Freedom Of Speech and the First Amendment

John McCain has said campaign finance reform is dead in response to Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010). Meanwhile opponents of this ruling have only just begun to lay bare the "parade of horribles." Although the political response may be riveting, this post will focus on the Court's opinion.

Citizens United v. Federal Election Comm'n involves Hillary: The Movie, a corporate-sponsored film produced by Citizens United. The McCain-Feingold Act, however, prohibits corporations and unions from sponsoring candidates with its funds.

The trial court denied Citizens United declaratory relief because the McCain-Feingold Act was consistent with established First Amendment precedent. Indeed, this reasoning was correct. Nevertheless, a majority of the Supreme Court decided this particular line of precedent diverged from earlier First Amendment jurisprudence. Thus, the Court returned to traditional legal roots. As a result, corporations may now use general funds for political speech.

On a simple level this makes a lot of sense. The First Amendment prevents Congress from, among other things, trampling on freedom of speech. Armed with this liberty, individuals with similar views naturally associate together, also protected by by the First Amendment. Their protected communications with one another undoubtedly brought them together. These like-minded individuals, now associated, may elect to formalize their relationship by forming an entity. A corporation is one possible form for this entity, and it allows individual members both to pool resources and uniformly to spread their views.

To permit the individuals freedom of expression but to prohibit their group makes war with common sense. Freedom of expression presumably brought the group together. Likewise, to grant individuals freedom to speak and to associate, but then to turn around and deny a resulting association such as a corporation freedom of speech is equally confounding. Notably, Justice Scalia's concurring opinion, which explains the textual and originalist understandings of the First Amendment, supports this line of thought.

For another perspective please listen to this podcast.

"I disapprove of what you say, but I will defend to the death your right to say it."

The First Amendment protects speech and provides for freedom of expression, restraining ‎government power in locations like public sidewalks, streets, and other publicly owned areas.

The Bill of Rights gives individuals in these places the freedom to distribute ideas either in writing or orally.

All laws concerning speech must be content and viewpoint ‎neutral. This means statutes must not state, imply, or intend to regulate speech ‎because of a disagreement with its message or idea.

Protecting spoken words, this does not prohibit laws that govern the ‎surrounding circumstances in which the speech occurs. Put differently, the Constitution limits the power ‎to regulate what people say, but it does not entirely curtail the police power in "the marketplace" of ideas.

Indeed, the law balances individual liberty with the government’s duty to protect the health and ‎safety of its citizens. As a result, the government may regulate the time, place, or manner of ‎protected speech. This means the government may regulate when, where, and how speech ‎may occur.

Even so, this is not unbridled government ‎power. On the contrary, freedom of speech is a fundamental right.

Even though the government ‎may regulate as to time, place, or manner, these laws must be narrowly tailored to a legitimate, content-‎neutral government interest. Futhermore, they must be the least restrictive means of serving a given legislative ‎goal while leaving open ample alternative channels for communication.‎

Brown v. Pittsburgh (3d Cir. 2009).