February 23, 2011

All You Are Is Wrong

As a lawyer, and an appellate lawyer at that, I've gotten used to the fact that most of the public knows very little about a Supreme Court decision before popping off about it.  News coverage of those things is sketchy, at best, and rarely comes to grips with the nuances of a particular case.  For criminal cases, especially, anything other than "defendant loses" causes most people to just flip their shit.  I'm used to it.

Still, it bothers me when a case that does get big news coverage nevertheless is completely misunderstood by the public at large.  The most recent one that makes me shake my head and mutter obscenely to myself when I hear people talk about it - usually from the left - is last year's Citizens United case.

The nuts and bolts of the case are pretty simple, as laid out by Floyd Abrams:
Citizens United is a conservative group partially funded by corporate grants. It prepared a documentary denouncing in the harshest terms then-Senator Hillary Clinton when she was considered the front-runner for the Democratic nomination for President in 2008. The organization sought to show the documentary on Video-on-Demand during one of the late-campaign 'blackout periods' during which the Bipartisan Campaign Reform Act of 2002 (BCRA) banned independent expenditures by corporations or unions supporting or opposing the election of candidates on television, cable, or satellite.
Citizens United went to court, arguing that BCRA violated the First Amendment.  And how couldn't it?  The state clamping down harder on political speech the closer you get to an election - isn't that the kind of thing the First Amendment is designed to prevent?  Seems like it, on its face, anyway.

The counter argument, of course, is that there's too much money in politics and allowing groups like Citizens United to dump even more into it in the guise of quasi-partisan ads (whether 30-second spots or feature-length docs) is a kind of influence buying.  We limit the amount of money a person can give a candidate, why not limit how much he can say about a candidate, too?

The Supreme Court, correctly, in my view, ruled in favor of Citizens United in a 5-4 vote that had come under harsh criticism.  In spite of the split, it really wasn't all that radical:
Justice Kennedy’s analysis was rooted in two well-established legal propositions. The first, that political speech—not to say political speech about whom to vote for or against—is at the core of the First Amendment, is hardly novel. First Amendment theorists have occasionally debated how far beyond political speech the Amendment’s protection should be understood to go, but there has never been doubt that generally, as Justice Kennedy put it, 'political speech must prevail against laws that would suppress it, whether by design or inadvertence.' Nor has it been disputed that the First Amendment 'has its fullest and most urgent applications to speech uttered during a campaign for political office.'

The second critical prong of Justice Kennedy’s opinion addressed the issue of whether the fact that Citizens United was a corporation could deprive it of the right to endorse candidates by making independent expenditures that individuals had long since been held to have. In holding that the corporate status of an entity could not negate this right, Justice Kennedy cited twenty-five cases of the Court in which corporations had received full First Amendment protection. Many of them involved powerful newspapers owned by large corporations; others involved nonpress entities such as a bank, a real estate company, and a public utility company. Justice Stevens’s dissenting opinion (but not most of the published criticism of the Citizens United ruling) took no issue with this historical record, acknowledging that '[w]e have long since held that corporations are covered by the First Amendment.'
It's that second part that has most of the folks I've seen on the left get so upset about it.  They usually pitch Citizens United as a decision that "gave" corporations the same rights as real human beings.  Not only does that criticism show a fundamental failure to grasp what the First Amendment actually says, it ignores that fact that none of the dissenting justices took issue with Kennedy's statement about corporations are covered by the First Amendment.

And why shouldn't they?  While Citizens United is the type of conservative hack group that gives the Kos Kids gas, take a look at some of the folks who supported Citizens United before the Supreme Court: the AFL-CIO and ACLU, along side such right-wing heavies as the NRA and US Chamber of Commerce.  Why?  Because damn near any advocacy group - union, lobbying firm, civil rights organization - is itself a corporation.  Cracking down on Citizens United's Hilary movie means cracking down on AFL-CIO get out the vote drives, too.  Doesn't sound so good, does it?

Another large elephant in the room that the lefty critics have is that news groups and publishers are,  yes, corporations.  As Adam Liptak wrote recently:
If corporations have no First Amendment rights, what about newspapers and other news organizations, almost all of which are organized as corporations?

The usual response is that the press is different. The First Amendment, after all, protects 'the freedom of speech, or of the press.' Since 'the press' is singled out for protection, the argument goes, media corporations enjoy First Amendment rights while other corporations do not.

But the argument is weak. There is little evidence that the drafters of the First Amendment meant to single out a set of businesses for special protection. Nor is there much support for that idea in the Supreme Court’s decisions, which have rejected the argument that the institutional press has rights beyond those of the other speakers.
'Freedom of the press,' as used in the First Amendment, literally means the printing press itself.  The 'press' as a profession didn't really exist until the next century.  So, again, if you want to shut up Citizens United for a month prior to an election, how can you avoid doing it to The New York Times or FoxNews, too?  Not to mention blogs of all shapes and sizes.

I'm not unsympathetic to the concerns of the lefty critics of Citizens United.  There is way too much money in politics.  In addition, most political speech has little to do with actually putting forth ideas and defending them, and more to do with stoking the tribal fires with not-so-subtle dog whistles.  But in order to figure out a workable solution to the problem that doesn't piss on the First Amendment, you have to confront the reality of Citizens United not the political bogeyman it's become for so many.

As with so many things, the process is simple: get the facts right first, then make an argument.  Don't do it backwards.  Otherwise, all you are is wrong.

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