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.
“As Justice Breyer correctly noted,” Stevens said, “the proposed speech at issue was the kind of political activity to which First Amendment ordinarily offers its strongest protection. Nevertheless, under the Chief Justice’s opinion, the fact that the proposed speech would indirectly benefit a terrorist organization provided a sufficient basis for denying it First Amendment protection.”
So while the Citizens United majority claimed that political speech must receive sweeping protection regardless of the identity of the speaker, it looks as though the majority is going to have to start creating some categories here.
“Could the Court possibly conclude that expenditures by terrorist or foreign agents in support of a political campaign merit greater First Amendment protection than their actual speech on political issues? I think not. Indeed, I think it likely that when the Court begins to spell out which categories of non-voters should receive the same protections as the not-for-profit Citizens United advocacy group, it will not only exclude terrorist organizations and foreign agents, but also all corporations owned or controlled by non-citizens, and possibly even those in which non-citizens have a substantial ownership interest.”
Stevens provided more explanation of why he thinks Congress will be able to “impose more restrictive limitations on campaign speech than on issue advocacy.” See his entire remarks here, made available by The Huffington Post.
As The Huffington Post’s Mike Sacks notes and this blog has too the high court may have another vehicle to reconsider the sweeping majority opinion in Citizens United.
Last year the Montana Supreme Court upheld its longtime Corrupt Practices Act, a tough regulation of corporate financing of its elections. In doing so the Montana Court blasted the Citizens United majority opinion, and said it did not mean the state had to dump its strong campaign finance law. The justices may consider to review the case, and numerous public interest groups are encouraging the Supreme Court, if takes the case for review, to curtail its sweeping assertions advanced by the Citizens United majority.