Overturning the Citizens United decision via constitutional amendment is a goal of Citizens for Truth as well as groups such as Rootstrikers and Move to Amend. To present our case against Citizens United, it is important for us to understand the reasoning behind both the majority and the minority opinions of the court, especially since it was a partisan 5-4 decision (as mentioned in a previous post).
This is the first part of a series of posts outlining the 7 major questions considered by the Supreme Court in making its decision and the majority and minority opinions for each. Justice Kennedy wrote the majority opinion in the Citizens United case, and Justice Stevens wrote the minority opinion.
The first question addresses free speech: “Should Government ration, control, or limit speech for the sake of democracy?” There are 4 major aspects to this question. They, along with the majority and minority arguments for/against each, are listed below:
1. Does money equal speech?
Spending money is necessary for speech and because BCRA (McCain-Feingold) limits spending, it limits free speech, thereby violating the First Amendment protection of free speech.
Just because corporations have access to large sums of money that can be spent on speech doesn’t mean they should be able to spend it on as much speech as they wish. Justice Stevens points out that the Constitution was designed to give power to individual people, not to legal entities like corporations. Therefore, corporations “should not be given speech protections under the First Amendment”. [When the Constitution was written, American corporations as we know them did not exist, and those that were allowed were temporary entities intended to aid activities for the public good. The American Revolution was not only a revolt against Britain itself, but also against British corporations (e.g. the British East India Company) — for more information about the history of corporations, click here].
2. Does money influence the “marketplace of ideas”?
Government should not “ration” speech by interfering in the “marketplace of ideas”. (The market forces will determine what can be presented.)
Corporations have the potential to dominate the “marketplace of ideas” with their spending and “give the impression of widespread support regardless of actual support,” thereby marginalizing the speech of individuals and groups.
3. Should there be balance/fairness of speech?
Government should not “balance” speech by restricting those who can buy it. It is not up to legislatures or courts to create a sense of “fairness” by restricting speech.
Corporations can buy a disproportionate amount of free speech and “drown out” other points of view thereby distorting the public debate.
4. Can there be too much free speech?
There is “no such thing as too much free speech”. The public has a right to all information and to determine the reliability and importance of the information.
The argument that there is “no such thing as too much free speech” is a “straw man” argument, because it is not equivalent to the First Amendment protection of free speech. Previous cases have upheld the idea that some forms of speech (e.g. obscenity restrictions, slander, libel and “fighting words”) are not protected by the First Amendment.