High Court Ruling a Victory for Liberty and Free Speech

Guest Column
by Eric Doster

February 1, 2010

According to the First Amendment of the United States Constitution: “Congress shall make no law…abridging the freedom of speech, or of the press…”

Article I, Section 5 of the Michigan Constitution similarly protects the freedom of speech and press: “Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.”

On January 21, 2010, the U.S. Supreme Court ruling in Citizens United v Federal Election Commission reinforced the free speech rights of corporations and labor unions to participate in the political process through independent communications expressly advocating the election or defeat of clearly identified candidates. In the words of the Court:

“Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people…The right of citizens to inquire, to hear, to speak and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment ‘has its fullest and most urgent application to speech uttered during a campaign for political office’…For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence.”

During oral argument in the Citizens United case, attorneys for the government boldly stood before the Court and claimed that the government had the power to ban and impose criminal penalties upon the distribution of a politically oriented movie if, like many movies, it was distributed by a corporation.

Significantly, the government’s claim did not end with the regulation of movies. Government attorneys also claimed to have had the authority to restrict the distribution of books; could prevent a union from hiring a writer to author a political book; and could prohibit a corporate publisher from publishing a 500-page book if it contained even one line of candidate advocacy. Such a position was undoubtedly the basis for the Alien and Sedition Acts in 1798.

In rejecting the government’s tyrannical position, the Court stated: “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.

“When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful.”

In particular, the Court rejected the notion that political speech from a person in corporate form is entitled to any lesser right from other speakers: “Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.”

But not all corporations were subject to the ban on political speech. Campaign finance laws typically contain an exemption for media corporations; consequently, Viacom, which effectively owns CBS News, has free speech rights; Disney, which owns ABC News, has free speech rights; and General Electric, which owns NBC News, has free speech rights. However, other than a few media corporations or conglomerates owning these media corporations, political speech was prohibited. Accordingly, the Court found that these exemptions result in a further, separate reason for finding these prohibitions invalid:

“Again by its own terms, the law exempts some corporations but covers others, even though both have the need or the motive to communicate their views. The exemption applies to media corporations owned or controlled by corporations that have diverse and substantial investments and participate in endeavors other than news. So even assuming the most doubtful proposition that a news organization has a right to speak when others do not, the exemption would allow a conglomerate that owns both a media business and an unrelated business to influence or control the media in order to advance its overall business interest. At the same time, some other corporation, with an identical business interest, but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue. This differential treatment cannot be squared with the First Amendment.”

While there will necessarily be critics who argue that Citizens United v Federal Election Commission will allow corporations and labor unions to unfairly control the political process, the evidence proves otherwise.

In 28 states, representing about 60 percent of the U.S. population, independent expenditures (as allowed in Citizens United) are currently already legal. Significantly, none of these states is known to have a corruption problem due to independent expenditures, or speech about candidates aimed at voters, who are free to accept, consider, or reject the information. As indicated by the Court: “The First Amendment confirms the freedom to think for ourselves.”

Although Citizens United v Federal Election Commission represents a victory for liberty and the freedom of speech, its practical effect will be limited. Remember, Citizens United only allows a corporation or a labor union to make independent expenditures expressly advocating the election or defeat of a candidate; Citizens United does not allow a corporation or a labor union to make direct political contributions to candidates or political parties.

Moreover, the Court upheld the disclosure and identification requirements of the campaign finance laws. Consequently, a corporation or a labor union eager to engage in the Michigan political speech arena has two choices. First, the corporation or labor union may utilize its free speech rights under Citizens United to make an independent expenditure on behalf of a candidate, but be subject to reporting and identification requirements. Or second, it can finance an unregulated “issue ad” which does not expressly advocate the election or defeat of a candidate and not be subject to reporting or identification requirements.

Therefore, it remains to be seen how many corporations and labor unions wish to give up their anonymity or enter the regulatory fray to engage in the political process as now allowed by Citizens United.

As a campaign finance attorney, one would think that I would become tearful over the loss of business that the Citizens United case has now taken away; however, the protection of the First Amendment must come before any selfish interests. Besides, the United States Supreme Court in Citizens United offered comfort to those who crave the regulation of political speech. Specifically, as the Court noted in the Citizens United case:

(a) Campaign finance regulations impose unique and complex rules on 71 distinct entities.

(b) These entities are subject to separate rules for 33 different types of political speech.

(c) The Federal Election Commission has adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975.

Consequently, there will still be plenty of work for campaign finance attorneys like me in the post-Citizens United era.

A former high school valedictorian, cemetery caretaker, librarian, and basketball referee, Eric Doster is one of the state’s leading authorities on election law, campaign finance law, and other laws affecting the political process. He is an attorney in the Lansing office of Foster, Swift, Collins and Smith, P.C. and can be reached at edoster@fosterswift.com. © 2010 Eric Doster.