In the Business of Free Speech. The Roberts Court and Citizens United


Introduction: Citizens United—A Household Word

Very few US Supreme Court decisions become household words.[1] In our lifetimes, perhaps three have achieved that peculiar popular status: Miranda v. Arizona,[2] Roe v. Wade,3 and Citizens United v. Federal Election Commission.[3] [4]

The latest of these cases, Citizens United has quickly become one of the most reviled Supreme Court rulings in modern times. This is a constitutional shame, for it is a decision that embodied and applied classic First Amendment principles. It freed labor unions and nonprofit organizations from unwarranted restraints on their ability to speak on behalf of their members, supporters, and adherents, and cleared away a byzantine set of rules and regulations designed to stifle free speech with a complexity that rivaled the tax code. And doctrinally, it did nothing more sinister than resolve a recurring conflict between campaign finance controls and First Amendment rights that had been raging since the first major Supreme Court engagement with these issues in Buckley v. Valeo.[5]

Despite its doctrinal roots and foundation in core First Amendment principles, Citizens United was quickly attacked by prominent politicians and commentators as Exhibit A of a procorporate Court run amok. Citizens United has been portrayed as a boon to big business and a threat to democracy. This decision deserved far better. Not only was Citizens United well grounded in the Court’s First Amendment doctrine, but also it was a landmark for free speech and political freedom in our democracy. In this chapter I will attempt to explain why by describing the Citizens United case, discussing how it was part of a larger pattern of deregulatory decisions by the Roberts Court on campaign finance matters, and analyzing how those decisions fit into the broader context of strong First Amendment adjudication by the Roberts Court.[6] [7] [8] In this light, Citizens United is best understood not as “probusiness,” but as prospeech. Indeed, it almost has a libertarian feel to it, not in the sense of the economic laissez-faire philosophy of Lochner v. New York,7 but in the spirit of Cohen v. California,8 and other cases signifying that, under the First Amendment, the people and the groups they create largely get to determine what form and content their speech will take, not the government. In this regard, any benefits to business from this decision are merely incidental.

  • [1] The author would like to thank the Brooklyn Law School Dean's Summer Research StipendProgram for supporting my work on this chapter and David Inkeles for his helpful research assistance.
  • [2] 384 U.S. 436 (1966).
  • [3] 558 U.S. 310, 130 S. Ct. 876 (2010).
  • [4] 424 U.S. 1 (1976).
  • [5] 410 U.S. 113 (1973).
  • [6] Of course, and sadly, the death ofJustice Antonin Scalia and the uncertainty about who will replace him cast a shadow over the prospects that the Roberts Court will continue to be a very pro-freespeech Court.
  • [7] 198 U.S. 45 (1905).
  • [8] Cohen v. California, 403 U.S. 15 (1971).
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