Federal Judiciary

Free to Speak -- By: The Editors

Americans have cause to rejoice in the Supreme Court?s landmark decision reaffirming our freedom of association and our freedom of speech. In Citizens United v. Federal Elections Commission, the majority of the Court, led by Justice Kennedy, reaffirmed ?ancient First Amendment principles.? It specifically overruled a prior decision in which the Court had upheld a state restriction in Michigan that banned corporations -- including nonprofits -- from engaging in independent political expenditures. The Court overturned a similar provision in federal law, striking a decisive blow against the McCain-Feingold campaign-finance restrictions, one of the worst abridgments of the First Amendment since the infamous Alien and Sedition Acts of 1798.

The Founders wrote the First Amendment specifically to protect free speech for the purposes of political advocacy and criticism. The Constitution provides that ?Congress shall make no law? abridging that right. But that is precisely what Congress did by restricting the right of Citizens United, a nonprofit corporation, to release a documentary film critical of Hillary Clinton while she was a candidate for president. Fortunately, the Court held that the government does not have the right to distinguish between different classes of speakers and to disfavor some of them, such as corporations. The provisions of the law acted as an outright ban on some kinds of speech, and they set up a complex regulatory framework for others, limiting them in a way the Supreme Court found equivalent to a prior restraint on communication. The law also gave the FEC the power to decide what political speech was allowed and to punish those who violated the law with severe civil and criminal penalties.

The idea that the government ought to be empowered to punish any party for engaging in political speech is not only a violation of the First Amendment, it is a fundamental affront to the founding principles of our republic. As Justice Kennedy wrote, speech is an essential mechanism in a democracy, helping to hold public officials accountable to the people. For that reason, the right of free political speech must prevail against laws that suppress it or impose such a burden on it that criticism, advocacy, and debate are stifled.

It speaks volumes about the so-called campaign-finance reformers, and their attitudes toward our constitutional rights, that they are positively apoplectic over this decision. Rep. Alan Grayson (D., Fla.), the Left?s epitome of decorum and nuanced thinking, calls Citizens United v. FEC ?the worst Supreme Court decision since the Dred Scott case.? Senator Feingold is demanding new campaign-finance legislation, while Senator Schumer wants congressional hearings on the possibility of limiting the decision?s application. Representative Grayson?s comment, and the fevered reaction among his fellow Democrats, suggests a thin commitment to the Bill of Rights and our most basic freedoms.

It is worth noting that the four liberal members of the Supreme Court, led by Justice Stevens, were so willing to give a free hand to government censors that they wrote a 90-page dissent in which they attempt to justify allowing the government to decide who has the right to engage in political speech and on what terms. A 5-4 decision: Bear that in mind when the next vacancy on the Court comes up.

Full post as published by Bench Memos - National Review Online on January 22, 2010 (boomark / email).