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Free Speech Finally Means All Speech

After decades of willful blindness, a bare majority of the U.S. Supreme Court has finally acknowledged that it should never be a crime in this country to say, “Vote for Joe.”

By allowing corporations and labor unions to buy advertisements extolling or criticizing candidates for public office, the high court has reshaped the American political landscape. Its 5-4 decision in Citizens United v. Federal Election Commission establishes that the First Amendment guarantee of free speech applies as much to businesses and other organizations as to individuals.

Now, if President Obama and his fellow Democrats decide to campaign against Wall Street in the upcoming mid-term elections, Wall Street can fight back.

The immediate reaction to the court’s decision was predictable and, in some cases, predictably wrong-headed. Republicans, the presumed beneficiaries of corporate political activity, applauded the ruling along with advocates of civil liberties, while Democrats and advocates of campaign-finance restrictions despaired.

Joel Gora, a law professor who has represented the American Civil Liberties Union, said the ruling marked “a great day for the First Amendment.” But Michael Waldman of the Brennan Center for Justice said the court “reached into the political process to hand unprecedented power to corporations,” and Fred Wertheimer, a longtime advocate of campaign finance reform, called it “a disaster for the American people.” (The New York Times web site carried these comments within hours of the decision.)

Where is the disaster? The decision means Microsoft or Google or ExxonMobil or Fred’s Gas Station now can buy advertisements that say which candidates they like or dislike, and why. They are still barred from donating money directly to candidates, although you or I can do that (within limits). They are still barred from paying voters to cast their ballots a certain way.

The Free Speech Movement was born in the 1960s at the University of California at Berkeley. But most of the country’s political left never got the memo that freedom of speech means freedom of speech for everyone. Even journalists, who ought to protect the First Amendment with their last ounce of strength, do not always follow their principles when they lead to the boardroom. Editorial writers who are free to support anyone they want often inveigh against that same freedom for unions or businesses.

The case decided yesterday began when a nonprofit corporation, Citizens United, produced a 90-minute documentary entitled “Hillary: The Movie,” critical of then-presidential-candidate Hillary Clinton. The organization wanted to air the film on cable television shortly before the 2008 primaries.

But Citizens United was wary of running afoul of the Bipartisan Campaign Finance Act of 2002, better known as the McCain-Feingold Act. The campaign finance law prohibited corporations and labor unions from using their general treasury funds to publicly distribute any electioneering communications, defined as broadcast, cable or satellite transmissions that refer to a clearly identified candidate for federal office and are made within 30 days of a primary election or within 60 days of a general election.

In order to avoid potential fines, Citizens United asked the courts to rule that McCain-Feingold did not apply to the Clinton documentary. The District Court refused.

When the case got to the Supreme Court, the justices decided that, instead of merely determining whether or not “Hillary” was an electioneering communication, they wanted to reconsider the constitutionality of McCain-Feingold’s restrictions on corporate speech.

The court had previously upheld the McCain-Feingold restrictions in a 2003 decision that relied on a precedent established in the 1990 case of Austin v. Michigan Chamber of Commerce. In Austin, the court ruled that there is nothing unconstitutional about preventing corporations from using their treasuries for campaign speech.

But the Supreme Court is allowed to change its mind, and yesterday it did. “Hillary” could not be exempted from the restrictions set forth in McCain-Feingold, the Court determined, but those restrictions were unconstitutional. Justice Anthony M. Kennedy, writing for the majority, said the “prohibition on corporate independent expenditures is...a ban on speech,” and therefore a violation of the First Amendment. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people,” Kennedy wrote, adding that, “For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence.”

The Court did not overturn the provisions of McCain-Feingold that require certain advertisements to include disclaimers and disclosures identifying the sponsors. It also rejected Citizens United’s claim that it should have been exempted from these requirements.

Sadly, yesterday’s decision splits the court along the familiar ideological lines. The dissent by Justice John Paul Stevens asserted, “The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.”

Justice Stevens could not be more mistaken when he describes the free expression of ideas by anyone, at any time, for any reason, as a mere “conceit.” After all, if you prohibit a corporation from expressing its views, you also prohibit all of America from hearing those views — which is exactly the point of the restrictions in the first place. If nobody would pay attention to corporate political advertising, why bother to prohibit it?

The Free Speech Movement that began at Berkeley all those years ago may have achieved its ultimate victory yesterday at the Supreme Court. It certainly is not what the movement’s founders envisioned. But free speech is not a conservative principle, or a liberal principle. It is the bedrock principle of a free society. Yesterday’s decision corrects an egregious infringement of that freedom.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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2 Responses to "Free Speech Finally Means All Speech"

  • Helen DiNetta
    January 22, 2010 - 1:31 pm

    As a naturalized American citizen and the daughter of parents who fled communist Czechoslovakia after WWII, I too applaud the the supreme court decision. I consider free speech to be fundamental and our most important right. What concerns me most is that this decision was split “along the familiar ideological lines”, that so many justices did not abide by the constitution, and that free speech could be jeopardized depending on an appointment made to the supreme court by the ruling party.

  • Anthony Criscuolo
    January 26, 2010 - 1:12 pm

    I fully support the Supreme Court’s ruling in principle and strongly believe our free speech should not be limited, especially when concerning political speech. However, this is a very dangerous and slippery slope. The more money we involve in our political process the more power we give to special interest groups, lobbyists, and “the rich.” There are various studies that suggest higher-spending candidates are more likely to win elections; although other studies have proven no correlation, or very little correlation, exists between campaign spending and election outcomes. Even with inconclusive evidence, I think it’s common sense that in any situation (except maybe true love), money has an influence, which means, generally, more money equals more power.

    I’m not saying money is evil, and those of you who know me best know I am a staunch capitalist who believes the free-market profit-motive economic system is the best thing to come along since Ronald Reagan was president. But elections should be about ideas, our future, and who is best able to keep us safe while also providing equal opportunities for prosperity along our life-long journey in pursuit of happiness.

    How much does it cost to convey such ideas? Based on the 2008 election spending figures, it costs a lot, and after this ruling, it’s going to cost even more.