In 2011, the Supreme Court decided Brown v. Entertainment Merchants Association (EMA). A California law prohibited the sale of violent video games to minors and required labelling of content and designation of suitable users. Parents would still have the choice to buy video games deemed violent and give them to their children. The law was challenged as violating the free speech rights of minors. Without getting into the raw details, as described in the state’s brief and acknowledged by some of the justices, these games invited the players to torture, murder, and humiliate characters. The attorneys for the purveyors of this entertainment assured the justices that such displays of violence were a traditional teaching tool for America’s youth, and that, unless children have unrestricted opportunity to purchase these materials, freedom of speech would be devastated.
The Supreme Court, by 7-2, agreed that the law was an affront to the First Amendment. Justice Antonin Scalia, writing for the majority, asserted that these games’ opportunities for interactive violence were no different than reading Grimm’s fairy tales or Dante’s “Divine Comedy,” or watching Road Runner cartoons. Setting himself above the American Academy of Pediatrics and the California Psychological Association, both of which supported the law, Scalia approvingly noted that (some) research showed that there was no compelling link between such violent games and children’s behavior. The entertainment industry and all “correct” thinkers breathed a sigh of relief that another potential blow to a core freedom had been averted.
Yet, only a year earlier, the Supreme Court’s decision in Citizens United v. FEC produced a near-universal howling among academics and those same “correct” thinkers that the walls of the republic were in danger of tumbling. In Citizens United, the Court struck down–by a bare majority–a portion of the McCain-Feingold campaign finance law of 2002. The section at issue prohibited “electioneering communications” (direct expenditures on messages that mentioned a candidate) within 30 days of a primary election or 60 days of a general election. But it did not do so for everyone; instead, the prohibition applied only to corporations (including non-profits) and unions. As was to be expected from the media-government complex, media corporations that own the major newspapers and control most television programming, also were exempted. The political movie at issue was produced by an advocacy group, Citizens United, and was to be shown on cable television through video-on-demand. It was an attack on then-candidate Hillary Clinton in 2008. Four justices dissented from the (to them) apparently incomprehensible argument that the First Amendment protects political speech and association for all, not just those selected by the government.
Presumably, in the minds of these critics of the result in Citizens United, American adults are overwhelmed by the excitement of too many political ads too close to an election and are not capable of rationally deciding for themselves how to evaluate the ads’ messages. But, going by the reach of the statute, only if the ads are produced by an organization, not by an individual or a political party. And only by a non-media organization. Rather than be bored by the avalanche of ads typical as an election approaches and tune them out, Americans will be brainwashed into supporting whatever candidate receives the most mention in ads by these select sinister organizations. Based on the Supreme Court’s reasoning in EMA, and on the critics’ reaction to that case, though, American children are fully capable of rationally deciding for themselves whether the video games’ invited acts of virtual violence are appropriate for them and will dispassionately evaluate the games’ messages. To sharpen the irony, if the movie had just contained interactive deviant brutality, it would have been like the violent video games in EMA and would have been more palatable to the critics as an exercise of protected free speech.
As President Obama did in his reaction to the case at that year’s State-of-the-Union speech, critics claimed–incorrectly–that Citizens United overturned a century of precedent against such organizational expenditures. Justice Anthony Kennedy meticulously eviscerated that argument and, along the way, endorsed the holdings of prior cases, cleared away a contrary constitutional outlier case, and affirmed the heretofore unremarkable principle that the core of the First Amendment’s free speech and press clauses is the protection of political advocacy.
Justice Scalia’s concurrence put to rest the dissent’s pseudo-originalist canard that the Framers did not intend corporations to exercise freedom of speech, by citing to numerous 18th-century educational, religious, and literary corporations and identical non-corporate associational entities that engaged in free speech activities. To underscore that point, the Court’s opinion cited a long series of cases in which the free speech rights of corporations were protected. In similar vein, Scalia showed that the free press protections at the time were not meant to apply only to media organizations as understood today. Moreover, the text of the First Amendment was clear. It mentioned speech and press, not speakers and media.
Contrary to the perception about Citizens United that the media have tried to foster, the case reflected the Court’s traditional constitutional jurisprudence about campaign financing and freedom of speech that distinguished between contributions and expenditures. Federal law initially only prohibited direct contributions to candidates by corporations. In 1947, for the first time, Congress prohibited independent political expenditures from corporations and unions on behalf of candidates. Although the Court would not squarely reach the constitutionality of such restrictions for three decades, questions were raised about their constitutionality almost immediately, first by President Truman, then by the Court and concurring justices in U.S. v. CIO (1948), and, finally, by three justices in U.S. v. Automobile Workers (1957).
Judicial resolution of the constitutional issue did not occur until Buckley v. Valeo (1976). The Court made a stark distinction between contributions to candidates and independent expenditures. Contributions could be limited because of the concern over corruption and the appearance of corruption. Limitations on expenditures were struck down as unconstitutional, with only Justice White (who seems never to have met a federal law he did not like) dissenting. The specific statutory section (608(e)) in Buckley applied to individual, as well as corporate and union, expenditures. Some of the victorious plaintiffs were corporations. However, another section of the statute (610), the 1947 restriction on corporate and union expenditures that had been at issue in the earlier cases, was not specifically involved in Buckley. That section, subsequently recodified, was at issue in Citizens United.
Soon after Buckley, the Court struck down a state law that prohibited independent corporate expenditures related to referenda, in First National Bank of Boston v. Bellotti (1978). The Court emphasized that “the legislature is constitutionally disqualified from dictating…the speakers who may address a public issue.” Not until Austin v. Michigan Chamber of Commerce (1990) did the Court break from this line of precedents and uphold a restriction on corporate independent expenditures.
Austin rested on an “anti-distortion” theory that sought to allow government to intervene in the marketplace of speech to curb the power of wealthier speakers who might exercise a disproportionate influence in getting out their message. That theory had been roundly rejected by the Court before Austin, and was so, again, in Citizens United. Moreover, the McCain-Feingold Act’s exemption of huge media corporations from its coverage, and the exclusion of wealthy individuals, per Buckley, made a mockery of the anti-distortion rationale. Indeed, then-Solicitor General Elena Kagan made little effort to defend Austin during oral argument in Citizens United. Austin was overruled.
In McConnell v. FEC (2003), the Court, by 5-4, upheld restrictions both on contributions by organizations and individuals and on expenditures, including the “electioneering expenditures” addressed in Citizens United. The length of the 272-page opinion was matched by its convoluted analysis. There were multiple dissents, including one by Justice Clarence Thomas that characterized the statute a bit hyperbolically as the “most significant abridgement of the freedoms of speech and association since the Civil War.”
That a change of personnel can make a difference, especially, on an issue where the Court is closely divided, is evidenced in this controversy by the retirement of Justice Sandra Day O’Connor and her replacement by Justice Samuel Alito. O’Connor was part of the majority in McConnell in 2003. In FEC v. Wisconsin Right to Life (2007), the Court foretold the result in Citizens United by holding the restriction on electioneering communications unconstitutional where the communication was an “issue ad” and not express advocacy for or against a particular candidate. Alito was part of the majority. Chief Justice John Roberts’s opinion stopped short of reversing McConnell, but reminded readers that “few kinds of speech can lay claim to being as central to the First Amendment as campaign speech.” Three justices would have simply overruled McConnell. One of them, Anthony Kennedy, later wrote the opinion that did that in Citizens United.
After the mis-step in Austin and the tortured opinions in McConnell v. FEC (2003), the Court in Citizens United simply has returned to its earlier jurisprudence and protected the rights of all, including individuals, associations, unions, and corporations, to participate in political discourse. Six years and two election cycles since Citizens United, the sky has not fallen. Whatever ails the electoral process, political ads about candidates rank low on the list. Contrary to the crisis-mongering of First Amendment Luddites, corporations have spent much the same as before. Indeed, individual corporations are not the largest spenders, and unions, especially public employee unions, eventually may be bigger beneficiaries of the decision. Moreover, the efforts of business, labor, and issue-oriented interest groups have been dwarfed by more the expenditures by the major parties, and by the huge sums raised directly by presidential candidates.
Repeated measures to control campaign expenditures through layers of regulation have just made matters more opaque, though the complexity of the laws and the threat of felony prosecutions have resulted in a windfall for election law attorneys. Complexity and opacity deter smaller associations from participating in the political process, as the Court noted in Citizens United, and magnify the power of wealthier actors able to maneuver through the regulatory labyrinth. One reason corporate spending has not changed much is that associated entities previously could spend unlimited “soft” money on electioneering activities (even within the time before an election) through a political action committee.
Attempting to control political spending in a country of 300 million that supposes itself to be a participatory political system, and one that prizes informed electorates, is chimerical. As former California Assembly Speaker Jesse Unruh famously declared, “Money is the mother’s milk of politics.” Citizens United is faithful to the First Amendment’s core values and brings the potential for more accountability to campaign financing.
Citizens United v. Federal Election Commission (2010) Supreme Court decision: http://caselaw.findlaw.com/us-supreme-court/08-205.html
An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.