No middle ground? Reflections on the citizens United decision

Iowa Law Review

Volumn 96, Issue 2, 2011, Pages 649-665

  Bezanson, Randall P ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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EID: 79951612777     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (128)

1. Citizens United v. FEC, 130 S. Ct. 876, 902 (2010) ("reaffirm[ing] the First Amendment principle" stated in First National Bank of Boston v. BeUotti, 435 U.S. 765 (1978)).
2. Id. at 905 (citing Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 707 (1990) (Kennedy.J., dissenting), overruled by Citizens United, 130 S. Ct. 876).
3. Id. at 913.
4. Id. at 908.
5. Id. at 907 (alteration in original) (quoting McConnell v. FEC, 540 U.S. 93, 257-58 (2003) (Scalia, J., concurring in part, concurring in the judgment in part, and dissenting in part), overruled by Citizens United, 130 S. Ct 876).
6. Id. at 909.
7. Id. at 905 (quoting Austin, 494 U.S. at 691 (Scalia.J., dissenting)).
8. Id. (citing Austin, 494 U.S. at 707 (Kennedy.J., dissenting)).
9. For a full discussion of diis view, and of Justice Scalia's Austin opinion that hints at it, see generally Randall P. Bezanson, Institutional Speech, 80 IOWA L. REV. 735 (1995).
10. See also infra Parts III, rv (discussing Justice Scalia's corporate-speech position and Citizens United $ effect on Austin).
11. E.g., Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 585 n.7 (1983) (taxes "singling out the press").
12. Gertz v. Robert Welch, Inc., 418 U.S. 323, 337-38 (1974) (privilege for media libels).
13. This is not necessarily a new phenomenon in die Court's decisions. See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 654 (2000) (unintended speech).
14. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 570 (1995) (audience construction of speech).
15. RANDALL P. BEZANSON, ART AND FREEDOM OF SPEECH 83-152 (2009).
16. As I have put it on many occasions, protection is accorded to the artifact of speech and communication. See BEZANSON, supra note 11, at 102.
17. In his concurring opinion, Justice Scalia, joined by Justice Alito, says: The dissent says that when the Framers "constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind." That is no doubt true. All the provisions of the Bill of Rights set forth die rights of individual men and women-not, for example, of trees or polar bears. But the individual person's right to speak includes the right to speak in association with other individual persons. Citizens United, 130 S. Ct. at 928 (Scalia, J., concurring) (quoting id. at 950 (Stevens, J., concurring in part and dissenting in part)).
18. See id. at 928 nn.6-7.
19. Randall P. Bezanson, The Developing Law of Editorial Judgment, 78 NEB. L. REV. 754, 757 (1999) (noting that the freedom of the press extends to institutional speakers).
20. First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 778 n.14 (1978) (corporation is protected by the First Amendment). In Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 (1886), the Supreme Court held tiiat corporations were "persons" for purposes of the Fourteenth Amendment, but this and many other cases that followed were grounded on equal-treatment and due-process protections, not individual freedoms such as the freedom of speech in die First Amendment. It was not until the Bellotti decision that die Court expressly stated tiiat corporations can be First Amendment speakers, but the Court left open the nature and scope of die rights of corporations under the First Amendment. Bellotti, 435 U.S. at 778 n.14.
21. Citizens United, 130 S. Ct. at 925 (Scalia,J., concurring).
22. Id. at 917 (Roberts, C.J., concurring). The majority opinion's "careful consideration convinces me that Congress violates the First Amendment when it decrees that some speakers may not engage in political speech at election time, when it matters most.".
23. Id. at 925.
24. Id. at 980 (Thomas.J., concurring).
25. Id. at 913 (majority opinion). This means the application of the clear and present danger test, strict scrutiny requiring a compelling state interest with means narrowly tailored to that interest, and intermediate scrutiny applied to limited subject matters in appropriate circumstances.
26. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 932-41 (3d ed. 2006).
27. Citizens United, 130 S. Ct. at 905.
28. Id. at 913.
29. Id. at 909.
30. Id. at 905.
31. This is precisely what the Court had done in many previous cases. E.g., Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990), overruled by Citizens United, 130 S. Ct. 876.
32. FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986).
33. Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).
34. Given the free-speech holding on independent expenditures, no press claim for greater privileges on that question was made or could be made.
35. Citizens United, 130 S. Ct. at 903.
36. 424 U.S. at 20-21.
37. 130 S. CL at 883 (citations omitted).
38. 357u.s.449 (l958).
39. 479U.S.238 (1986).
40. 453 U.S.182 (1981).
41. See Bezanson, supra note 9, at 748-50.
42. For fully protected First Amendment speech, prohibition of speech to avoid a perception of corruption, even for a short period, would be unconstitutional.
43. See Virginia v. Black, 538 U.S. 343 (2003).
44. Brandenburg v. Ohio, 395 U.S. 444 (1969).
45. 408 U.S. 665 (1972) (denying special reporter privilege from criminal subpoena).
46. E.g., Bartnicki v. Vopper, 532 U.S. 514 (2001) (finding that application of wiretap acts to media violated their free-speech rights).
47. Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575 (1983) (taxes "singling out the press").
48. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (privilege for media libels).
49. As Edwin Baker has argued, "both statutory schemes and Supreme Court precedent treat the press as a speaker differently than they treat individual speakers in areas including die freedom not to speak, the right to speak anonymously, and in copyright law.".
50. Russell H. Falconer, Note, Institutional Rights, Individual Litigants: Standing To Sue Under the Press Clause, 87 TEX. L. REV. 1223, 1228 (2009) (citing C. Edwin Baker, The Independent Significance of the Press Clause Under Existing Law, 35 HOFSTRAL. REV. 955, 970-82 (2007)). He continues, "Similarly, die law also distinguishes between die press and nonpress business in areas such as informational privacy, campaign-finance law, commercial speech, and professional licensing.".
51. Id. (citing Baker, supra, at 985-1012).
52. Citizens United v. FEC, 130 S. Ct. 876, 905 (2010).
53. See, e.g., Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 813 (1996) (Thomas, J., concurring in die judgment in part and dissenting in part).
54. Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241 (1974)
55. Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969); Associated Press v. United States, 326 U.S. 1 (1945).
56. See 39 U.S.C. § 3685 (2006); Postal Service Appropriations Act of 1912, ch. 389, 37 Stat. 539, 553-54.
57. In an early case, Lewis Publishing Co. v. Morgan, die Court upheld the 1912 Postal Act under die First Amendment. 229 U.S. 288, 313 (1913).
58. See Leadiers v. Medlock, 499 U.S. 43g (1991); Minneapolis Star 6f Tribune Co., 460 U.S. 575.
59. 130 S. Ct. at 905 (quoting Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 691 (1990) (Scalia, J., dissenting), overruled by Citizens United, 130 S. Ct. 876).
60. see Leathers, 499 U.S. 439; Minneapolis Star & Tribune Co., 460 U.S. 575.
61. See Ian S. Speir, In Search of an Originalist View of the Corporation (June 2, 2010) (unpublished manuscript), avaliable at http://ssrn.com/abstract= i6i95io.
62. Citizens United, 130 S. Ct. at 928 (Scalia, J., concurring).
63. see infra Part III.
64. Id. at 907 (majority opinion) (quoting McConnell v. FEC, 540 U.S. 93, 257-58 (2003) (Scalia, J., concurring in part, concurring in the judgment in part, and dissenting in part), overruled by Citizens United, 130 S. Ct. 876) (internal quotation marks omitted).
65. See Timothy K. Kuhner, The Separation of Business and State, 95 CALIF. L. REV. 2353, 2384 (2007).
66. 435 U.S. 765(1978).
67. Citizens United, 130 S. Ct. at 909.
68. Bellotti, 435 U.S. at 797 n.i (1978) (Burger, C.J., concurring).
69. Citizens United, 130 S. Ct. at 905-07 (quoting McConneU, 540 U.S. at 257-58 (Scalia, J., concurring in part, concurring in the judgment in part, and dissenting in part).
70. Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 680, 687, 691 (1990) (Scalia, J., dissenting), overruled by Citizens United, 130 S. Ct. 876.
71. Id. at 707 (Kennedy, J., dissenting)).
72. Id. at 905 (citing Austin, 494 U.S. at 707 (Kennedy,J., dissenting)).
73. Id. (citing Austin, 494 U.S. at 691 (Scalia.J., dissenting)).
74. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959).
75. Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) (matter of general or public importance standard), abrogated by Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (abandoning the Rosenbloom standard).
76. Compare Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (commercial speech), with Bigelow v. Virginia, 421 U.S. 809 (1975) (political speech).
77. I don't doubt that corporations must defend their interests through die political system. But is it necessary or even appropriate under die First Amendment to grant diem liberty to do so, given diat die polity in which political decisions are rooted consists of individual citizens, voters, and individual persons? Corporations are subjects of government regulation, not enactors of it.
78. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980).
79. Va. State Bd. 0/Pharmacy, 425 U.S. 748.
80. See Cent. Hudson, 447 U.S. at 564 (stating diat to impose a restriction on commercial speech, die state "must assert a substantial state interest to be achieved by [die] restrictions" and that die "limitation on expression must be designed carefully to achieve die State's goal").
81. Id.
82. Cf. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977) (holding that although a news broadcast is normally accorded First Amendment protection, the First Amendment did not bar a suit by a performer against a news broadcaster seeking damages for the unauthorized broadcast of his entire act). The Lanham Act, for example, would generally not apply to charitable or political solicitation. 15 U.S.C. § 1125(c) (3) (2006).
83. See 1 CHARLES E. MCKENNEY & GEORGE F. LONG, III, FEDERAL UNFAIR COMPETITION: LANHAM ACT § 43A, at § 6:1 (2006) ("[Protected advertising] includes traditional forms of advertising in print and broadcast media, as well as brochures, facsimiles, flyers, catalogues, and other promotional literature ⋯."). And the commercial-speech rule does not generally apply to individual speech about products, especially at the informal level, and it certainly does not apply to public or political commercial discourse by individuals. As the Court has put it, commercial speech is an advertisement of a specific product with the speaker having a strictly economic motivation for the speech.
84. See Cent. Hudson, 447 U.S. at 561.
85. See Securities Act of 1933, 15 U.S.C. §§ 77a-77aa (2006).
86. See generally LARRY D. SODERQUIST & THERESA A. GABALDON, SECURITIES REGULATION (5th ed. 2003) (discussing the foundational elements of securities regulation).
87. See, e.g., IOWA CODE §§490.101-. 1703 (2009); Business Services, IOWA SEC'Y OF STATE, http://www.sos.state.ia.us/business/profcorp.html (last visited Oct. 26, 2010).
88. See generally FOUNDATIONS OF CORPORATE LAW (Roberta Romano ed., 1993).
89. See, e.g.. Federal Food, Drug, and Cosmetic Act, ch. 675, § 502(a), (c)-(f), 52 Stat. 1040, 1050-51 (1938) (current version at 21 U.S.C. §328 (2006)) (discussing drug misbranding).
90. Drug Amendments of 1962, Pub. L. No. 87-781, § 131, 76 Stat. 780, 791-92 (current version at 21 U.S.C. § 352(n)) (discussing die FDA's process of review for safety and effectiveness).
91. see also SUSAN THAUL, THE LIBRARY OF CONG., DRUG SAFETY AND EFFECTIVENESS: ISSUES AND ACTION OPTIONS AFTER FDA APPROVAL (2005), available at http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RL3279703082005. pdf.
92. See supra note 18 and accompanying text.
93. See Bezanson, supra note 14, at 800-52.
94. Id.
95. See supra notes 34-36 and accompanying text.
96. 418 U.S. 323 (1974).
97. See supra note 10 and accompanying text.
98. Cf. Bartnicki v. Vopper, 532 U.S. 514 (2001) (private interception of phone conversations published by the press require special standard of proof of knowledge for the press publisher).
99. N.Y. Times Co. v. United States, 403 U.S. 713 (1971) (per curiam) (distinguishing Daniel Ellsburg's possible liability from that of the Times).
100. Citizens United v. FEC, 130 S. Ct. 876, 925-29 (2010) (Scalia, J., concurring).
101. Id. at 979-82 (Thomas.J., concurring in part and dissenting in part).
102. Id. at 924 (Roberts, C.J., concurring) ("None of this is to say that die Government is barred from making new arguments to support die outcome in Austin. On die contrary, it is free to do so. And of course die Court is free to accept diem. But die Government's new arguments must stand or fall on dieir own ⋯.").
103. For a fuller explication of die view, see generally Bezanson, supra note 9.
104. 2 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (1840), reprinted in DEMOCRACY IN AMERICA AND Two ESSAYS ON AMERICA 600 (Gerald E. Bevan trans., 2003).
105. Id. at 597.
106. Citizens United, 130 S. Ct. at 925-29 (Scalia,J., concurring).
107. This, of course, was the very question presented in the Austin case.
108. Citizens United, 130 S. Ct. at 925 (Scalia,J., concurring).
109. Id. at 925-29.
110. Id. at 928-29 (second, third, and fourth emphasis added) (footnote omitted) (citation omitted).
111. Id. at 928 n.7.
112. In rejecting a disqualification from First Amendment protection for "institutional speech," and citing Randall Bezanson, Justice Scalia observed, notably, that the article "would accord free speech protection to associations.".
113. Id. at 929 n.7 (citing Bezanson, supra note 9, at 775).
114. This was in response to Justice Stevens's dissent, which also cited the same article for the proposition that "institutional speech"-at least by corporations-can be disqualified as an act of speaking under the protection of the First Amendment.
115. Id. at 950 n.55 (Stevens, J., concurring in part and dissenting in part) (citing Bezanson, supra note 9, at 775).
116. Justice Stevens's view of the disqualification of speech by corporations did not reflect my own view expressed in the article, as I suggested that the speech of corporations could qualify as First Amendment speech, but its protection would be more limited than speech by or traceable to an individual. In all fairness, however, the dissent was focusing on the more limited question of liberty-based speech by individuals, and on this point the article was quite relevant. Yet it is peculiar that Justice Scalia specifically engaged Justice Stevens in an interpretation of the article and in doing so referred to free-speech protection extending "to associations," not corporations as such.
117. Buckley v. Valeo, 424 U.S. 1,21 (1976) (per curiam).
118. For a very clear statement of the goals and expressive activities of a membership organization, see the ACLU's website, AM. C.L. UNION, http://www.aclu.org (last visited Oct. 26, 2010).
119. The NRA is also quite explicit about its aims and expressive activities, and it provides a full statement explaining its candidate-endorsement system. NRA-PVFEndorsement Policy, NRA-ILA (May 11, 2010, 12:00 AM), http://www.nraila.org/Issues/Articles/Read.aspx?id=413 & issue=047.In contrast, Microsoft publishes corporate-governance information and much related corporate-policy information, and nowhere is speaking on the political issues mentioned, much less candidate endorsement.
120. See Policies and Guidelines, MICROSOFT, http://www.microsoft.com/ investor/CorporateGovernance/PoliciesAndGuidelines/default.aspx (last visited Oct. 26, 2010).
121. See supra note 78 and accompanying text.
122. Citizens United, 130 S. Ct. at 902 (stating that Bellotti "reaffirmed th[is] First Amendment principle").
123. Id. at 905 (citing Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 707 (1990) (Kennedy, J., dissenting), overruled by Citizens United, 130 S. Ct. 876).
124. Id. at 913.
125. Id. at 907 (quoting McConnell v. FEC, 540 U.S. 93, 257-58 (2003) (Scalia, J., concurring in part, concurring in the judgment in part, and dissenting in part), overruled by Citizens United, 130 S. Ct. 876) (internal quotation marks omitted).
126. Id. at 913.
127. This is the manfully broad justification used in Austin.
128. Citizens United, 130 S. Ct. at 917 (Roberts, C.J., concurring).