Monday, January 21, 2013

In Defense of Citizens United

As today marks the third anniversary of the unpopular decision in Citizens United v. Federal Election Commission, I expect a handful of folks to ask me to take a stand against the case by signing a petition or re-sharing a Facebook post or something. I'll admit I'm not happy with the way that corporate power influences politics. But here's why I think Citizens United was rightly decided, and why attempts to overturn the case or amend the First Amendment to exempt corporations (or certain types of corporations) are a danger to free speech in general"

In a nutshell, much of what has traditionally been protected political speech uses the corporate form. I'm open to suggestions, but I can't see how you can draw a reasonable boundary between protecting the New York Times Company spending millions of dollars to distribute an election editorial and not protecting Koch Industries spending millions of dollars to run ads during an election.

I usually hear one of two responses for how you would draw such a distinction, neither persuasive to me.

The first is to argue that the First Amendment should protect the right of individual persons (such as journalists) but not cover the corporate entity (such as the New York Times Company). The problem here is that this would still enable overly broad restraints on what many would consider legitimate speech. Journalists may be free to write what they want, but they wouldn't be able to receive a corporate salary. Or use the corporate printing press. Or post on a website owned by a corporation. Or really do anything more than standing on a street corner and handing out flyers.

The second is to draw a line between different types of corporations -- e.g. between media and non-media corporations. This is the approach taken by the dissent in Citizens United, but it's one I'm uncomfortable with because of the difficulty in drawing coherent boundaries here. Take the media / non-media distinction for example. What's a "media corporation"? Is the New York Times a media corporation? What about Google, which hosts Blogger? What if a non-media corporation bought a media corporation? First Amendment law favors bright lines because fuzzy boundaries have a chilling effect on legitimate speech. And the lines involved with okaying some corporations but not others aren't so clear in practice.

While I'd like to think there's a line to be drawn here, but I suspect there isn't. The fundamental complaint raised by campaign finance reform activists isn't about corporations per se, but about how the accumulation of capital affects the political process. Yet the political process is built around mass communication. And it turns out that communicating to hundreds of millions of Americans is expensive. It requires the accumulation of capital, whether it's paying for TV broadcasting, print newspaper, or laying the fiber optic cable for an Internet connection. So long as that's true, it'll be difficult to take the money out of politics without taking free speech out as well.

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Anonymous Anonymous said...

I'm a big, big fan of Citizens United (and I voted for Obama).

One of the critiques of CU ends up with an argument that the first amendment protects only professional media corporations. That's really dangerous.

First, that's not how the amendment was intended or understood. Prof. Volokh did an exhaustive law review article showing that freedom of the press meant the freedom we all have to put things in writing. That is, "press" wasn't a reference to a professional category, it was a reference to a species of speech by anyone who chooses to engage in it.

Second, if we limit the FA to just the professional journalists, we limit our own ability to use all the new modes of communication, (including this blog).

Third, it's not clear that even if we grant special FA protections to the professional press that it would be enough to protect them from campaign regulation.

Fourth, we have a relatively recent example of the federal government being able to control content from professional media outlets: the fairness doctrine. After it died, some of the government officials who had been in charge of enforcing the doctrine came out and said that of course they used the doctrine in partisan ways to favor speech they liked and curtail speech they didn't like.

All in all, we're better off with the deal struck long ago: "Congress shall make no laws . . . ."

1/21/2013 8:18 AM  
Blogger Patrick said...

I agree, sort of. The part of the Citizens United opinion that I am uncomfortable with is the premise from Buckley v. Valeo that money is speech. Money isn't speech. They are related, but no one can deny that spending money isn't actually speaking.

It is true that money can buy speech. But it can also buy things like crooked politicians. So the notion that unrestrained spending -- by a corporation or otherwise -- is unrestrained speaking is, I think, wrong. If you want to chip at Citizens United that’s the way to do it. Regulate how certain entities spend money or disclose their expenditures. There are lots of ways to do that (without prohibiting or burdening actual speech) that I think would be under the First Amendment. Mandatory public disclosure of contributors to PACs is one.

1/21/2013 10:15 AM  
Anonymous Anonymous said...

Part of the problem with the anti-CU arguments is where does the line get drawn? If Koch (to continue the example) is allowed free speech, but not allowed to spend money to spread that speech, do they really have free speech still? And how many of the anti-CU people are willing to extend the rule to anything else with a corporate legal structure? (E.g., labor unions, environmental groups, etc. And don't forget unincorporated associations. They'd get treated like corporations too.)

Moreover, if speech is something that only an individual human has, what's to stop the Koch brothers from just spending their vast sums of money in their own name? Shouldn't my buddy and I be able to pool our money to buy an ad spot? What about ten friends? A hundred like-minded people?

While I may not be happy with some of the things corporations do with their political dollars (certain labor unions included, btw), I think that CU is the lesser evil.

1/29/2013 12:49 AM  
Anonymous Anonymous said...

some principles trump utility maximization. one such principle is that the haves should not "have" the democratic process.

you cannot have a rule curbing the haves without slippery-slope counterarguments etc. sad that people in this country don't have regard for that principle.

2/21/2013 12:12 AM  
Anonymous Anonymous said...

What, no discussion of the USNWR law school rankings?

3/22/2013 6:43 PM  

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