In a closely watched case involving an opinionated documentary film that was highly critical of Hillary Clinton and her then-current run for the Democratic presidential nomination, the United States Supreme Court rolled back limits on political speech and delivered a resounding victory to First Amendment advocates. The court rejected arguments in favor of a narrow decision that would have preserved many limits on speech, and instead broadly expanded the ability of non-profit organizations, corporations and labor unions to expend resources on political advocacy.
Hillary: The Movie isn’t a subtle exercise in political speech. Produced by the conservative group, Citizens United, the film was a torpedo aimed at Hillary Clinton’s presidential ambitions. The torpedo never reached its goal, having been scuttled by the Federal Election Commission, which called it a violation of the censorious Bipartisan Campaign Reform Act of 2002, a piece of legislation that goes so far as to regulate “electioneering communications” by corporations, unions and non-profits in the weeks before federal elections. Specifically, broadcasting a film like the one at issue here is banned for 30 days before primaries and 60 days before general elections. Newspapers are excluded, as are new media, like YouTube, that were unknown at the time the law was passed.
A lower court upheld the law — and the muzzling of Citizens United — and the case made its way to the Supreme Court. Writing for the majority in the case of Citizens United v Federal Elections Commission (PDF), Justice Anthony Kennedy summarized the extreme nature of the law — and the reason many observers expected at least an incremental win for free speech rights:
The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corpora-tions — including nonprofit advocacy corporations — either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30days of a primary election and 60 days of a general elec-tion. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Associationpublishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Unioncreates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.
Anticipating that the court would role back at leat some of the law’s restrictions, some groups had urged interpretations that would keep at least some censorship in place. These friend-of-the-court briefs called for fairly complex legal needle-threading that would have applied the law in some cases, but not others. Justice Kennedy bought none of it.
The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing re-search, or seek declaratory rulings before discussing themost salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People “of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.”
For the same reason, Kennedy rejected the argument that the existence of highly regulated political action committees provides sufficient outlets for free speech.
The majority decision also rejected the recent trend toward recognizing media companies as a protected class that enjoys special free speech rights denied others.
Ultimately, wrote Kennedy, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
The lower court decision against Citizens United’s right to engage in independent expenditures in order to publicize its members’ opinion of a presidential candidate was, therefore, reversed, although disclosure and disclaimer requirements remain in place. The ultimate decision, overturning pro-censorship precedent and joined in whole or part by Chief Justice Roberts, and Justices Alito, Scalia and Thomas (the last of whom would also would have knocked down diclosure, disclaimer and reporting requirements), was a broader victory for free speech than most observers had expected.
email J.D.: civilliberties (at) tuccille.com
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