Opinion: Court Ruling Is a Victory for Free Speech

(Jan. 21) -- In March, Deputy Solicitor General Malcolm Stewart stood before the U.S. Supreme Court and argued that the Constitution gave the government the power to ban the distribution of a politically oriented movie if, like most movies, it was distributed by a corporation. Justice Samuel Alito replied, "That's pretty incredible."

By the time Stewart's turn at the podium was over, he told the court that the government could restrict the distribution of books through Amazon's digital book reader, Kindle; could prevent a union from hiring a writer to author a political book; and could prohibit a corporate publisher from publishing a 500-page book if it contained even one line of candidate advocacy.

Today, in Citizens United v. Federal Election Commission, the Supreme Court said, "No, it can't."

In a carefully crafted opinion by Justice Anthony Kennedy, the court overruled the case, Austin v. Michigan Chamber of Commerce, on which Stewart (and in a later re-argument, current Solicitor General Elena Kagan) had relied. In doing so, the court reaffirmed the primacy of the First Amendment and of free speech and association in American political life.

Specifically, the court ruled that Citizens United, a conservative nonprofit group, had a right to distribute, through video-on-demand technology, a documentary about Hillary Rodham Clinton that it had attempted to air during the 2008 presidential primaries.

More generally, the court ruled that unions and corporations -- from the Sierra Club to NAACP to NRA to Planned Parenthood, as well as Microsoft, Exxon and Joe's Body Shop -- have a constitutional right to speak directly to the public about candidates and political issues that affect them.

This decision should be welcomed by everyone who cares about free speech, if only because the alternative laid out by the government is so frightening. But it is a correct decision on its own merits. It will increase the amount of political information available to citizens and allow us to hear very important voices that ought to be heard as we, as a nation, debate our future.

While the decision is important and will result in more political spending, it is not the "radical" decision its critics claim. The case that was overruled, Austin, is just 20 years old and has long been recognized as being in conflict with the court's older, broader First Amendment and campaign finance precedents.

The decision today does not change the federal prohibition on direct contributions by unions and corporations to candidate campaigns. Further, 28 states, covering 60 percent of the nation's population, already allow corporate independent expenditures in state races. These include many of the nation's best governed and most prosperous states, such as Utah, Virginia and Oregon.

There is no evidence that corporations or unions have been able to dominate the politics of these states. Rather, the relative economic health and good government of such states suggests that free, robust debate has been beneficial to their political cultures.

What should be alarming to Americans is that four members of the Supreme Court, in an opinion by Justice John Paul Stevens, argued that free speech about political issues posed "dangers ... to the electoral process" and that allowing Citizens United to distribute "Hillary: The Movie" by video on demand "threatens to undermine the integrity of elected institutions across the nation."

Our founders, and fortunately a five-member majority of the court, understood that it is dangerous to allow the government to decide who has spoken too much, or who needs to be silenced lest they become "too influential."

The next time you open a book on Kindle, rent a movie from video on demand or buy a book at Borders, remember that it is today's decision in Citizens United v. Federal Election Commission that secures your right to do so.
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Bradley A. Smith is chairman of the Center for Competitive Politics, and is the Blackmore/Nault Professor of Law at Capital University Law School in Columbus, Ohio. He previously served as chairman of the Federal Election Commission.



ANOTHER VIEW: The court's decision shows the need for Congress to pass the Fair Elections Now law, says Nick Nyhart of Public Campaign.