Instant Reaction: Citizens United v. FEC (Hillary Movie Case)

January 21st, 2010

After months of eager anticipation, SCOTUS finally got their act together, and handed down Citizens United v. FEC. Thanks to SCOTUSBlog for their awesome liveblogging.

Justice Kennedy’s majority opinion if 57 pages. Justice Stevens’s dissent is 90 page  (maybe to match his age?) Justice Thomas also concurred in part, dissented in part.

Here is the full split of opinions:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SO-TOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opin-ion, in which ALITO, J., joined, and in which THOMAS, J., joined in part. STEVENS, J., filed an opinion concurring in part and dissenting in part,in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part.

I will post updates here as they come out.

From the syllabus, here is the core holding, overruling Austin.

Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441b’s restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA §203’s extension of §441b’s restrictions on independent corporate expenditures is also overruled. Pp. 20–51.
(a) Although the First Amendment provides that “Congress shallmake no law . . . abridging the freedom of speech,” §441b’s prohibitionon corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the factthat a PAC created by a corporation can still speak, for a PAC is aseparate association from the corporation. Because speech is an es-sential mechanism of democracy—it is the means to hold officials ac-countable to the people—political speech must prevail against lawsthat would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Gov-ernment to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmentalpower, the First Amendment stands against attempts to disfavor cer-tain subjects or viewpoints or to distinguish among different speak-ers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in thepolitical speech context, the Government may impose restrictions oncertain disfavored speakers. Both history and logic lead to this con-clusion. Pp. 20–25.

On why speech should not be banned because a person is in a corproation:

The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in politicalspeech, but Austin’s antidistortion rationale would permit the Gov-ernment to ban political speech because the speaker is an associationwith a corporate form. Political speech is “indispensable to decision-making in a democracy, and this is no less true because the speechcomes from a corporation.” Bellotti, supra, at 777 (footnote omitted). This protection is inconsistent with Austin’s rationale, which is meant to prevent corporations from obtaining “ ‘an unfair advantage in the political marketplace’ ” by using “ ‘resources amassed in the economic marketplace.’ ” 494 U. S., at 659. First Amendment protec-tions do not depend on the speaker’s “financial ability to engage in public discussion.” Buckley, supra, at 49. These conclusions were re-affirmed when the Court invalidated a BCRA provision that in-creased the cap on contributions to one candidate if the opponent made certain expenditures from personal funds. Davis v. Federal Election Comm’n, 554 U. S. ___, ___. Distinguishing wealthy indi-viduals from corporations based on the latter’s special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech. It is irrelevant for First Amendment purposes that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Austin, supra, at 660. All speakers, in-cluding individuals and the media, use money amassed from the eco-nomic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Al-though currently exempt from §441b, they accumulate wealth withthe help of their corporate form, may have aggregations of wealth,and may express views “hav[ing] little or no correlation to the public’ssupport” for those views. Differential treatment of media corpora-tions and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amend-ment’s original meaning would permit suppressing media corpora-tions’ political speech. Austin interferes with the “open marketplace”of ideas protected by the First Amendment. New York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 208. Its censorship is vast inits reach, suppressing the speech of both for-profit and nonprofit,both small and large, corporations. Pp. 32–40.

Roberts Concurrence, Joined by Alito

Roberts joins in full, joined by Alito, to stress”the important principles of judicial restraint and stare decisis implicated in this case.”

Scalia Concurrence, Joined by Alito and Thomas

Nino disputes Stevens’ section of the “original understanding” of the First Amendment. This mirrors the debates Scalia and Stevens had in Heller.

Thomas, all alone, concurring in part, and dissenting in part

I dissent from Part IV of the Court’s opinion (disclosure requirements),  however, because theCourt’s constitutional analysis does not go far enough.The disclosure, disclaimer, and reporting requirements inBCRA §§201 and 311 are also unconstitutional.

Next, CT starts talking about prop 8. Oh snap.

Disclaimer and disclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights

Some opponents of Proposition 8 compiled this information and created Web sites with maps showing the locations of homes or businesses of Proposition 8 supporters. Many supporters (or their customers) suffered propertydamage, or threats of physical violence or death, as a result. They cited these incidents in a complaint they filedafter the 2008 election, seeking to invalidate California’smandatory disclosure laws. Supporters recounted being told: “Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other supporter,” or, “we have plans for you and your friends.” Complaint in—Yes on 8 v. Bowen, Case No. 2:09–cv–00058–MCE–DAD (ED Cal.), ¶31. Proposition 8 opponents also allegedly harassed the measure’s supporters by defacing or damaging their property. Id., ¶32. Two religious organizations supporting Proposition 8 reportedly received through the mail envelopescontaining a white powdery substance. Id., ¶33

Justice Thomas closes forcefully:

I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruinedcareers, damaged or defaced property, or pre-emptive andthreatening warning letters as the price for engaging in“core political speech, the ‘primary object of First Amendment protection.’”