Last Thought on Citizens United
January 25th, 2010 · 18 Comments
At the risk of rambling on redundantly, I want to stress one thing about my attitude toward the Citizens United case: We’ve been focusing on this question of “corporate personhood” because that’s the legal frame we’ve been handed, but it’s pretty much irrelevant to my thinking about this question. The root conviction here is just that when someone has produced an unflattering political documentary about a sitting senator who is seeking higher office, and the government seeks to prohibit it from airing just because the person to whom it pertains is seeking political office, that cannot possibly be compatible with the First Amendment. Who produced or funded it are beside the point. Now, if you tell me that with such-and-such a fact pattern, given a framework of other legal decisions, this result requires the court to treat corporations as bearers of First Amendment rights, so be it. If you tell me the courts have an alternative means of reaching the same result while denying that corporations have such rights, fantastic. I have no real independent commitment to a position either way on this question, except insofar as it appears to be necessary to avoid carving a huge loophole in protections for political speech.
If we just work from the text of the First Amendment, it seems perfectly possible to go another route, because unlike (say) the Fourth Amendment, it doesn’t technically grant speech and press rights to persons; it just prohibits a category of government action: “Congress shall make no law…” It immunizes an activity, not a class of actors. Again, I’m happy to take the path of least resistance here. My understanding is that “corporate personhood” for constitutional purposes is not a novel result, and indeed, that all nine Supreme Court justices agreed that First Amendment rights were implicated here. The dissenters just thought campaign finance law served a “compelling interest” that justified overriding the right to free speech. But if people are unhappy with that legal concept, I’d be delighted to take the alternate path to the same outcome.
juliansanchez.com |
