Thursday, January 21, 2010

Free Speech 1, Tyranny 0

Today the Supreme Court of the United States has reversed itself yet again to allow incorporated groups to use political speech even days before an election. The Citizens United v. FEC case decision came down today, and it is great news.
James Madison Center for Free Speech
1 South 6th Street
Terre Haute, IN 47807

January 21, 2010

Contact: James Bopp, Jr.
Phone: 812/232-2434; Fax 812/235-3685

U.S. Supreme Court Embraces First Amendment in Case About Hillary: The Movie
Today, in Citizens United v. FEC, the U.S. Supreme Court protected the First Amendment right of citizen groups to engage in political speech, even if they choose the protections of incorporation. The case involved the ability of Citizens United to broadcast Hillary: The Movie.

The Court held that there is no corruption in assuming the corporate form, so incorporated groups could no more be prohibited from broadcasting their political speech than other citizen groups. The Court reversed its holding in Austin v. Michigan State Chamber of Commerce (1990) that “corruption” based on adopting the corporate form justified prohibiting corporations from expressly advocating the election or defeat of federal candidates. And it reversed its holding in McConnell v. FEC (2003) that corporations could be prohibited from making “electioneering communications” (broadcast communications that merely mention candidates near elections). As a result, many campaign finance laws—those based on rejected corporate-form “corruption”—are unconstitutional. The only corruption that can justify campaign-finance regulation is quid pro quo, i.e., votes for favors. The Court decided that Citizen United could be required to put required “disclaimers” on their electioneering communications and report expenditures for them.

James Bopp, Jr., who has litigated numerous campaign-finance cases, makes the following statement concerning the case: “We are pleased that the Supreme Court has reaffirmed the First Amendment right of citizens to participate in political speech. The Court guards the people’s self-government right to associate and speak, safe from incumbent politicians who dislike criticism and would silence it if permitted. This case reaffirms that the people are sovereign and require broad protection for their liberty to engage in political speech.”


Citizens United is a nonprofit (§ 501(c)(4)) Virginia corporation founded in 1988. Among other activities, Citizens United produces movies. Some of its documentaries have won awards.

In late 2007, Citizens was preparing a feature-length (90 minutes) documentary, Hillary: The Movie. Citizens produced three ads to promote the movie. It filed suit because the ads would be broadcast during electioneering-communication blackout periods and name a candidate and so would be regulated as “electioneering communications.” In January 2008, the movie was released. It included interviews and scenes of then-Senator Clinton at public appearances. It was shown in theaters and sold on DVD. Thomas Nelson Publishers paid a royalty for book rights and published a compendium book. When Citizens United received an offer to broadcast the movie, it sued as to the movie because it was prohibited from broadcasting it by the prohibition on corporate electioneering communications.

A three-judge federal district court held that the public disclosure provisions were constitutional as to the ads and the movie. And it held that the movie was an “electioneering communication” and that the prohibition on corporate broadcast of such communications was constitutional. Citizens United appealed. After initial briefing, the Supreme Court ordered additional briefing and argument on whether the cases relying on a corporate-form “corruption” should be reconsidered.


As a result of today’s opinion, substantial campaign finance regulations remain, but they are focused on the concerns the Court originally identified in the 1976 Buckley v. Valeo decision. There are still limits on the size of political contributions, in keeping with the Court’s concern about quid pro quo corruption. Gone is the notion that just because citizens incorporate they lose First Amendment rights.

Another result of today’s opinion is that many state laws patterned on now-rejected federal law are unconstitutional. States have even enacted laws going beyond what Congress has done, and these will now be clearly unconstitutional, too.

So-called campaign-finance “reform” groups will decry today’s opinion as allowing corporations and unions to have undue influence in politics and public life. But they fail to grasp the genius of the Framers of our Constitution. The Framers understood that in a free Republic the proper response to speech one opposes is speech in opposition, not opposition to speech. The Framers understood that layers of speech regulations and restrictions chill political involvement, so they forbade Congress to restrict speech and association. They did so to allow people of ordinary means to pool their resources and speak on the issues vital to them. The result of modern campaign-finance “reform” has been to make political speech available only to those who could hire expensive experts to guide them through the maze of regulations and restrictions, thereby cutting out the people of ordinary means. So ironically, it is not rich corporations and unions whose speech has been suppressed by purported “reform,” but the common folk, who cannot afford to hire the lawyers that the rich corporations and unions can afford. Today’s decision is a step toward returning to the day when any citizen can stand and speak her mind—without a second thought about complying with some maze of opaque regulations—because she is an American.


The opinion is available at

May you walk with the LORD always, and when you cannot take another step, may He carry you the rest of the way until you can walk along side Him again. Digg! Digg!

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