Reviving the First Amendment

The U.S. Supreme Court hears arguments this week in Citizens United v. Federal Election Commission.  The case features the Federal Election Commission ruling that for the group Citizens United to run its documentary on Hillary Clinton would violate McCain-Feingold.  The decision was a constitutional travesty, since this is precisely the sort of political speech that constitutes the core of the First Amendment.

Theodore B. Olson has given us a taste in the Wall Street Journal of the argument that he will be making before the Court tomorrow:

The idea that corporate and union speech is somehow inherently corrupting is nonsense. Most corporations are small businesses, and they have every right to speak out when a candidate threatens the welfare of their employees or shareholders.

Time after time the Supreme Court has recognized that corporations enjoy full First Amendment protections. One of the most revered First Amendment precedents is New York Times v. Sullivan (1964), which afforded publishers important constitutional safeguards in libel cases. Any decision that determines that corporations have less protection than individuals under the First Amendment would threaten the very institutions we depend upon to keep us informed. This may be why Citizens United is supported by such diverse allies as the ACLU, the U.S. Chamber of Commerce, the AFL-CIO, the National Rifle Association and the Reporters Committee for Freedom of the Press.

Persons of modest means often band together to speak through ideological corporations. That speech may not be silenced because of speculation that a few large entities might speak too loudly, or because some corporations may earn large profits. The First Amendment does not permit the government to handicap speakers based on their wealth, or ration speech in order somehow to equalize participation in public debate.

Tomorrow’s case is not about Citizens United. It is about the rights of all persons—individuals, associations, corporations and unions—to speak freely. And it is about our right to hear those voices and to judge for ourselves who has the soundest message.