by Jeremy Leaming
At some point perhaps soon the U.S. Supreme Court’s conservative wing will have to reckon with some of its sweeping assertions in its controversial 2010 Citizens United v. FEC majority opinion.
Retired Supreme Court Justice John Paul Stevens in a methodical, thoughtful speech at the University of Arkansas Clinton School of Public Services detailed why he thinks some of the holding in Citizens United is due for reconsideration.
Stevens’ former colleague Justice Samuel Alito mouthed “not true” during President Obama’s 2010 State of the Union address when the president said Citizens United could “open the floodgates for special interests – including foreign corporations – to spend without fault in our elections.”
But the majority opinion, Stevens said “placed such heavy emphasis on ‘the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.’”
“Indeed,” Stevens continued, “the opinion expressly stated, ‘We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.’”
Given the fact that the basic proposition that undergirded the majority’s analysis is that the First Amendment does not permit the regulation of speech – or of expenditures supporting speech – to be based on the identity of the speaker or his patron, it is easy to understand why the president would not have understood that ambiguous response to foreclose First Amendment protection for propaganda financed by foreign entities.
But Justice Alito’s reaction does persuade me that in due course it will be necessary for the Court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion. For his statement that it is ‘not true’ that foreign entities will be among the beneficiaries of Citizens United offers good reason to predict there will not be five votes for such a result when a case arises that requires the Court to address the issue in a full opinion.
The former justice, the third longest serving justice on the high court, also pointed to an opinion, one he joined, that followed Citizens United. In Holder v. Humanitarian Law Project, the majority held that Congress can bar material support of terrorist groups, even if that support is advice on how to conduct peaceful protests.