As the New York Times reports, even before the Citizens United decision, 26 states didn’t restrict independent corporate (and, I take it, union) speech about state-level political candidates. This means two things: (1) We should take with a grain of salt claims that Citizens United will substantially transfigure American political life. Unless there’s some reason […]
Archive | Freedom of Speech
Justice White Forcefully Arguing That a Campaign Speech Restriction Was Invalid;
Justice Marshall and Brennan on opposite sides; a lineup of Marshall / Rehnquist / Powell / Stevens / O’Connor versus White / Burger / Brennan / Blackmun; human sacrifice, dogs and cats living together, mass hysteria. See United Steelworkers of America v. Sadlowski (1982), a very interesting case I just ran across.
Liptak on Stevens — A Minor Error and Not-So-Minor Omission
I was not particularly bothered by Adam Liptak’s highly favorable treatment of Justice Stevens in the NYT article David highlights below. Justice Stevens appears to be nearing the end of a long, honorable, and important tenure on the Court. He’s entitled to the occasional puff piece. I was struck less by the uncritical nature of […]
Money and Speech
People continue to characterize the Court’s campaign finance decisions as resting on the theory that money is speech. And of course money isn’t speech. But, as I wrote a few years ago, money isn’t abortion, either. Nonetheless, a law that banned the spending of money on abortion would surely be a serious restriction on abortion […]
Should People Acting through Corporations be Denied Constitutional Rights Because Corporations are “State-Created Entities”?
One of the standard arguments put forward by critics of the Supreme Court’s decision protecting corporate political speech in Citizens United is that people aren’t entitled to constitutional rights when they use corporate resources because corporations are “state-created entities.” If the state can create an entity, it supposedly also has the power to define its […]
Bainbridge, et al. on Citizens United and Corporate Personhood
For those interested in the corporate personhood issue, Professor Bainbridge has several posts on the matter: Citizens United v FEC: The First Amendment Rights of Corporate “Persons” Citizens United, Corporate Personhood, and Nexus of Contracts Theory Citizens United v. FEC: Stevens’ Pernicious Version of the Concession Theory See also this post by Larry Ribstein at […]
Why Restrictions on Corporate Speech Reduce Political Equality
To my mind, the strongest argument for restrictions on corporate speech is that they promote political equality. Unlike the far weaker argument that corporations aren’t entitled to free speech because they aren’t people, the equality argument correctly assumes that corporations are actually just tools used by people. It then holds that restricting the use of […]
Corporate Rights and Property Rights are Human Rights: Why it’s a Mistake to Conflate a Right with the Means Used to Exercise it
In my last post, I explained why it’s a mistake to deny free speech rights to people organized as corporations on the grounds that corporations aren’t “real people.” It’s true, of course, that a corporation is not a person. But the people who own and operate it are. “Corporate speech” is really just speech by […]
Lessened Corporate First Amendment Rights and Media Corporations
Justice Stevens’ dissent in Citizens United argues that corporations should have sharply reduced First Amendment rights, at least when it comes to speech about political candidates. The obvious response, which the majority makes at length, is that this would leave the government free to impose similar restraints on newspapers, magazines, broadcasters, and others, since nearly […]
People Organized as Corporations are People Too
Others, such as senior Conspirator Eugene Volokh, are much better qualified than I am to comment on today’s important free speech decision striking down restrictions on campaign-related speech by corporations. I want to focus on the common claim that corporations aren’t entitled to free speech rights (and perhaps other constitutional rights) because they aren’t “real […]
The Scope of the Ban at Issue in Citizens United
From the majority opinion: The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations — including nonprofit advocacy corporations — either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 […]
Citizens United on the Deterrent Effect of Complex Speech Restrictions
From the majority opinion: The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People “of common intelligence […]
Citizens United on the Second-Class First Amendment Status of Broadcast TV and Radio?
The Court has long treated over-the-air broadcast TV and radio as less constitutionally protected than newspapers, magazines, books, and (in recent years) cable television and the Internet. That’s why the Fairness Doctrine was unanimously upheld in 1969 (in the Red Lion case), and a similar (though narrower) state law for newspapers was unanimously struck down […]
Citizens United
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 […]
Third Circuit Rejects Constitutional Challenge to Revocation of Egyptian-Born Muslim Physicist’s Security Clearance
The case is El-Ganayni v. U.S. Department of Energy. El-Ganayni (a U.S. citizen) alleges that his security clearance was unconstitutionally denied because of his religion and because of his criticisms of the Iraq war and of U.S. foreign policy. The Third Circuit concludes that civilian courts may not review the merits of security clearance decisions, […]