The Supreme Court’s opinions in Citizens United v. Federal Election Commission, including the syllabus, are a whopping 183 pages. There are five opinions in all. Justice Kennedy’s opinion for the Court, concurring opinions by Justice Scalia (joined by Alito and Thomas in part) and Chief Justice Roberts (joined by Alito), and opinions concurring in part and dissenting in part by Justice Thomas and Justice Stevens (joined by Justices Ginsburg, Breyer, and Sotomayor). We’ve got a lot of reading to do.
UPDATE: Just a quick summary. The Court held 5–4 that restrictions on independent corporate expenditures in political campaigns are unconstitutional, overruling Austin v. Michigan Chamber of Commerce and parts of McConnell v. FEC, and it upheld the disclosure requirements 8–1 (Thomas dissenting). Justice Kennedy explained that the Court was overruling some of its prior decisions because it was not possible to rule in favor of the petitioners on narrower grounds without chilling protected political speech. According to Justice Kennedy, the Court is re-embracing the principle that a speaker’s corporate identity is not a sufficient basis for suppressing political speech, as held in pre–Austin cases. It would appear this holding applies equally to unions. While disclosure requirements may also burden political speech, Justice Kennedy explained, such requirements may be justified by the government’s interest in ensuring that the electorate has information about spending on elections and campaigns, and the specific disclosure requirements at issue are constitutional as-applied to Citizens United. The opinion also includes a substantial discussion of stare decisis, and why such considerations counseled overturning prior precedents.
FURTHER UPDATE: For some early commentary, see SCOTUSBlog, Rick Hasen’s Election Law Blog and NRO’s Bench Memos.
LAST UPDATE: Just for fun, here are the page counts:
- Syllabus — 7 pages
- Justice Kennedy’s Opinion for the Court — 57 pages
- Chief Justice Roberts’ Concurring Opinion — 14 pages
- Justice Scalia’s Concurring Opinion — 9 pages
- Justice Stevens Opinion Councurring-in-part, Dissenting-in-part — 90 pages
- Justice Thomas — 6 pages
mojo says:
Que Rick Moranis voice: “Everybody got that?”
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January 21, 2010, 10:28 amBZ says:
Important to note what is missing from the MSM coverage:
though premised on the First Amendment, today’s decision applies only to “independent expenditures.” Thus, the First Amendment permits you (even corporations) to speak your own mind, but not to serve as a campaign’s mouthpiece.
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January 21, 2010, 10:33 amBlue says:
“All speakers, in-cluding individuals and the media, use money amassed from the eco-nomic marketplace to fund their speech, and the First Amendment protects the resulting speech.”
Nice line.
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January 21, 2010, 10:34 amTimo says:
Scalia-ites are going to love his concurrence (in which Alito and Thomas (in part) join). He throws a grenade right at the dissent... he clearly had no patience for their inane historical reasoning. Fantastic dissection of a very faulty point of view.
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January 21, 2010, 10:50 amorca says:
Think of all the PAC-running lowlifes who are out of a job because of this.
Almost makes the laughable ruling worth it.
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January 21, 2010, 11:31 amPhatty says:
I thought Roberts did an excellent job in his concurrence of explaining the doctrine of stare decisis.
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January 21, 2010, 11:41 amBZ says:
Probably an overstatement, orca.
There were two warring rationales in CU:
Belloti’s anti-corruption rationale; and
Austin’s anti-distortion rationale.
Anti-corruption says that contributions to candidates/campaigns present a unique danger of quid-pro-quo corruption.
Anti-distortion says that corporate money presents a unique danger of distorting the political discussion.
The majority upheld the anti-corruption rationale, and rejected the anti-distortion rationale. Hence PACs remain. In fact, in a surprise, the Court found that PACs are not corporate speech at all, but are separate associations themselves, which will raise an entirely new set of issues.
Your PAC friends are fine.
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January 21, 2010, 11:41 amChris Travers says:
Score one for the First Amendment!
Question: Given that some forms of media are scarce and that these are regulated by the government due to their scarcity, would it be possible to bar excessive corporate expenditures regarding political speech in these media only?
I.e. a pamphlet is not a scarce resource. An over-the-airwaves TV ad is.
Obviously that is not the issue in this specific act which seems to me to be facially overbroad. I am just wondering about the general principle.
P.S. this opinion is not as bad as I feared in terms of organization. Certainly not bad like McConnel was.....
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January 21, 2010, 12:01 pmVictory For Free Speech : Conservative Compendium says:
[...] Volokh Conspiracy: The Court held 5–4 that restrictions on independent corporate expenditures in political [...]
RPT says:
Do foreign corporations now have unlimited first amendment rights to influence (i.e. purchase) US elections? Is that what this decision includes?
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January 21, 2010, 12:13 pmFub says:
Might not matter. It might be cheaper for them to wait and buy the congressman after the election.
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January 21, 2010, 12:30 pmChris Travers says:
Do permanent resident aliens have a right to enter into the political discourse in this country? If my wife (an Indonesian citizen) wants to go out and knock on doors for a candidate’s campaign, is this Constitutionally protected?
Of course nationality is irrelevant.
However, the law still bans any coordinated speech between corporations and candidates due to the concern you raise. So it is hardly unlimited. Presumably foreign corporations could air their own advertisements. But they can’t ask for feedback (or even permission) from the campaign.
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January 21, 2010, 12:34 pmRPT says:
Chris:
Thanks for the reply. I can distinguish between individuals and corporations, although your comment suggest that the next step might be allowing corporations (born in the UD of course) to run for and hold office.
Do you have any confidence that anyone will enforce any ban on coordinated speech? Who will gather the facts to demonstrate such coordination; the FEC? Political appointees? After the purchased election? The enforcers will be part of the problem. Practically speaking there is and will be no ban. This is of course not a partisan issue, as the corporate democrats like Bayh, Nelson, et al, will just continue to be “corporate lite”.
One can expect to see the already produced corporate ads broadcast shortly, perhaps during the Olympics.
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January 21, 2010, 12:47 pmDilan Esper says:
1. I have no problem with protecting the first amendment rights of corporations. For me, it’s enough to note that most oif the press uses the corporate form. I also agree with the court that you create serious line drawing issues when you say that corporations can speak but they cannot try to speak in an attempt to influence an election.
2. That said, this is not consistent with originalism, and nor is any of the court’s corporate speech doctrines. There is not a shred of evidence that the framers understood the first amendment as guaranteeing the rights of corporations to spend money to influence elections.
I view this as a welcome evolution of the legal doctrine, but I also wish scalia et al would shut their traps about originalism. Like in affirmative action cases, these guys believe in originalism only when it gives them the desired result.
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January 21, 2010, 12:51 pmDavid M. Nieporent says:
Are you saying that you think the framers didn’t believe this, or just that there isn’t evidence they did?
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January 21, 2010, 1:06 pmRPT says:
DMN:
Is your question what did the founders think about modern corporations in the 18th century?
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January 21, 2010, 1:10 pmToday's Tom Sawyer says:
Well, since you’re making the affirmative claim here, why don’t you show me where the Founders said that the first amendment does not guarantee the rights of corporations to spend money to influence elections?
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January 21, 2010, 1:34 pmShelbyC says:
Well, that’s only true if you believe that restricting the rights of corporations doesn’t restrict the rights of individuals, correct?
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January 21, 2010, 1:38 pmRPT says:
TTS: Look in the same records where the founders discussed airplanes, television, the internet and the internal combustion engine. Is this argument more subtle than it appears?
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January 21, 2010, 1:39 pmJeff R. says:
Most organs of the press are incorpoarted, are they not?
The idea that some corporations are more equal than others would surely be repugnant to the idealized ‘framers’ (since the actual, historical opinions of the constitutional conventioneers and the radical republicans are clearly not what is being talked about here...)..
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January 21, 2010, 1:47 pmDilan Esper says:
The First Amendment was originally understood as barring prior restraints, i.e., press licensing schemes or governmental orders that someone not speak. That’s it. Indeed, I rarely cite Bork, but his article on Neutral Principles And Some First Amendment Problems spells this out pretty well.
I think the expansion of the First Amendment past its originalist moorings is an important and useful development in our society. And once you do that, yes, you have to protect the rights of corporations, because otherwise it prevents individuals from pooling their resources to speak in the mass media.
But none of that is originalist. The mass media didn’t exist in 1791, and the First Amendment wasn’t understood to apply to regulatory schemes that imposed some subsequent punishment for speech, much less to schemes that did so when a corporation was doing the “speaking”.
This is a perfectly good application of modern First Amendment doctrine, dealing with the pragmatic obstacles to imposing limits on corporate speech relating to electoral politics.
The fact of the matter is that while originalism is valid as one of many ways of interpreting the Constitution, the way it is presented by movement conservativism to the public (i.e., as the sole and controlling legitimate means of interpretation) is a big lie. If originalism doesn’t get the conservative justices the result they want, it goes out the window, just as it does with everyone else.
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January 21, 2010, 1:49 pmPop Some Popcorn: We Finally Get To See The Hillary Movie « Around The Sphere says:
[...] Jonathan Adler [...]
Today's Tom Sawyer says:
I see what you did there. You know what the difference your list and corporation money and speech is? The Founders had experience with money and large business (well, they weren’t modern corporations, but they were guilds and companies), so the problem of buying elections is definitely cognizable in 1787 (I mean, how many principalities and thrones were bought and sold in history? Roman senators deal with the money of organized business interests.) So by not explicitly excluding something cognizable, I think that the argument for originalism is satisfied that they did not intend to make that speech limitation, as opposed to your modern developments of which there could have been no cognization thereof.
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January 21, 2010, 1:57 pmMike B. says:
I’m not at all enlightened on this matter, so I thought I would ask this question at the risk of looking stupid:
Anyone have any thoughts on whether Congress (though I think that it might have to come more from state law) could theoretically re-word some of the laws pertaining to corporations so as to explicitly state that “corporations are not people” or something along those lines? I’m only familiar with these cases from what I learned in First Amendment law (from Conspirator Carpenter) so I don’t really understand the foundation of the idea that corporations have First Amendment rights.
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January 21, 2010, 2:08 pmDilan Esper says:
The Founders had experience with money and large business (well, they weren’t modern corporations, but they were guilds and companies), so the problem of buying elections is definitely cognizable in 1787 (I mean, how many principalities and thrones were bought and sold in history? Roman senators deal with the money of organized business interests.)
And so long as no licensing scheme was imposed on them and no order was made that they not speak, the framers did not understand the First Amendment as barring regulatory measures that imposed subsequent punishments, such as fines, on such guilds and companies, for the alleged harm caused by their speech.
This really isn’t disputable– there’s a bevy of writings at the time the Bill of Rights was adopted about the First Amendment and prior restraint. Many of the same folks who ratified the First Amendment supported the Sedition Act, which they understood as not being barred by the First Amendment because it imposed a subsequent punishment on speech only after due process.
Robert Bork– who took his premises to their logical conclusion– was quite clear and persuasive in showing what the original understanding of the First Amendment is. The First Amendment is exhibit A in the case for a living constitution.
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January 21, 2010, 2:11 pmShelbyC says:
Isn’t a ban on electioneering communications a prior restraint?
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January 21, 2010, 2:14 pmDilan Esper says:
No, Shelby.
A prior restraint is either a licensing scheme (Bantam Books v. Sullivan) or a court injunction against speech (New York Times v. United States).
A statutory ban is not a prior restraint but instead authorizes subsequent punishment. The framers were cool with subsequent punishment, because it came after a hearing and due process.
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January 21, 2010, 2:24 pmCJColucci says:
Will this open a can of worms about the First Amendment rights of shareholders who object to their corporation’s political spending, similar to the can of worms now squirming around the First Amendment rights of objecting union members?
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January 21, 2010, 2:30 pmChris Travers says:
There are a couple issues here. First, Jefferson believed the Alien and Sedition Acts to be Unconstitutional on both first amendment and enumerated power grounds. The acts however were repealed shortly before Marbury v. Madison was decided so no legal challenge was made. However there was not a general consensus on this issue. Indeed they were repealed because they were widely unpopular and widely believed to be Unconstitutional.
Furthermore, I think there is an open ended question here as to whether the First Amendment was initially intended to conform to the common law bad tendencies test (endorsed by the Supreme Court briefly at the end of the 19th century) or whether it was intended to have more teeth (for example, Holmes’ “clear and present danger” test which superseded it). For example, it isn’t clear to me whether a federal law against interstate commerce involving blasphemous literature would have been Constitutional, or whether it would have been limited to more immediate and dangerous problems.
It is clear that first amendment rights are recognized to a greater extent than any of the Framers imagined. But it is far from trivial to figure out what individual Framers actually imagined it to be.
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January 21, 2010, 2:54 pmPubliusFL says:
Right, because the Sedition Act wasn’t controversial at all.
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January 21, 2010, 3:07 pmDilan Esper says:
There are a couple issues here. First, Jefferson believed the Alien and Sedition Acts to be Unconstitutional on both first amendment and enumerated power grounds.
This is something of an oversimplification. It’s probably more accurate to say that Jefferson’s party was the target of the Sedition Act and took the position that it was unconstitutional. Jefferson didn’t draft the First Amendment (Madison did) and certainly never expressed that he thought it would apply to laws and legal doctrines, such as libel laws, which imposed subsequent punishment on speech. (Indeed, the Sedition Act was structured as a libel law, prohibiting false statements about the government, precisely because it was universally understood that libel laws were not called into question by the First Amendment because they imposed subsequent punishemnts.)
Read Bork’s article. As I said, the original intention of the First Amendment as applying to prior restraint isn’t even close to being a disputed fact (and you will notice Stevens points this out and Scalia doesn’t respond to it in today’s opinions).
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January 21, 2010, 3:09 pmJeff R. says:
I think that any useful conception of “the framers” has to go beyond the founding fathers, at the very least to the Radical Republican Congress to be able to talk about the 14th Amendment.
In practice, I think that a lot of ‘originalists’ are paradoxically and silently adding to “the framers” the members of the Warren Court as well. (Which gets you desegregation, Miranda warnings and indigent counsel, and, most relevant to this discussion, chilling effects) While logically incoherent that approach seems to my gut to be almost precisely correct...
If only there were a philosophically coherent way to arrive at that same approach (in a manner that gives you the Warren decisions while leaving those of the courts before and after considerably less sacrosanct...)
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January 21, 2010, 3:26 pmCampaign Finance Decision Out | Snowflakes in Hell says:
[...] some expert opinion on the matter, see SCOTUSBlog, Volokh, and the Election Law [...]
grog says:
Anyone want to guess what this means for restrictions on churches who (currently) accept tax concessions in return for avoiding political advocacy?
After this, I would be extremely surprised if a challenge weren’t soon to be headed through the courts, if there isn’t one there now.
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January 21, 2010, 3:33 pmArthurKirkland says:
If Congress eliminated every tax advantage provided on the basis of religion, I would welcome the change. Churches could then speak — or sink, or swim — on the merits.
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January 21, 2010, 4:21 pmH Bramlet says:
Mr Dilan Esper–
Scalia responds to this criticism in his piece. We don’t know whether Scalia’s mindset would have lead him to overturn the idea of Prior Restraint because the court didn’t address those questions in this opinion.
At question was to whom the Freedom of Speech (as held by the courts) ought to apply. The question was not whether or not the Court’s understanding of these freedoms was correct, but whether it was acceptable to change its application based on the identity of the speaker.
Now maybe Scalia would prefer to bring us back to the original Framers’ intent for what Freedom of Speech entails, but I doubt he’d have gotten a 5 person majority in that case.
Scalia believes (according to his response to Stevens) that there is ample evidence for Framers being identity agnostic here. Whether those speakers ought to have additional freedoms or fewer is not addressed.
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January 21, 2010, 4:24 pmDilan Esper says:
Bramlet:
“Identity of the speaker” proves too much. The Court has upheld greater speech restrictions on students, prisoners, government workers, and a plethora of other categories of speakers, all with Scalia concurring (or arguing the Court didn’t go far enough in suppressing free speech rights), and none with Scalia making originalist arguments that the identity of the speaker doesn’t matter.
Indeed, Scalia’s violating his own level of generality analysis with respect to historical tradition (see Michael H. v. Gerald D.) by not using the most specific level of generality to describe the tradition at issue (i.e., whether regulations of corporate speech concerning an election were historically permissible).
Again, none of this is to say Scalia is wrong in Citizens United– I happen to think that Scalia is right and Stevens is wrong on the constitutional issue (even though I think that Stevens is probably right in terms of his policy analysis). It’s to point out that originalism is just one tool in the toolkit and that the grandiose claims of some of its advocates are BS. Any committed originalist would have decided Citizens United by saying that since the expansion of the First Amendment to subsequent punishments was incorrect, there was no basis for further expanding it to corporate speech about elections. (Scalia has done this in other areas of the law.) But the five justice majority loves them some corporate speech, so they are going to protect it. Fine, but not originalist.
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January 21, 2010, 4:36 pmShelbyC says:
Do churches pay different taxes than other non-profits? Or to put it another way, does anybody’s tax liability ever hinge on whether or not they worship a supreme being?
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January 21, 2010, 4:38 pmDon Miller says:
I always thought this law was always about prior restraint of political speech.
This law limited the number of people who could speak about election issues for 30 days prior to the election. It was never about the money. The money was a smoke screen. It was about limiting speech.
From the text of the First Amendment:
I don’t see the harm in laws that regulate disclosure of who is doing the speaking, but everyone has the right to say what they want. If some people (or corporations) can afford to purchase a bigger stage than others, too bad. If that is how they want to spend their money, it is their right.
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January 21, 2010, 4:51 pmPubliusFL says:
Of course, Madison himself also thought that the Sedition Act was unconstitutional. He wrote the Virginia Resolution while Jefferson wrote the Kentucky ones.
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January 21, 2010, 4:56 pmH Bramlet says:
Mr Dilan Esper–
I don’t understand your reasoning. Now you are whipping out other cases to say that Scalia is differing from them. Maybe, or maybe not. But that is irrelevant. The question is whether their decision HERE AND NOW can be based on the originalist argument.
Scalia argues that The First Amendment was written as speaker agnostic. And, honestly, it seems pretty silly to disagree. “Congress shall make no law...abridging the freedom of speech”. Note that it doesn’t say “abridging the peoples freedom to speak,” or something similar.
Again, the extent of these freedoms doesn’t matter (for the purpose of this case).
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January 21, 2010, 4:59 pmCornellian says:
In honor of the decision, all politicians will henceforth be required to walk around wearing the logos of their corporate sponsors, much like NASCAR drivers.
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January 21, 2010, 5:06 pmDilan Esper says:
I always thought this law was always about prior restraint of political speech.
You might have thought that, but a law prohibiting certain types of speech and subjecting its violators to subsequent punishment is not a prior restraint under governing precedent and would not have been considered one by the framers of the First Amendment.
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January 21, 2010, 5:08 pmDilan Esper says:
I don’t understand your reasoning. Now you are whipping out other cases to say that Scalia is differing from them. Maybe, or maybe not. But that is irrelevant. The question is whether their decision HERE AND NOW can be based on the originalist argument. Scalia argues that The First Amendment was written as speaker agnostic. And, honestly, it seems pretty silly to disagree.
Bramlet:
Scalia believes, like the other 4 justices in the majority, that the most workable and speech protective First Amendment rule permits corporations to speak about electoral issues.
Scalia, however, knows that he has boxed himself into a corner on the primacy of originalism and further knows that there isn’t any particular originalist interpretation of the First Amendment that would lead to his favored rule.
So he came up with an argument that is completely inconsistent with what he has said in prior cases, as a fig leaf against criticism that he is not being a consistent originalist.
Why is this so difficult for you to understand?
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January 21, 2010, 5:11 pmgrog says:
Churches are one type of entity granted 501(c)(3) tax exemption, grouped with a bunch of other (but not all) nonprofit entities, like the Boyscouts, the Red Cross, and PTAs.
Entities in the 501(c)(3) category risk losing tax exempt status if they lobby or endorse/oppose candidates.
(My personal view is that choosing to be classed as a particular type of entity, thus choosing to accept the restraints imposed on that category, should preclude first amendment claims — they weren’t forced to trade, e.g., endorsing candidates for tax exemption, and they are free to change their taxation classification if they want. But then, I would have thought the same thing about incorporating.)
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January 21, 2010, 5:12 pmShelbyC says:
Sounds kinda crappy.
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January 21, 2010, 5:29 pmgrog says:
Why? Would you prefer a situation where I can create the Church of My Opinions so that I can avoid taxes on money I use to lobbying for things I approve of?
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January 21, 2010, 5:36 pmDon Miller says:
Well, now the Supreme Court says it is prior restraint. So I guess the people that think like I do are right and you are wrong.
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January 21, 2010, 6:01 pmleo marvin says:
I haven’t given this much thought, but is it really inconceivable that if the First Amendment didn’t protect corporations, individuals who wanted to pool resources in mass media vehicles for political speech would do so without the benefit of limited liability?
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January 21, 2010, 6:04 pmRPT says:
Sen Imhofe already does this.
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January 21, 2010, 6:18 pmSebastian H says:
“You might have thought that, but a law prohibiting certain types of speech and subjecting its violators to subsequent punishment is not a prior restraint under governing precedent and would not have been considered one by the framers of the First Amendment.”
But the First Amendment didn’t protect only against your legal concept of prior restraint.
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January 21, 2010, 6:23 pmDilan Esper says:
Well, now the Supreme Court says it is prior restraint.
No, they didn’t. They said it was unconstitutional as a subsequent punishment, under the Court’s prevailing doctrine (which I agree with) that substantive punishments of speech can be unconstitutional.
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January 21, 2010, 6:25 pmDilan Esper says:
I haven’t given this much thought, but is it really inconceivable that if the First Amendment didn’t protect corporations, individuals who wanted to pool resources in mass media vehicles for political speech would do so without the benefit of limited liability?
You can make this argument, but it begs the question, because then the issue is simply re-stated as “can the government condition limited liability on individuals giving up their associational speech rights?”.
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January 21, 2010, 6:26 pmDilan Esper says:
But the First Amendment didn’t protect only against your legal concept of prior restraint.
You need to re-read the thread. I know that and agree with the modern doctrine.
But an ORIGINALIST interpretation of the First Amendment certainly would not preclude laws that provide for subsequent punishment of speech relating to elections by corporations.
My problem isn’t with this case, which I think is rightly decided. My problem is with the fig-leaf claims of originalism, and more broadly, with the lie propogated by the conservative movement that originalism is the only legitimate means of constitutional interpretation.
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January 21, 2010, 6:28 pmleo marvin says:
If you read the top comment again I think you’ll see there’s no question to beg. I was questioning your reason for supporting corporate personhood and speech rights. I wasn’t arguing that either of the doctrines themselves is invalid. That’s for people like you, EV and others who have actually read the cases to argue over.
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January 21, 2010, 7:30 pmChris Travers says:
The ideas surrounding general libel penalties notwithstanding, what do you think the Framers’ views of seditious libel laws were under colonial rule?
Furthermore, when one looks at the Framers, my understanding is that it is proper not only to look to those who drafted the amendment but to those who passed and ratified it as well. I would argue that the fact that the Sedition Act was not renewed in 1801 was that there were great doubts about its constitutionality.
Finally one could see an argument that the Sedition Act was constitutional at that time solely because of the US fighting a quasi-war against France (the same sort of balance that allowed the court to uphold a later Sedition Act during WWI).
In short I am not sure that it CATEGORICALLY allowed all laws providing penalties in arrears.
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January 21, 2010, 7:41 pmleo marvin says:
In case that’s not clear, I was questioning your premise that individuals would indeed be prevented from pooling their resources to speak in the mass media if corporations didn’t have protected speech rights. I suggested they could do it by organizing as non-corporate entities, and bear the liability individually. The financial exposure would be significant, but presumably insurable. It might make for-profit mass media news ventures impossible, but I’m not sure they’re possible anymore anyway.
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January 21, 2010, 7:46 pmChris Travers says:
(From everything I have read, Madison thought the Sedition act was Unconstitutional, and that seditious libel was one of the things the first amendment was designed to prevent. Ordinary libel, OTOH, might be a different thing.)
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January 21, 2010, 7:49 pmShelbyC says:
Why wouldn’t that be better then a situation where you could create a Church of Your Opinions where you can avoid paying taxes as long as you didn’t lobby for things you approve of? Isn’t the principle that your tax bill shouldn’t depend on whether or not you engage in political speech pretty important to the first amendment?
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January 21, 2010, 7:50 pmDilan Esper says:
The ideas surrounding general libel penalties notwithstanding, what do you think the Framers’ views of seditious libel laws were under colonial rule?
They may or may not have liked them, but it’s perfectly clear that they did not understand the First Amendment to preclude subsequent punishments for seditious libel. (Again, the article to read on this is Bork’s. He lays it all out.)
And you have to distinguish what Democratic-Republicans said about the Sedition Act, which was used to target members of their party, from what they said about the subject of prior restraint vs. subsequent punishment while they were still under a Rawlsian veil of ignorance in 1791.
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January 21, 2010, 8:09 pmChris Travers says:
What did Madison write about the Sedition Act?
(Here is one example...)
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January 21, 2010, 8:14 pmChris Travers says:
BTW, the more I read about Madison’s views on the Sedition Acts, the more I think jurisprudence on the First Amendment has progressed towards, and only slightly beyond, his intent in drafting it. In essence, I think Yates v. United States was pretty close to his thinking.
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January 21, 2010, 8:42 pmgrog says:
Why wouldn’t that be better then a situation where you could create a Church of Your Opinions where you can avoid paying taxes as long as you didn’t lobby for things you approve of?
Because the tax exemption was created to be a haven for churches, presumably on the notion that they create a public good by existing. If I create a “church” that does little other than lobbies, I am not creating that good. So, we’re left with one of three outcomes:
— Allow anyone who can follow a set of tax rules to funnel political money through what is now a tax loophole,
— Have the IRS decide who is and isn’t a church, causing constitutional problems there (and even if something workable way to do that might be found, don’t think there won’t be a huge political stink made about whatever rules are determined, assuring that it becomes politicized),
— eliminate the exemption for churches that actually, you know, do church things more or less as was anticipated.
And of course, this doesn’t apply only to churches, that’s just the most controversial type of entity that might begin, ahem, rendering unto Caesar a bit more enthusiastically. The issue would apply as well to PTAs or boy scout troops or another entity covered by the same rule.
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January 21, 2010, 8:44 pmSCOTUSblog » Citizens United v. FEC Round-up says:
[...] with a specific political campaign, they can directly buy ad time to support a candidate.” The Volokh Conspiracy also covers the decision, as does NPR. For further coverage, and relevant documents in the case, [...]
Andrew Hamilton says:
Please forgive an amateur for butting into this argument about originalist meaning of the First Amendment, but I have some questions. Wasn’t the Zenger case an American common law precedent for the First Amendment? Couldn’t Zenger’s publication of articles the Crown considered libelous be considered a form of corporate speech, inasmuch as Zenger himself was only the employee of New York merchants who hired him to publish their views? Didn’t the jury’s finding that the speech was not libelous overturn “a law prohibiting certain types of speech and subjecting its violators to subsequent punishment” as well as precedents upholding the right of the court to find the speech libelous? How can it then be argued that the authors of the First Amendment were ignorant of the basic issues presented in Citizens United?
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January 21, 2010, 10:30 pmCitizens United Links | Tech News says:
[...] The Volokh Conspiracy » Blog Archive » Citizens UnitedThe Supreme Court’s opinions in Citizens United v. Federal Election Commission, including the syllabus, are a whopping 183 pages. There are five opinions in all. Justice Kennedy’s opinion for the Court, concurring opinions by Justice …Read more [...]
Dilan Esper says:
Chris:
Madison wrote that AFTER the Sedition Act was passed. That was a partisan document. Just like the GOP now claims Obamacare is unconstitutional, the Democratic-Republicans argued that the Sedition Act, which targeted members of their own party, was unconstitutional.
But EVERYTHING SAID AT THE TIME THE FIRST AMENDMENT WAS DRAFTED WAS TALKING ABOUT PRIOR RESTRAINTS. Again, read Bork. He nails it cold, and nobody really argues with him.
Andrew:
The framers certainly wanted juries to determine libel cases. Indeed, most originalists concede quite readily that New York Times v. Sullivan is non-originalist.
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January 21, 2010, 11:10 pmTokyoTom says:
In this case the question conflates the states which approve corporate status with the federal government, but why would such a question prove difficult? The federal government provides tax exemptions to religious and other groups on the express condition that they refrain from political speech.
It doesn‘t take much digging to see who profoundly the grant of limited liability to corporate shareholders has snowballed into the massive struggles for favor and regulation that we see today. The decisions that corporations (as opposed to those who own and staff them) have Constitutional rights has greatly contributed to this. (Likewise, the federal income tax has also perversely entangled the state in relgious organizations and political speech.)
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January 22, 2010, 1:12 amPubliusFL says:
But Bork also characterizes the kind of law at issue here as a prior restraint:
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January 22, 2010, 10:37 amFriday Highlights | Pseudo-Polymath says:
[...] Unhappy about free speech. Here’s the salient question those M/F backers won’t answer. More here. [...]
Stones Cry Out - If they keep silent… » Things Heard: e102v5 says:
[...] Unhappy about free speech. Here’s the salient question those M/F backers won’t answer. More here. [...]
Lochgelly says:
The bottom line is that money does NOT equal free speech. It blows my mind that a decision can make this connection without any real discussion...it is simply accepted.
Anyone with common sense knows that money for political campaigns from a corporation is not free speech...it is bribery....period.
The fact that these globabl corporations have manipulated our Supreme Court and that they can now control elections smacks of the worse political skullduggery that has ever existed in America.
As a lawyer, I am ashamed of our legal system.
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January 22, 2010, 1:13 pmDilan Esper says:
Publius:
Bork now is being a hack (as I note above, this law does not constitute a prior restraint under current law). Bork in 1971 was a much better scholar.
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January 22, 2010, 1:40 pmFor Free Speech & Against Incumbent Protection « KELOLAND.com | Issues Blogs says:
[...] is a summary of Citizens United v. FEC, from The Volokh Conspiracy: The Court held 5–4 that restrictions on independent corporate expenditures in political [...]
Chris Travers says:
Um... you realize the court was talking exclusively about entirely independently created messages, right? It might be a tool of intimidation but I am not sure it would be a tool of bribery per se.
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January 23, 2010, 4:16 pmTokyoTom says:
Dilan, did you miss my response to your point?
If Congress can Constitutionally limit the speech of people who choose to associate as non-profit churches etc., why cannot it likewise limit the speech who choose to accept the favor of a state grant of limited liability?
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January 24, 2010, 9:53 pmwvufan says:
We should be willing to accept whatever horrible consequences the dissenters anticipate if they accurately reflect the radicalism of the First Amendment and the Revolution in which its concepts played an important role (and, of course, if we are still committed to that radicalism).
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January 26, 2010, 12:30 pmJohn Dewey says:
The discussions about whether corporations have the rights of people and about whether the Founding Fathers could have considered corporations — is any of this relevant?
The First Amendment protects a citizen from a powerful government which would decide what speech the citizen would be allowed to read or hear. It’s not a right granted to a speaker, but a right granted to a listener or reader. As such, it makes no difference whether the speech being protected comes from a single person, a non-profit organization, a union. a church, or a corporation. It is not the speaker but rather the speech — and the right of the citizen to hear it — which is being protected.
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January 26, 2010, 5:33 pmTokyoTom says:
John, I disagree. The First Amendment is about the peoples‘ rights to gather and to speak privately and publicly, including reporting on government.
Corporations are not people — but legal fictions that are creatures of their owners and the State, which protects their owners by giving them a special grant of limited liability. Corporations may parrot the words of particular people with in the firm, but they, like parrots, are not people and do not “speak” themselves. (Actually, this is unfair to parrots and other animals, which deliberately attempt to convey meaning to others, and not as a sock puppet for another person/animal/entity.)
While I‘m no fan of corporate income taxes, just as the federal government can condition “non-profit” status on a waiver of political speech rights by churches and other forms of legal entities, so states condition the grant of corporate status on the owners‘ acceptance that they cannot use the corporation as a political mouthpiece (such a use could be made expressly ultra vires), and so should states and the federal government be able to limit or tax political speech by corporations.
Not only would this be good law, but in my view entirely good policy by doing much to slow rent-seeking via large corporations, by removing incentives for wealthy investors to influence public officials and public debate. Let the rich (and others) speak for themselves anonymously if they choose, but we can and should stop the money-laundering of speech through corporations.
The Roberts court showed it didn‘t have the strength of its convictions by upholding the part of McCain-Feingold that mandates disclosure of who is funding speech — in my view, this is incorrect. Anonymous speech very much SHOULD be allowed, but only for individuals and organizations that have not been granted limited liability by the state.
The chief sticky side issue here is the political gagging of churches and NGOs arising from the desire for favorable tax treatment.
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February 2, 2010, 9:48 pmSupreme Court, others confused about "speech" because they ignore (1) that corporations are not themselves persons, but creatures of the state - TT`s Lost in Tokyo says:
[...] I have commented on these points in a blog thread at the libertarian/right-leaning legal blog, The Volokh Conspiracy. [...]
Supreme Court, others confused about "speech" because they ignore (1) that corporations are not themselves persons, but creatures of the state - TT`s Lost in Tokyo says:
[...] January 24, 2010, 9:53 pm [...]
John Dewey says:
Tokyo Tom,
Sorry, Tom. You can disagree with me, but the majority on the U.S. Supreme Court agrees with me. Justice Scalia made it very clear that the First Amendment protects not speakers but rather speech:
“The Amendment is written in terms of “speech,” not speakers. Its text offers
no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals”
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February 3, 2010, 10:25 amTokyoTom says:
John, I‘m quite aware of what the court has held, but they‘re clearly missing a very obvious distinction: for Constitutional purposes PEOPLE “speak”, not animals or other things. A corporation is certainly an association of individuals, each of whom has his own right to speak. But a corporation is a THING, legally distinct from its owners. Does a corporation speak for itself, or for others — who bear no liability for any false, tortious or criminal speech?
Further, corporations are creatures of the state, so the state has the right to determine their powers. Just as the Rehnquist court held that the government can gag doctors at clinics that accept federal aid, and just as the government still gags churches and other groups that want federal non-profit tax status, so can the state limit the right of owners of corporations to speak through them.
This should be an easy issue, but the Court obfuscates by comparing stated-created corporations, whose owners have received the special privilege of not being liable for any acts of the corporation, with “single individuals to partnerships of individuals, to unincorporated associations of individuals”, none of which is an artificial, statutorily-created entity with rights or obligations in excess of those of their owners.
If the Court had held that corporations are things — not “persons — and thus do no utter “speech” for purposes of the First Amendment, this would not at all affect the ability of any class of real, live human being associated with them to speak. Employees, managers and owners could all speak individually, or form groups for doing so.
The Court‘s decision here is completely wrong-headed.
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February 3, 2010, 12:32 pm