Chip Babcock Communiqué

Chip Babcock Communiqué Citizens United V. Federal Election Commission is a Major Vindication of the First Amendment

President Obama mocked the decision. An ABC News/Washington Post poll found that 80 percent of Americans were opposed to the ruling, including 65 percent who strongly oppose it with "an unusually high intensity of sentiment," according to the poll. One commentator said this ruling was "a threat to our democracy." Yet when one actually reads Justice Kennedy's majority opinion, anyone who cares about the First Amendment will be thrilled. The decision vindicates free speech in the strongest terms.

The case was, after all, about a film: Hillary Clinton: The Movie, which advocated a political point of view – that is, political speech – and which the government restrained from publication on the threat of criminal prosecution. If you substituted Disney or the The New York Times for Citizens United as the filmmaker, no free speech advocate would be criticizing the decision. So what's going on?

Sadly, this decision has become embroiled in our increasingly polarized political process. The opponents of corporate money in politics (generally Democrats and liberals) deride the decision, while conservatives and Republicans applaud it. But the dialogue is not about free speech. It's about whether corporations wield too much influence in our political process. Because this is where the battle lines are drawn, the debate over the decision has largely been fought over whether corporations have free speech rights. To hold that they do not (as the dissent argued) would be a major blow to free speech.

As Justice Kennedy pointed out, some of the most important First Amendment decisions in our history were for the benefit of corporations.

He cited, among many other case where corporate speech was implicated, New York Times v. Sullivan, one of the most important First Amendment cases in our nation's history. The defendant was a publishing corporation (New York Times Co.). Can it be seriously suggested that the decision should have gone the other way because the Times was a corporation? It has long been the law that "political speech does not lose its First Amendment protections simply because its source is a corporation," as Justice Kennedy wrote citing the Supreme Court's 1986 decision in First National Bank of Boston v. Bellotti.

The president complained that the Court had overruled prior precedent. Although the Court does and should show restraint in overruling prior decisions, the precedent that was reversed was not nearly as established as the President's remarks would indicate, and this statute's "purpose and effect (was) to silence entities whose voices the Government deems to be suspect." Whatever evils the influx of corporate campaign money bring (and how much and to where is to be debated) pale in comparison to the government telling us what we can and cannot say about our political process. As Justice Kennedy wrote, "Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people."

One wonders how a First Amendment advocate could argue with these bedrock free speech principles. Yet many who would normally defend the First Amendment criticize the decision because they don't like corporate campaign speech. They should consider the damage to the First Amendment had the decision gone the other way, read the lengthy opinions and, perhaps, rethink their position.

— Chip Babcock is a partner at Jackson Walker. He can be reached at cbabcock@jw.com.