Two concepts of freedom of speech

Harvard Law Review

Volumn 124, Issue 1, 2010, Pages 143-177

  Sullivan, Kathleen M ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 79851497648     PISSN: 0017811X     EISSN: None     Source Type: Journal    
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References (295)

1. 130 S. Ct. 876 (2010).
2. President Barack Obama, State of the Union Address (Jan. 27, 2010), in 156 CONG. REC. H418 (daily ed. Jan. 27, 2010) ("With all due deference to the separation of powers, last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special inter-ests - including foreign corporations - to spend without limit in our elections.").
3. Some measure of the level of political outrage expressed in these bills can be found in the titles conferred upon them by their sponsors. See, e.g., Prevent Foreign Influence in our Elections Act, H.R. 4540, 111th Cong. (2010)
4. Corporate and Labor Electioneering Advertisement Reform Act, H.R. 4527, 111th Cong. (2010)
5. Save Our Democracy from Foreign Influence Act of 2010, H.R. 4523, 111th Cong. (2010)
6. Prohibiting Foreign Influence in American Elections Act, H.R. 4522, 111th Cong. (2010)
7. Freedom from Foreign-Based Manipulation in American Elections Act of 2010, H.R. 4517, 111th Cong. (2010)
8. Pick Your Poison Act of 2010, H.R. 4511, 111th Cong. (2010)
9. End the Hijacking of Shareholder Funds Act, H.R. 4487, 111th Cong. (2010).
10. Professor Lawrence Lessig, for example, has advocated the adoption of a constitutional amendment that would provide: "[n]othing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States dur-ing the last 60 days before an election." Lawrence Lessig, Citizens Unite, HUFFINGTON POST (Mar. 16, 2010, 7:32 AM), http://www.huffingtonpost.com/lawrence-lessig/ citizens-united-b-500438.html.
11. United States v. Eichman, 496 U.S. 310 (1990)
12. Texas v. Johnson, 491 U.S. 397 (1989).
13. In response to Texas v. Johnson, which invalidated the application to symbolic flag burning of a state criminal statute protecting venerated objects, Congress enacted the Flag Protection Act of 1989, Pub. L. No. 101-131, 103 Stat. 777 (codified at 18 U.S.C. § 700 (2006)), which the Court then invalidated as applied in United States v. Eichman. For an account of the origins of the fed-eral statute including a pre-Eichman defense of its constitutionality
14. see Geoffrey R. Stone, Flag Burning and the Constitution, 75 IOWA L. REV. 111 (1989). Miscellaneous proposals to amend the Constitution to permit prohibition of flag burning failed in Congress, although one commenta-tor thought such an amendment would be less damaging to other First Amendment values than a flag-protective statute.
15. See Frank Michelman, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337, 1339-54 (1990).
16. While the labels "liberal" and "conservative" are reductive and sometimes incoherent as de-scriptions of the Justices' approaches to constitutional decisionmaking, they have become perva-sive in popular accounts of the Court and in attempts to quantify its outcomes.
17. See, e.g., Adam Liptak, The Most Conservative Court in Decades, N.Y. TIMES, July 25, 2010, at A1 (reviewing political science studies analyzing the positions of Justices across an ideological spectrum, and sit-uating the majority of the current Court at the rightward edge of that spectrum).
18. But see id. at A19 (acknowledging that "[s]cholars quarrel about some of the methodological choices made by political scientists who assign a conservative or liberal label to Supreme Court decisions and the votes of individual justices").
19. 130 S. Ct. 1577 (2010).
20. Id. at 1592. Liberal and conservative Justices similarly align in support of free speech rights in other contexts as well. For example, in the flag-burning cases, see supra notes 5-6 and accompanying text, the majority opinions were joined by "liberal" Justices Brennan, Marshall, and Blackmun as well as by "conservative" Justices Scalia and Kennedy. Such decisions show that the free-speech-as-equality and free-speech-as-liberty theories discussed below sometimes overlap, at least when dissenting groups seek protection against government restraints. The dis-sents in these cases by Chief Justice Rehnquist and Justice Stevens do not undermine the internal structure of either theory, but simply would have upheld flag-burning bans on the ground that unique interests in preserving a symbol of national unity trumped free speech interests on any theory. See Eichman, 496 U.S. at 321-22 (Stevens, J., dissenting); Johnson, 491 U.S. at 429-34 (Rehnquist, C.J., dissenting); id. at 436 (Stevens, J., dissenting). While the flag-burning cases united free-speech-as-liberty Justices and free-speech-as-equality Justices in alliance against a na-tionalist view, Citizens United set free speech as liberty and free speech as equality in opposition.
21. Martin v. City of Struthers, 319 U.S. 141, 146 (1943).
22. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) ("But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is bet-ter reached by free trade in ideas ⋯ . That at any rate is the theory of our Constitution.").
23. See KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 500-01 (17th ed. 2010).
24. Citizens United, 130 S. Ct. at 946 (Stevens, J., concurring in part and dissenting in part).
25. Id. at 945.
26. Id. at 971
27. (quoting Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 659 (1990)).
28. Id. at 965.
29. Id. at 974
30. (citing Austin, 494 U.S. at 660).
31. Id. at 970.
32. Id. at 962-63. Justice Stevens suggests that the limitations would serve as a backstop to prevent corruption even if defined narrowly, as per the majority opinion, as quid pro quo corrup-tion or the currying of favoritism with candidates through the deployment of independent ads. But he devotes greater energy to arguing that such a narrow definition of "corruption" is too crabbed.
33. See id. at 964-68.
34. 494 U.S. 652.
35. Id. at 660 (citation omitted).
36. Citizens United, 130 S. Ct. at 957-58 (Stevens, J., concurring in part and dissenting in part)
37. see also id. at 971 n.69.
38. Id. at 974.
39. Id.
40. Id. at 975.
41. Professor Ronald Dworkin, for one, has given a theoretical account of the underpinnings of this free-speech-as-equality view. See RONALD DWORKIN, SOVEREIGN VIRTUE: THE THE-ORY AND PRACTICE OF EQUALITY 121 (2000) (defining liberty as "an aspect of equality rather than, as it is often thought to be, an independent political ideal potentially in conflict with it")
42. id. at 134 ("We must try to reconcile liberty and equality, if we care for liberty, because any genuine conflict between the two is a contest liberty must lose.")
43. id. at 371 (allowing "regulation of free speech that improves citizen equality")
44. see also RONALD DWORKIN, IS DEMOCRACY POSSI-BLE HERE?: PRINCIPLES FOR A NEW POLITICAL DEBATE 69-70 (2006) ("I propose this initial formulation: liberty is the right to do what you want with the resources that are rightfully yours⋯ . If we accept this account of liberty, then we must also accept that liberty is not dam-aged when government restricts freedom if it has a plausible distributive reason for doing so." (footnote omitted)).
45. See, e.g., Gitlow v. New York, 268 U.S. 652, 672 (1925) (socialist, communist, and anarchist speech)
46. Debs v. United States, 249 U.S. 211, 216-17 (1919) (socialist speech)
47. Schenck v. United States, 249 U.S. 47, 52-53 (1919) (socialist speech).
48. 395 U.S. 444 (1969) (per curiam).
49. See id. at 447-48.
50. 376 U.S. 254 (1964).
51. Id. at 279-80.
52. See id. at 275.
53. See United States v. Eichman, 496 U.S. 310, 319 (1990)
54. Texas v. Johnson, 491 U.S. 397, 420 (1989).
55. Martin v. City of Struthers, 319 U.S. 141, 146 (1943) (finding door-to-door distribution of leaflets "essential" to such causes)
56. see also Saia v. New York, 334 U.S. 558, 559-60 (1948) (invali-dating an ordinance prohibiting the use of amplification devices without the permission of the police chief after the ordinance was applied to a Jehovah's Witness)
57. Hague v. CIO, 307 U.S. 496, 516 (1939) (opinion of Roberts, J.) (upholding a challenge by a labor union to an ordinance that imposed a permit requirement to hold assemblies in streets and parks).
58. See Schneider v. State, 308 U.S. 147, 162-65 (1939) (invalidating four cities' ordinances for-bidding distribution of leaflets).
59. See Cox v. Louisiana, 379 U.S. 536, 544-45, 550 (1965) (invalidating the conviction of the leader of a civil rights demonstration for disturbing the peace after finding that the police could handle the hostile crowd)
60. Edwards v. South Carolina, 372 U.S. 229, 229-31, 235 (1963) (reversing the breach of peace convictions of 187 black student demonstrators who drew a large crowd while marching in protest of racial discrimination).
61. But see Feiner v. New York, 340 U.S. 315, 319-20 (1951) (upholding a conviction for disorderly conduct after finding sufficient government interest to overcome the First Amendment right at stake).
62. See Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 126, 134-36 (1992) (invalidating a county ordinance requiring demonstrators to pay a fee to obtain a permit for parades and assem-blies, on the basis that the costs of such events would "exceed[] the usual and normal cost of law enforcement,"
63. id. at 126.
64. 391 U.S. 563 (1968).
65. Id. at 573-75.
66. 393 U.S. 503 (1969).
67. Id. at 512-14.
68. See generally Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413 (1989).
69. See Speiser v. Randall, 357 U.S. 513, 528-29 (1958).
70. See FCC v. League of Women Voters, 468 U.S. 364, 402 (1984).
71. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 536-37 (2001).
72. Citizens United, 130 S. Ct. at 975 (Stevens, J., concurring in part and dissenting in part).
73. Id. at 969.
74. Id. at 957
75. (quoting McConnell v. FEC, 540 U.S. 93, 205 (2003)).
76. Id. at 965
77. (citing Supplemental Brief for the Appellee at 17, Citizens United, 130 S. Ct. 876 (No. 08-205), 2009 WL 22193000 at *17 (noting $13.1 trillion combined revenues of Fortune 100 companies during previous election cycle)).
78. Id. at 907 (majority opinion).
79. Justice Stevens also would have found media corporations protected by the Free Press Clause and nonprofit advocacy groups protected by the exception from FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986).
80. Citizens United, 130 S. Ct. at 951-52, 955 (Stevens, J., concurring in part and dissenting in part).
81. Citizens United, 130 S. Ct. at 930 (Stevens, J., concurring in part and dissenting in part).
82. Id. at 971 n.72 (citation omitted)
83. see also id. (noting that Austin's references to the "state- conferred" advantages of corporations did not determine its holding (internal quotation marks omitted)).
84. 435 U.S. 765 (1978).
85. Id. at 767.
86. Id. at 823 (Rehnquist, J., dissenting)
87. (quoting Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 636 (1819)). Whether the state-conferred nature of the corporate form establishes grounds for limiting the constitutional rights of corporations is an ancient controversy.
88. See Adam Winkler, Corporate Personhood and the Rights of Corporate Speech, 30 SEATTLE U. L. REV. 863, 863-64 (2007) (noting that Dartmouth College reflected not only the view that state chartering of corporations made them "unlikely holders of so-called rights against the government" but also the view that corporations existed as a result of contracts entered into by "real individuals" who have "constitutional rights against the state").
89. For the view that, today, "[t]he state-creation or state-privilege theory is deeply flawed as a justification for denying First Amendment protection to corporate speech" because "[c]orporate features are adopted by private contract rather than as a result of legislative favor as they were at the time of Dartmouth College," see Larry E. Ribstein, Corporate Political Speech, 49 WASH. & LEE L. REV. 109, 121 (1992).
90. See, e.g., Rust v. Sullivan, 500 U.S. 173, 194 (1991) (Rehnquist, C.J.) (upholding family planning subsidies conditioned on forgoing advocacy or counseling of abortion on the ground that, "when the Government appropriates public funds to establish a program it is entitled to de-fine the limits of that program")
91. FCC v. League of Women Voters, 468 U.S. 364, 402-03 (1984) (Rehnquist, J., dissenting) (objecting to the majority's holding that the government may not condi-tion public broadcasting subsidies on refraining from editorializing, suggesting that the majority had depicted the government as "the Big Bad Wolf cruelly forbid[ding] Little Red Riding Hood to take to her grandmother some of the food that she is carrying in her basket," when "a truer pic-ture of the litigants" would show that "some of the food in the basket was given to Little Red Riding Hood by the Big Bad Wolf himself, and that the Big Bad Wolf had told Little Red Riding Hood in advance that if she accepted his food she would have to abide by his conditions")
92. Bd. of Educ. v. Pico, 457 U.S. 853, 910 (1982) (Rehnquist, J., dissenting) (rejecting the majority's heigh-tened scrutiny of book removal from a public school library, reasoning that "actions by the gov-ernment as educator do not raise the same First Amendment concerns as actions by the govern-ment as sovereign").
93. See supra notes 34-45 and accompanying text.
94. Further support for this reading is found in Justice Stevens's disagreement with the majori-ty that previous speaker-based limits on the speech of public school students and public em-ployees can be upheld simply as a condition of the government's engagement in a "governmental function" - that is, as conditions on the "privilege" of attending public schools or holding public jobs. Compare Citizens United, 130 S. Ct. at 899-900
95. and id. at 946 n.46 (Stevens, J., concurring in part and dissenting in part)
96. with id. at 971 n.72.
97. Id. at 972 (Stevens, J., concurring in part and dissenting in part).
98. Id.
99. Id.
100. (quoting Martin H. Redish, The Value of Free Speech, 130 U. PA. L. REV. 591, 594 (1982)) (internal quotation mark omitted).
101. Id.
102. Id. (emphasis added).
103. Id. at 965.
104. For elaboration of the view that corporate speech is necessarily instrumental because corporate managers are legally obligated to pursue profit maximization on behalf of shareholders, see Daniel J.H. Greenwood, Essential Speech: Why Corporate Speech Is Not Free, 83 IOWA L. REV. 995, 1001-04 (1998), which argues that such a limited perspective undermines any corporate claim to speech rights.
105. Citizens United, 130 S. Ct. at 974 (Stevens, J., concurring in part and dissenting in part).
106. Id.
107. See id. at 977 ("[The ruling] will undoubtedly cripple the ability of ordinary citizens, Con-gress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.").
108. 395 U.S. 367 (1969).
109. Id. at 370-71.
110. Id. at 387 (analogizing to sound trucks).
111. Id. at 394. Writing for the Court, Justice White grounded the decision in one very specific market failure - the monopolies that resulted from the technological fact of spectrum scarcity - and expressly declined to reach the broader theory propounded in the case: [Q]uite apart from scarcity of frequencies, ⋯ Congress does not abridge freedom of speech or press by legislation directly or indirectly multiplying the voices and views pre-sented to the public through time sharing, fairness doctrines, or other devices which lim-it or dissipate the power of those who sit astride the channels of communication with the general public.
112. Id. at 401 n.28 (citation omitted).
113. This theory has some resonance with the dissenters' view in Citizens United. In supporting government intervention to improve any given distribution of speaking power, the free-speech-as-equality view assumes that "[t]here is no 'natural' version of public dialogue that the First Amendment could prohibit the government from distorting." C. Edwin Baker, Turner Broadcasting: Content-Based Regulation of Persons and Presses, 1994 SUP. CT. REV. 57, 85.
114. Citizens United, 130 S. Ct. at 929 (Scalia, J., concurring).
115. See, e.g., U.S. CONST. amend. V (Due Process and Self-Incrimination Clauses).
116. Id. amend. I.
117. See Citizens United, 130 S. Ct. at 904
118. ("[T]he worth of speech 'does not depend upon the identity of its source, whether corporation, association, union, or individual' ⋯ ." (quoting First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 777 (1978))).
119. Id. at 928 (Scalia, J., concurring) (emphasis omitted).
120. While Chief Justice John Marshall famously wrote in Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819), that "[a] corporation is an artificial being, invisible, intangible, and existing only in contemplation of law," he also wrote that "[i]t is chiefly for the purpose of clothing bodies of men, in succession, with ⋯ qualities and capacities, that corporations were invented, and are in use."
121. Id. at 636.
122. If the dissent's analysis maps onto the structure of equal protection law, the majority's maps onto the structure of substantive due process analysis - albeit pre-New Deal. Just as Lochner v. New York, 198 U.S. 45 (1905), invalidated maximum-hours laws for bakers (holding that neither the redistributive end of leveling inequalities of bargaining power between employers and em-ployees nor the paternalistic end of protecting employees from accepting bad bargains may justify such a law, see id. at 64), the Citizens United majority reiterates that the First Amendment itself forecloses government redistribution of speaking power and expresses skepticism toward any view that government may regulate corporate speech to protect listeners from their possible responses to political ads.
123. For the insight that the commercial speech cases similarly track the antidistribu-tion and antipaternalist rationale of Lochnerian substantive due process, see Thomas H. Jackson & John Calvin Jeffries, Jr., Commercial Speech: Economic Due Process and the First Amendment, 65 VA. L. REV. 1, 30-33 (1979), which criticizes this approach.
124. 424 U.S. 1 (1976) (per curiam).
125. Citizens United, 130 S. Ct. at 904
126. (quoting Buckley, 424 U.S. at 48-49) (internal quotation marks omitted).
127. See id. at 905.
128. Id. at 906 (citations omitted).
129. Id. at 907.
130. Id. at 911.
131. See id. at 899 ("The Government may not ⋯ deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.").
132. See id. at 908-11.
133. Lochner accepted that protecting public health from unsafe bread or diseased workers was a permissible end, unlike redistributive or paternalistic ends, but found the law too poorly tailored to fit it. See Lochner v. New York, 198 U.S. 45, 57, 62 (1905).
134. Citizens United, 130 S. Ct. at 911.
135. Id. at 909.
136. 425 U.S. 748 (1976).
137. See id. at 770.
138. See id.
139. ("It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us."). Early commentators on this line of cases noted its similarity to Lochner. See Jackson & Jeffries, supra note 77, at 30-33.
140. See Virginia State Board, 425 U.S. at 748-49.
141. See Rubin v. Coors Brewing Co., 514 U.S. 476, 478 (1995).
142. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 534-35, 565-66 (2001).
143. See Thompson v. W. States Med. Ctr., 535 U.S. 357, 377 (2002).
144. 505 U.S. 377 (1992).
145. Shortly after R.A.V., the Court upheld against First Amendment challenge a sentencing en-hancement for racially motivated assault. See Wisconsin v. Mitchell, 508 U.S. 476, 479 (1993).
146. See R.A.V., 505 U.S. at 391-92.
147. See Charles Fried, The New First Amendment Jurisprudence: A Threat to Liberty, 59 U. CHI. L. REV. 225, 237-39 (1992).
148. See id. at 249-50.
149. See Charles R. Calleros, Paternalism, Counterspeech, and Campus Hate-Speech Codes: A Reply to Delgado and Yun, 27 ARIZ. ST. L.J. 1249, 1257-63 (1995). The result in R.A.V. was unanimous, and the decision can be explained on free-speech-as-equality as well as free-speech-as-liberty grounds
150. the R.A.V. regulation can be viewed as impermissible on political equality grounds because it was drawn on the basis of viewpoint and thus violated First Amendment equal protection for ideas. See supra pp. 146-47.
151. See Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 817 (1984) (upholding the prohibition of signs posted on public property).
152. See Garcetti v. Ceballos, 547 U.S. 410, 425-26 (2006).
153. See Morse v. Frederick, 127 S. Ct. 2618, 2629 (2007).
154. See Rumsfeld v. Forum for Academic & Inst'l Rights, Inc., 547 U.S. 47, 70 (2006).
155. But see id. at 60 ("As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do - afford equal access to military recruiters - not what they may or may not say.").
156. See Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 685 (1992).
157. See United States v. Kokinda, 497 U.S. 720, 736-37 (1990) (plurality opinion).
158. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 55 (1983).
159. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 813 (1985).
160. See Connick v. Myers, 461 U.S. 138, 154 (1983).
161. See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
162. See Morse v. Frederick, 127 S. Ct. 2618, 2622 (2007).
163. See Rust v. Sullivan, 500 U.S. 173, 192 (1991).
164. See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 583 (1998).
165. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 60 (2006).
166. 10 U.S.C. § 983 (2006).
167. McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517 (Mass. 1892).
168. Finley, 524 U.S. at 595-96 (footnote omitted).
169. See, e.g., McConnell v. FEC, 540 U.S. 93, 286 (2003) (Kennedy, J., concurring in the judg-ment in part and dissenting in part) ("The First Amendment guarantees our citizens the right to judge for themselves the most effective means for the expression of political views and to decide for themselves which entities to trust as reliable speakers.").
170. Citizens United, 130 S. Ct. at 899.
171. See id. at 904-08, 910.
172. See id. at 906-07.
173. Id. at 907.
174. Id. at 908 ("Even if § 441b's expenditure ban were constitutional, wealthy corporations could still lobby elected officials, although smaller corporations may not have the resources to do so. And wealthy individuals and unincorporated associations can spend unlimited amounts on independent expenditures. Yet certain disfavored associations of citizens - those that have taken on the corporate form - are penalized for engaging in the same political speech." (citation omitted)).
175. Id. at 906.
176. Id. at 943 (Stevens, J., concurring in part and dissenting in part)
177. 2 U.S.C. §§ 431(9)(B)(i), 434(f)(3)(B)(i) (2006).
178. Citizens United, 130 S. Ct. at 923 (Roberts, C.J., concurring).
179. See id. at 899 (majority opinion).
180. (distinguishing cases discussed by dissent, see id. at 945-46 & nn.41-45 (Stevens, J., concurring in part and dissenting in part)).
181. Id. (emphasis added).
182. In one respect, the majority significantly departs from the acceptance of conditionality that is characteristic of the free-speech-as-liberty view. Justice Kennedy expressly rejects the view that government may exact from corporations a forfeiture of speech rights because "[s]tate law grants corporations special advantages - such as limited liability, perpetual life, and favorable treat-ment of the accumulation and distribution of assets." Id. at 905
183. (quoting Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 658-59 (1990)) (internal quotation marks omitted).
184. For a discussion of other cases that illustrate this complexity, see infra pp. 165-66.
185. See supra note 9.
186. See Brandenburg v. Ohio, 395 U.S. 444, 449 (1969) (per curiam).
187. Compare R.A.V. v. City of St. Paul, 505 U.S. 377, 395-96 (1992) (invalidating the ordinance because it was drawn along impermissible lines of viewpoint and subject matter)
188. with id. at 413-14 (White, J., concurring in the judgment) (arguing that the ordinance should have been invali-dated on the basis of overbreadth because it swept in protected speech causing anger or resent-ment in addition to symbols akin to unprotected fighting words)
189. id. at 416 (Blackmun, J., concur-ring in the judgment) (same)
190. and id. at 417 (Stevens, J., concurring in the judgment) (same).
191. For explication and defense of the strong prohibition on viewpoint discrimination even in cases where viewpoints are sought to be suppressed for egalitarian ends, see Elena Kagan, Regula-tion of Hate Speech and Pornography After R.A.V., 60 U. CHI. L. REV. 873, 874-83 (1993)
192. Geoffrey R. Stone, Comment, Anti-Pornography Legislation as Viewpoint-Discrimination, 9 HARV. J.L. & PUB. POL'Y 461 (1986).
193. Under such an approach, R.A.V. would have come out the other way, upholding a regulation that was explicitly drawn to limit the power of prevailing patterns of social hierarchy. Such an approach would resemble the premise that the Equal Protection Clause should not prevent politi-cal majorities from discriminating against themselves by providing race-based preferences to tra-ditionally disadvantaged minorities. See JOHN HART ELY, DEMOCRACY AND DISTRUST 170-72 (1980).
194. For a rare illustration of such a super-egalitarian approach to freedom of speech, see Beauharnais v. Illinois, 343 U.S. 250 (1952), which upheld a criminal group libel law prohibiting racial vilification, a practice of predominant social groups toward subordinated minorities.
195. Id. at 266. Even Beauharnais, however, expressed its justification for such a law in terms of injury to reputation rather than suppression of dominant ideology.
196. See id. at 253, 255 n.5.
197. Compare Miller v. California, 413 U.S. 15, 24 (1973)
198. (holding that obscenity statutes may be consistent with the First Amendment in some cases, and setting out guidelines for this determina-tion), and Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973)
199. (upholding obscenity statutes under-stood to protect the "total community environment," id. at 58, and predominant notions of sexuality as "central to family life[ and] community welfare,"
200. id. at 63.
201. with Am. Booksellers Ass'n v. Hudnut, 771 F.2d 323, 324 (7th Cir. 1985)
202. Aff'd mem., 475 U.S. 1001 (1986)
203. (invalidating an Indi-anapolis ordinance penalizing the production and sale of pornography defined as "the graphic sexually explicit subordination of women" (quoting INDIANAPOLIS, IND., CODE § 16-3(q) (1984) (internal quotation mark omitted)).
204. See Paris Adult Theatre I, 413 U.S. at 59 ("[W]hat is commonly read and seen and heard and done intrudes upon us all, want it or not."
205. (quoting Alexander Bickel, On Pornography II: Dissenting and Concurring Opinions, PUB. INT., Winter 1971, at 25, 25-26) (internal quotation mark omitted))
206. Hudnut, 771 F.2d at 329 ("[W]e accept the premises of this legislation. Depictions of subordination tend to perpetuate subordination [and] ⋯ harm[] women's opportunities for equality and rights ⋯ ."
207. (quoting INDIANAPOLIS, IND., CODE § 16-1(a)(2)) (internal quotation mark omitted))
208. Catharine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 HARV. C.R.-C.L. L. REV. 1, 7-8 (1985) ("[P]ornography constructs the social reality of gender ⋯ . Refusing to look at what has been substantively done will institutionalize inequality in law ⋯.").
209. See Miller, 413 U.S. at 45 n.9 (Douglas, J., dissenting) ("[English obscenity law was some-times] simply a roundabout modern method to make heterodoxy in sex matters and even in reli-gion a crime."
210. (quoting ZECHARIAH CHAFEE, JR., FREE SPEECH IN THE UNITED STATES 151 (1969)) (internal quotation mark omitted)).
211. See Hudnut, 771 F.2d at 329 ("[P]ornography is central in creating and maintaining sex as a basis of discrimination."
212. (quoting INDIANAPOLIS, IND., CODE § 16-1(a)(2)) (internal quotation mark omitted)).
213. This perspective assumes that obscenity statutes might be understood as regulating view-points for their offensiveness to predominant norms, rather than, as under current obscenity law, a category of speech presumptively subject to regulation because it has little value. See Miller, 413 U.S. at 26.
214. The super-egalitarian approach to the First Amendment on display in Beauharnais was re-jected in R.A.V. and Hudnut, which invalidated statutes that aimed at serving principles of equality but did so in an impermissibly viewpoint-discriminatory way. See R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992)
215. Hudnut, 771 F.2d at 325.
216. 130 S. Ct. 2971 (2010).
217. 515 U.S. 819 (1995).
218. See id. at 845-46.
219. See id. at 895-97 (Souter, J., dissenting).
220. CLS, 130 S. Ct. at 2986
221. see id. at 2984-86 (situating the Hastings program in the line of "limited-public-forum" cases allowing viewpoint-neutral delimitations of content permissible in public programs and facilities)
222. see also id. at 2997 (Stevens, J., concurring) (emphasizing that the Hastings program is a "limited forum - the boundaries of which may be delimited by the pro-prietor" (emphases omitted)).
223. See supra note 56 and accompanying text.
224. CLS, 130 S. Ct. at 3014 (Alito, J., dissenting).
225. Rosenberger, for example, rejected an alternative argument that exclusion of the evangelical magazine was required by the Establishment Clause. See 515 U.S. at 837-46.
226. See 424 U.S. 1, 1, 19-23, 58-59 (1976) (per curiam).
227. Citizens United, 130 S. Ct. at 909 ("Citizens United has not made direct contributions to candidates, and it has not suggested that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny.").
228. Pub. L. No. 59-36, 34 Stat. 864 (1907).
229. For an account of the origins and history of these provisions, see Citizens United, 130 S. Ct. at 952-57 (Stevens, J., concurring in part and dissenting in part).
230. See generally Adam Winkler, McConnell v. FEC, Corporate Political Speech, and the Legacy of the Segregated Fund Cases, 3 ELECTION L.J. 361 (2004) (analyzing the impact of the Segregated Fund Cases on corporate speech rights, campaign finance legislation, and later Supreme Court decisions).
231. See Citizens United, 130 S. Ct. at 909-10
232. id. at 961 (Stevens, J., concurring in part and dis-senting in part).
233. Cf. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 428 (1993) (finding no basis for distinguishing categorically commercial advertisements from noncommercial periodicals dis-tributed from newsracks).
234. Citizens United, 130 S. Ct. at 897 ("Even if a PAC could somehow allow a corporation to speak - and it does not - the option to form PACs does not alleviate the First Amendment problems with § 441b. PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations.").
235. See, e.g., McConnell v. FEC, 540 U.S. 93, 266 (2003) (Thomas, J., concurring in part and dissenting in part) (arguing, in an opinion joined by Justice Scalia, that a majority opinion with respect to Titles I and II of the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (codified as amended in scattered sections of 2, 8, 18, 28, 36, and 47 U.S.C.), "contin-ue[d] the errors of Buckley v. Valeo[] by applying a low level of scrutiny to contribution ceilings")
236. Nixon v. Shrink Mo. Gov't PAC, 528 U.S 377, 407-09 (2000) (Kennedy, J., dissenting) (criticizing the "wooden" distinction between contributions and expenditures, id. at 407, and stating, "I would overrule Buckley," id. at 409).
237. 424 U.S. 1, 143 (1976) (per curiam).
238. For accounts of this phenomenon of substitution effects, see Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77 TEX. L. REV. 1705, 1713 & n.41 (1999)
239. Kathleen M. Sullivan, Against Campaign Finance Reform, 1998 UTAH L. REV. 311, 312-13
240. Kathleen M. Sullivan, Political Money and Freedom of Speech, 30 U.C. DAVIS L. REV. 663, 688 (1997).
241. See Nixon, 528 U.S. at 406-07 (Kennedy, J., dissenting) (arguing that Buckley's split result had "adverse, unintended consequences," forcing
242. id. at 406 - in all, a "misshapen system" that "mocks the First Amendment,"
243. id. at 407.
244. Pub. L. No. 107-155, 116 Stat. 81 (codified as amended in scattered sections of 2, 8, 18, 28, 36, and 47 U.S.C.).
245. See McConnell, 540 U.S. at 122-33 (describing the rise of "soft money" after Buckley and Congress's reaction).
246. Id. at 133.
247. Citizens United, 130 S. Ct. at 940 (Stevens, J., concurring in part and dissenting in part).
248. See id. at 962
249. McConnell, 540 U.S. at 260 (Scalia, J., concurring in part and dissenting in part) (noting congressional members' concern about "attack ads" in enacting BCRA and suggest-ing that "[t]here is good reason to believe that the ending of negative campaign ads was the prin-cipal attraction of the legislation").
250. Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 660 (1990).
251. See, e.g., Brief of Amicus Curiae National Rifle Association in Support of Appellant on Supplemental Question at 5-15, Citizens United, 130 S. Ct. 876 (No. 08-205), 2009 WL 2359481, at *5-15 [hereinafter NRA Amicus Brief]
252. Brief of Family Research Council et al. as Amici Curiae in Support of Appellee at 22-26, FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) (No. 06-969), 2007 WL 894820, at *22-26 [hereinafter Family Research Council Amicus Brief] (on which the author was counsel of record). Some commentators likewise urged the Court to adopt this approach.
253. See, e.g., Stuart Taylor, Jr., Campaign Finance and Corporations, NAT'L J., July 11, 2009, at 15, 15 (urging the Court to adopt "a principled, pragmatic, nonideological line between business corporations and nonprofit advocacy corporations").
254. See Transcript of Oral Argument at 43-45, Citizens United, 130 S. Ct. 876 (No. 08-205), available at http://www.supremecourt.gov/oral-arguments/argument- transcripts/08-205[Reargued] .pdf. In his dissent, Justice Stevens noted specifically that the Court had "bypassed [the] ground, not briefed by the parties," urged in NRA Amicus Brief, supra note 167, at 5-15, 2009 WL 2359481 at *5-15, of "allowing certain nonprofit corporations to pay for electioneering communi-cations with general treasury funds, to the extent they can trace the payments to individual con-tributions." Citizens United, 130 S. Ct. at 937 n.15 (Stevens, J., concurring in part and dissenting in part).
255. 2 U.S.C. § 441b(c)(2) (2006), invalidated by Citizens United, 130 S. Ct. 876.
256. Id. As Senator Jeffords explained, under the provision, "[a]ny organization can, and should be able to, use their grassroots communications to urge citizens to contact their lawmakers. Under the Snowe-Jeffords provisions any organization still can undertake this most important task."
257. 147 CONG. REC. 4464 (2001).
258. 2 U.S.C. § 441b(c)(6).
259. 147 CONG. REC. 4502 (2001). Senator Wellstone conspicuously referred to the groups by name: "[I]t can be the NRA, it can be the Christian right, it can be the Sierra Club."
260. Id.
261. 2 U.S.C. § 454.
262. See Citizens United, 130 S. Ct. at 891-92.
263. See id. at 892.
264. See id. at 905-06.
265. For a counterargument articulating possible grounds for a for-profit/nonprofit distinction, see Family Research Council Amicus Brief, supra note 167, at 16-21, 2007 WL 894820 at *16-21.
266. Ribstein, supra note 55, at 141.
267. Democracy is Strengthened by Casting Light on Spending in Elections Act (DISCLOSE Act), H.R. 5175, 111th Cong. (2010). Congressman Van Hollen (D-Md.) introduced the Act on April 29, 2010
268. and it passed the House on June 24 in a 219-206 vote divided mostly along party lines, see Final Vote Results for Roll Call 391, OFFICE OF THE CLERK, U.S. HOUSE OF REP-RESENTATIVES, http://clerk.house.gov/evs/2010/roll391.xml (last visited Oct. 2, 2010). The DIS-CLOSE Act, S. 3628, 111th Cong. (2010), fell short of cloture in the Senate on July 27, 2010, by a vote of 57-41-2
269. again along party lines, see U.S. Senate Roll Call Votes 111th Congress - 2nd Session, U.S. SENATE: LEGISLATION & RECORDS, http://senate.gov/ legislative/LIS/roll-call-lists/roll-call-vote-cfm.cfm?congress=111&session= 2&vote=00220#position (last visited Oct. 2, 2010). The DISCLOSE Act would have subjected corporations to a variety of increased disclo-sure and disclaimer obligations, including reporting the identity of donors of funds used to make campaign-related expenditures, H.R. 5175 § 301, and "stand by your ad requirements" that CEOs or other officers appear on camera to state personal approval of corporate-funded ads, H.R. 5175 § 214(b).
270. Citizens United, 130 S. Ct. at 913-16.
271. Id. at 914
272. (citing Buckley v. Valeo, 424 U.S. 1, 66 (1976) (per curiam)).
273. See Brown v. Socialist Workers '74 Campaign Comm. (Ohio), 459 U.S. 87 (1982).
274. While the Court last Term upheld against a facial First Amendment challenge the mandated public disclosure of the identity of those who signed petitions to place a referendum measure on the ballot, at least eight Justices agreed that as-applied exceptions might be permissible upon demonstration of particularized threats of retaliation and reprisal. Doe v. Reed, 130 S. Ct. 2811, 2821 (2010)
275. see id. at 2822 (Alito, J., concurring)
276. id. at 2831 (Stevens, J., concurring in part and concurring in the judgment)
277. id. at 2845-47 (Thomas, J., dissenting).
278. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 466 (1958).
279. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995).
280. See U.S. CONST. amend. V.
281. See Citizens United, 130 S. Ct. at 979-82 (Thomas, J., dissenting).
282. Justice Thomas ex-pressed similar views when he concurred in McIntyre, 514 U.S. at 358 (Thomas, J., concurring in the judgment)
283. and filed the lone dissent in Doe, 130 S. Ct. at 2837 (Thomas, J., dissenting).
284. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976) ("[T]he protection afforded is to the communication, to its source and to its recipients both.").
285. See id. at 771 n.24.
286. Citizens United, 130 S. Ct. at 916.
287. Section 101 of the DISCLOSE Act, H.R. 5175, 111th Cong. (2010)
288. for example, would have required "a person who enters into a contract" with the government worth more than ten million dollars, id. § 101(a)(2)(B), as well as certain "[r]ecipients of [a]ssistance [u]nder [the] Troubled Asset Program,"
289. id. § 101(b), to refrain from "making any independent expenditure or disbursing funds for an electioneering communication,"
290. id. § 101(a)(2)(B).
291. Citizens United, 130 S. Ct. at 930 (Stevens, J., concurring in part and dissenting in part).
292. See supra note 156 and accompanying text. Elsewhere in the opinions, to be sure, the ma-jority appears to approve some forms of conditioned government benefits, see supra p. 162, while the dissenters dispute the breadth of government's freedom to limit speech because the govern-ment is engaged in governmental functions, see supra note 58 and accompanying text.
293. 130 S. Ct. 2971 (2010)
294. see pp. 165-66.
295. 130 S. Ct. 2811 (2010).