Defending Internet Speech
I have just finished Justice Kennedy’s opinion for the Court in Citizen United v. FEC and one thing is mightily clear -- conservatives are now the chief defenders of free speech and the internet, and the importance of the blogosphere has broken through to the Justices. First the bad news. The Government enacted a law that had the effect of criminalizing distribution of a movie attacking a high government official (Senator Hillary Clinton) and the four justices associated with the Left voted to uphold that law. This marks the confirmation of trends that have been occurring since Ronald Reagan appointed Justice Scalia. The law in question is part of the McCain Feingold Campaign Finance “reform.” It prohibited corporations and unions from making independent expenditures on behalf of or against a candidate, particularly within 60 days of an election or primary. Citizen’s United attempted to promote the movie through “video on demand” and this fell afoul of the regulation. They were under criminal threat for distributing a movie about Hillary Clinton through video on demand where people had to order the movie in their own homes. The Court noted that under this law Mr. Smith Goes to Washington could have been banned.
Justice Kennedy’s opinion, overruling a 1990 case (note the date) allowing bans on corporate speech, and striking the ban on corporate expenditures for speech down, favorably cites opinions by liberal icons Justices Warren, Douglas and Black. He notes President Truman’s veto, on free speech grounds, of the Republican Congress’ attempt to prevent union involvement in politics. He notes that distributing a book with corporate funds could be banned. Further, under the law the “Sierra Club run[ning] an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests” would be a felony. He notes that this prohibition, among others, “are classic examples of censorship.” Yet every one was part of the law, and every one would be upheld absent the Court’s opinion. He stated “political speech must prevail against laws that would suppress it, whether by design or inadvertence.” The Court noted that before 1990, they had forbidden ”restrictions on political speech based upon the speaker’s corporate identity.” That year, with Scalia dissenting, and the liberal icons Brennan, Marshal and one day liberal icon Stevens in the majority, the Court abandoned a strong free speech principal that corporations and unions were entitled to vindicate the first amendment rights of their members and shareholders.
This is crucial. The Right, in the shape of Scalia and Thomas, is confident of its ability to engage in Justice Holmes “market place of ideas.” The Left, in the shape of Stevens, Ginsburg and Sotomayor, is not. The Right believes in protecting the ability to speak for even disfavored groups, like corporate shareholders, the Left does not. Fifty years ago such a dynamic on the Supreme Court would have been unimaginable. But fifty years ago unapologetic liberalism was popular and at the center of American political life. That is no longer the case.
The other key item in the opinion is the rise of the internet. The Court noted that upholding the law as written would trample the wide open vistas of internet speech. The Court could not determine why media companies should have free speech and other companies would not. Moreover, “With the advent of the Internet [note the capitalization by the Court] and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.” The Court hit this theme again stating “Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights.” And further “Soon.., it may be the Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues.”
The Court affirmed that the original understanding of the Constitution would not allow such a law. “The censorship we now confront is vast in its reach” the Court said. The “Living Constitutionalists” were willing to uphold such censorship, originalists were not. Laws curtailing, banning and prohibiting speech by the government are now pushed by liberals, and will be upheld by their allies on the Court. This threatens the wide open internet, and sites like this one. There will likely be a Supreme Court vacancy at the end of this term. Republican Senators ought to defend the Internet, and grill the President’s liberal nominee on whether expenditures on political speech, including blogs, can be prohibited by the government under our Constitution.