Clay Calvert: Supreme Court rules for free expression


Published: Tuesday, January 26, 2010 at 6:01 a.m.
Last Modified: Monday, January 25, 2010 at 3:20 p.m.

It is fitting that in the same week the nation celebrated the life of Martin Luther King, Jr., who preached equality of rights for all people, the United States Supreme Court handed down an opinion emphasizing the equality of speech rights among all speakers -private citizens, corporations, unions and advocacy groups alike - under the First Amendment.

In Citizens United v. Federal Elections Commission, a narrow majority of the court's five conservative-leaning justices struck down a federal law making it a felony for all corporations, including nonprofit advocacy ones, either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election.

The decision is more than just a victory for corporations and unions, it's a victory for political speech in an election year when anything seems possible at the polls, as the stunning results in the Massachusetts senatorial race last week illustrated

The danger in the decision, of course, is that more and more money from powerful corporations and unions will pour freely into the political system, giving them ever more powerful voices and influence over politics. In the process, the voice of the common citizen might be drowned out in the marketplace of ideas.

But the reality is that the campaign finance reform laws that Congress and states have enacted have failed to stanch the flow of money into the electoral process. There are seemingly endless ways to make end-runs around the law that business groups and organizations have an uncanny knack for finding.

Let's face it: money facilitates speech and in this case that speech is political; expression at the core of the First Amendment.

"Speech restrictions based on the identity of the speaker are all too often simply a means to control content," Justice Anthony Kennedy wrote for the majority, emphasizing that "the First Amendment protects speech and speaker, and the ideas that flow from each."

Kennedy added that "political speech must prevail against laws that would suppress it," reasoning that "when Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful."

Whether the parade of horrors that some predict from the decision - that big corporations and unions will further dominate and control politics and, ultimately, who governs our country - remains to be seen.

But corporations have always influenced politics, just as unions have. Just this month labor unions carved out a deal with President Obama for a tax exemption related to health care.

Treating corporations and unions like people, graced with First Amendment rights, is not new. What now changes is that their rights are equal with people in the realm of speech and politics, and equality of rights - not outcomes - is central to our constitutional system.

Clay Calvert is a professor in the College of Journalism and Communications at the University of Florida and the director of the Marion B. Brechner First Amendment Project.

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