This morning, the Supreme Court handed down its opinion in the case of Citizens United v. FEC. The upshot of the decision is that “the Government may not suppress political speech on the basis of the speaker’s corporate identity.” Federal law prohibited corporations from donating money “for speech defined as “electioneering speech” or for speech expressly advocating the election or defeat of a candidate.” The Court held that corporations cannot be prohibited from speaking on political matters. Predictably, President Obama has already decried the ruling as a blow to the little guy and a helping hand to evil corporations.
Lost in most of the coverage of the decision (and conveniently ignored by President Obama, former “senior lecturer” at the University of Chicago Law School), is that, as Justice Kennedy points out, the ban on electioneering speech never applied to one type of corporation. And what type of corporation would be exempt from laws and regulations that chill the speech of all its corporate brethren? Why, the media corporation, as Justice Kennedy points out on page 35 of the opinion:
Media corporations are now exempt from 441b’s ban on corporate expenditures. Yet media corporations accumulate wealth with the help of the corporate form, the largest media corporations have “immense aggregations of wealth,” and the views expressed by media corporations often “have little or no correlation to the public’s support” for those views.
The law drew a line between two types of corporations: media corporations, and everyone else. Intentionally or not, it tilted political power toward the media and away from every other type of corporation (many of which, as Justice Kennedy observed, have limited resources, unlike, say, CNN.) The mere fact that media organizations were able to speak at all in the 30 days leading up to an election gave them an advantage over other corporations. Even if a media corporation tries to be scrupulously fair in its coverage of an election, the inevitable choice to cover one story over another gives an advantage to one side. By removing the government’s muzzle from corporations, the Supreme Court has restored some balance to the playing field.
Surely the little guy has an interest in hearing election messages from corporations. The government gets its message out, and the media gets its message out. Why shouldn’t ordinary, private-sector corporations be able to speak as well? Unless he is a member of the Civil Service or a public-employees’ union, the little guy’s livelihood is usually dependent on a corporation — not the government or the media. Why shouldn’t he be able to hear that Candidate X’s support for cap and trade will destroy his employer?
One of the most cherished metaphors in First Amendment jurisprudence is that of “the marketplace of ideas.” If the little guy is too dumb to sort through the marketplace’s offerings from big government, big journalism, and big oil, how can you expect him to be smart enough to vote?
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