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Supreme Court Free Speech Ruling

By Da King Published: January 22, 2010

But first...last night at the Q...Cavaliers 93, Lakers 87. Yes !!! That's two wins in a row over the defending NBA champion Lakers, and the Cavs did it without all-star point guard Mo Williams, who is out with a shoulder injury. Lebron rules, throwing down 37 points along with 9 assists. Get well, Mojo. Go Cavs ! (Box score)

The Supreme Court made a ruling yesterday on a major free speech case, Citizens United v. Federal Elections Commission (FEC). Here are the facts of the case, as described by The CATO Institute:

Citizens United, a nonprofit political advocacy group, produced a film called "Hillary: The Movie" about the current Secretary of State, who at the time was a presidential candidate. The movie did not reflect well on Ms. Clinton but did not explicitly advocate her defeat in the 2008 presidential contest. Citizens United planned to show the film in theatres, sell it as a DVD, and make it available on-demand on cable TV. The group also planned to run ads marketing the movie.

In a free country with freedom of speech guaranteed by the First Amendment to the U.S. Constitution, in reading the above it seems obvious that Citizens United should have the free speech right to produce, air, advertise, and distribute their film. After all, we don't ban films, books, etc. in this country, do we ? We especially don't ban films, books, etc. that contain political speech, because free political speech is what the First Amendment is there to protect.

So, Citizens United aired and advertised their film in this free country with free speech rights, no problem at all. That has to be correct, right ???

Nope. Incorrect. It was illegal for Citizens United to air their film in the United States at the time Citizens United wanted to air it. Here's the reason, from the same CATO Institute article:

Citizens United knew, however, that distributing the movie—or even running ads for it!—was illegal under the McCain-Feingold campaign finance "reform." That is, part of McCain-Feingold prohibited advertising about candidates funded by corporations or labor unions during primaries and general elections.

But Citizens United is a corporation—that it's a nonprofit doesn't matter—Hillary Clinton was a candidate, and the movie most definitely discussed the merits of her candidacy. Showing the movie and even advertising it would thus be illegal unless the courts invalided the relevant section of McCain-Feingold as a violation of the First Amendment (as the Supreme Court already has with several other parts of the law).

Clearly, parts of McCain-Feingold infringed upon the free exercise of political speech. This isn't a new thing, however. There is a reason for it, and here it is:

The courts have long upheld campaign finance regulations as a way to prevent corruption (or the appearance of corruption) in elections. Contributors to campaigns might buy favors from candidates once they are in office, for example, so contribution limits are supposed to deter such exchanges.

Limits on campaign contributions from corporations were designed to prevent corporations (or other large groups, such as unions) from "buying" elections and corrupting the political process. Advocates of McCain-Feingold might say, 'yes, we infringe upon free speech, but we do it for a good cause.' If a regular person like you or I can afford to donate $100 to a political campaign, while the Mega-Bucks Corporation can donate $5 million, guess who is going to get influence with that politician ? As they say, money talks.

That's the case that went before the Supreme Court.

An important point here is, Citizens United wasn't making political contributions to any campaign. They just wanted to advertise and air their film. Should they, as a corporation, have that right, even though the film contained political content ? I say, of course they should have the right. After all, other corporations are free to air political content 365 days per year, 24 hours per day, with no restrictions whatsover. We call them newspapers, television stations, radio stations, etc. Why should only media corporations be entitled to uninfringed free political speech ? What makes them special ? It's also obvious that different media corporations contain different biases. Compare Fox News to MS-NBC, for example. Vastly different. In addition, some media corporations are owned by non-media corporations. NBC, for example, is owned by General Electric, so you could say GE has unfettered rights to political speech, while other corporations like Citizens United do not. How can that possibly be considered fair or right ? It's an extremely unlevel playing field, saying THIS corporation has free speech rights, while THAT corporation does not.

Further, is it even the province of the government to create a level playing field for political speech or for political contributions ? In doing so, the government would by definition limit political speech, our most important civil right. Free speech with accompanying government regulation of political speech is a contradiction in terms. It invalidates the First Amendment.

Another aspect of McCain-Feingold to consider is this - corporations and other organized groups still donate massive amounts of cash to political campaigns, about $1 billion in the last election cycle. They just don't do it directly. They get around McCain-Feingold restrictions through PAC's, 501's, etc.

Faced with this decision, the Supreme Court ruled correctly in favor of free speech, but amazingly, it was only a 5-4 decision. The liberal wing of the court (Ginsburg, Breyer, Stevens, Sotomayor) all ruled against free speech, against Citizens United being able to air and advertise their film. In the majority opinion, Justice Kennedy said "If the First Amendment has any force, it prohibits jailing citizens for engaging in political speech." It doesn't get much clearer than that, but the liberal wing of the court voted instead for censorship. They voted, in essence, to ban books. Unbelievable. In the dissenting opinion, Justic Stevens wrote the following:

The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 daysbefore the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante, at 1. All that the parties dispute is whether CitizensUnited had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided.

Stevens' opinion, in short, is complete horsecrap. It isn't free speech if the government dictates when you can exercise it. To hold with Stevens, we'd also have to take MS-NBC and Fox News off the air for 30 days before the election. The NY Times would have to stop publishing political stories for 30 days before the election. No newspaper could endorse a candidate. Basically everyone in the media would have to shut up about politics during the most important political days we have, if Stevens' rationale was accepted and equally applied.

An important distinction here is that the Supreme Court only struck down the McCain-Feingold limits on independent expenditures (such as Citizens United's film). They did not strike down limits on campaign contributions, even though many media outlets are reporting it as if they had.

Read the Supreme Court opinion here.



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