Free Speech for Corporations?

By Chris Finan, President of the American Booksellers Foundation for Free Expression

It sounded like just one more piece of bad news.

The conservative majority on the U.S. Supreme Court announced in January that it was striking down a ban on campaign spending by corporations.

The New York Times protested strongly. "With a single, disastrous 5-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century," it declared.

President Obama condemned the decision as "a major victory for big oil, Wall Street banks, health insurance companies, and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans."

But that was certainly not how the justices in the majority portrayed their decision. Justice Anthony Kennedy, who wrote the opinion, sees it as a victory for free speech. "The censorship we now confront is vast in its reach," he declared in the opinion.

What are those of us who care about both honest elections and free speech to think?

This question has prompted the American Booksellers Foundation for Free Expression [1] (ABFFE) to organize a program at BookExpo America on Thursday, May 27. "ABFFE Presents: Free Speech for Corporations?" will feature a lively exchange between advocates on both sides of the debate. Ira Glasser, the former executive director of the American Civil Liberties Union, will discuss the concerns that led the ACLU to oppose campaign finance restrictions. Robert Weissman, the president of Public Citizen, will explain why his group is supporting a constitutional amendment to restore the law struck down by the court. The program will be held at 11:00 a.m. in Room 1E12 of the Javits Convention Center.

Citizens United v. Federal Election Commission struck down a provision of the Bipartisan Campaign Reform Act of 2002 that bans corporations and labor unions from spending money for political ads advocating or opposing a candidate within 30 days of a primary and 60 days of a general election. The law was sponsored by Senators John McCain (R-AZ) and Russ Feingold (D-WI) and is often referred to as "McCain-Feingold."

The case arose when Citizens United, a conservative group, wanted to gain a wider audience for its film, Hillary: The Movie, during Hillary Clinton's campaign for the presidency. Hillary had already been distributed to theaters and on DVD, but Citizens United wanted to make it available as a video on demand. (McCain-Feingold specifically bans corporate electioneering communications only on broadcast, cable and satellite networks.)

Since Hillary is extremely critical of Clinton and it is a felony to violate the McCain-Feingold law, Citizens United went to court seeking an injunction to prevent the Federal Elections Commission from punishing it. The court ruled that the film was a form of "electioneering communication" and denied the request for an injunction. Citizens United appealed and the case reached the Supreme Court last year.

Both sides in the debate over campaign finance restrictions believe that they are defending free speech.

Supporters of McCain-Feingold argue that the only way to maintain a marketplace of ideas in electoral politics is to limit the power of corporations and unions to use their wealth to swamp the airwaves with ads for their candidates. They cite nearly a century of court decisions that uphold the right of government to regulate campaign spending by corporations. Congress has prohibited corporations from giving money directly to candidates and limited the amount that they can give to political parties. The passage of the McCain-Feingold law took this process a step farther by banning even "independent" communications advocating or opposing a candidate.

Opponents of the law believe that corporations possess the same First Amendment rights as individuals. Therefore, efforts to restrict their speech during political campaigns are unconstitutional.

For Justice Kennedy, who has authored several important opinions supporting the First Amendment, McCain-Feingold goes too far. "The law before us is an outright ban, backed by criminal sanctions," he wrote. "Its purpose and effect are to silence entities whose voices the Government deems suspect." Kennedy argued that banning the speech of a particular group doubly violates the First Amendment, by depriving the group of the right to advocate its views and depriving the public of the right to hear them. "When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought," he said.

The law doesn't affect just big business, Kennedy wrote. Because it applies to all corporations, it covers nonprofit advocacy groups like Citizens United as well. In his opinion, Kennedy declares that the law would bar the Sierra Club from running an ad calling for the defeat of an elected official who favors logging in a public forest and prevent the ACLU from creating a website supporting a candidate for president based on his support for free speech.

But Justice John Paul Stevens, writing probably his last major opinion before retiring this summer, rejected Kennedy's view. Citizens United was not censored, he said. It had a right to use funds from its political action committee to air Hillary at any time. The real issue is whether corporations enjoy the same First Amendment rights as people. Stevens denies it. "The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but inadequate to justify the court's decision in this case," he wrote.

In addition to examining the Citizens United case, the ABFFE program at BookExpo will ask what happens next. Although the court struck down the ban on ads by corporations and unions, it upheld the constitutionality of the law requiring them to disclose the fact that they paid for them. Members of Congress have introduced legislation to strengthen disclosure requirements.

People for the American Way and Public Citizen also want to amend the First Amendment to restore the restrictions struck down by the court. Civil liberties groups have fought previous efforts to change the First Amendment out of a fear that this will weaken the Constitution's strong protections for free speech. Once we limit the free speech rights of corporations, do we make it easier to deny them to other unpopular groups?

One thing is sure. We will have a fascinating discussion at BookExpo.

I hope to see you there!