizens United will lead to more corporate and union political speech is a good thing and not a bad one, because robust debate about candidates is a good thing. Corporations are not the monolithic evil enterprises that critics make them out to be, nor do they speak with one voice. Moreover, corporations with the dreaded “vast amounts of money” in their treasuries are, relatively speaking, few and far between, as Justice Kennedy’s opinion documented. Citizens United permits all of them—large and small, for profit and not-for-profit—to present their views of the facts and their opinions about candidates. Apparently the case’s critics do not believe that voters are capable of discerning the wheat of persuasive argument from the chaff of partisan hot air.

A great deal of furor has been expended over Citizens United’s affirmation that corporations have First Amendment rights. But corporations have always had First Amendment rights. Indeed, some of our most significant First Amendment cases have vindicated corporate rights—and not just the rights of media corporations, because the amendment’s shield has never been limited to them. And it would have been a mistake to limit the Constitution’s protections to natural persons: a principal function of the Constitution is to constrain arbitrary government power. The First Amendment prohibits government from suppressing dissent, the Fourth limits government’s ability unfairly to arrest and try alleged wrongdoers, and the Fifth stops government from taking private property for public use without paying compensation. If these amendments did not apply to corporations, the ability of government to act arbitrarily—to suppress dissent, to unfairly arrest and try wrongdoers, to seize private property—would be vastly increased. Tyranny is far more likely to come from the public sector than from the private and the federal government is far more powerful than even the largest private corporation. The corporate form facilitates an endless diversity of productive and charitable activities, and corporations serve as important centers of power separate from government. It would surely be misguided to yield more power to the government by taking from corporations the protection against government arbitrariness and overreaching that the Constitution provides.