Court strikes a blow for free speech and association

In a blow for free speech and association, the U.S. Supreme Court has struck down post-Watergate laws limiting corporate and union spending on political campaigns, including portions of the McCain-Feingold Act that barred groups from spending during the final days of primary and general elections.

The 5-4 ruling came in the case of Citizens United v. FEC, better known as the case of "Hillary: The Movie," because the law stopped Citizens United from airing a negative documentary about Hillary Clinton during the 2008 Democratic primary.

The opinion by Justice Anthony Kennedy removes limits on corporate and union expenditures on political campaigns and issues, but keeps in place limits on direct contributions to candidates.

As is frequently the case, Justice Clarence Thomas wrote that the court did not go far enough in restoring free speech rights.

Thomas wrote: "I dissent from Part IV of the Court’s opinion, however, because the Court’s constitutional analysis does not go far enough. The disclosure, disclaimer, and reporting requirements in BCRA §§201 and 311 are also unconstitutional. ... Congress may not abridge the 'right to anonymous speech' based on the '"simple interest in providing voters with additional relevant information."' ... In continuing to hold otherwise, the Court misapprehends the import of 'recent events' that some amici blacklisted, threatened, or otherwise targeted for retaliation. ... The Court properly recognizes these events as 'cause for concern,' ... but fails to acknowledge their constitutional significance. In my view, Amici’s submissions show why the Court’s insistence on upholding §§201and 311 will ultimately prove as misguided (and ill fated) as was its prior approval of §203.

"Amici’s examples relate principally to Proposition 8, a state ballot proposition that California voters narrowly passed in the 2008 general election. Proposition 8 amended California’s constitution to provide that '[o]nly marriage between a man and a woman is valid or recognized in California.'  ... Any donor who gave more than $100 to any committee supporting or opposing Proposition 8 was required to disclose his full name, street address, occupation, employer’s name (or business name, if self-employed), and the total amount of his contributions. The California Secretary of State was then required to post this information on the Internet. ..."

As a result many supporters of Prop 8 received death threats.

Interesting conundrum. Free anonymous speech vs. public disclosure of government records. Maybe the government shouldn't have that much information about us.

In his dissent Justice John Paul Stevens dredged up quotes from Thomas Jefferson to justify denying corporations the right to free speech, specifically his letter to Tom Logan on Nov. 12, 1816, “I hope we shall ... crush in [its] birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country”.

Stevens wrote that this was proof positive, saying, "The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends. Even 'the notion that business corporations could invoke the First Amendment would probably have been quite a novelty ...'"

Justice Antonin Scalia replied to this line of reasoning thusly: "Of course the Framers’ personal affection or disaffection for corporations is relevant only insofar as it can be thought to be reflected in the understood meaning of the text they enacted — not, as the dissent suggests, as a freestanding substitute for that text. But the dissent’s distortion of proper analysis is even worse than that. Though faced with a constitutional text that makes no distinction between types of speakers, the dissent feels no necessity to provide even an isolated statement from the founding era to the effect that corporations are not covered, but places the burden on petitioners to bring forward statements showing that they are ..."