Supreme Court Justice Samuel Alito on Tuesday defended his position in the 2010 Citizens United v. Federal Election Commission case, arguing it was essential to preserve the free speech rights of media outlets and other corporations despite becoming a “lightning rod” for attacks against campaign finance rules.
The Republican-appointed member gave his assessment of the 5-4 decision during a question and answer session with John G. Malcolm, vice president at the Institute for Constitutional Government for the Heritage Foundation.
Alito, 72, argued that without the protections granted in the 2010 case, news outlets and entertainment companies owned by corporations could forfeit their free speech rights.
“If corporations did not have free speech rights and the government could regulate all of this as it wished — wow,” the justice said. “Who wants that regime?”
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During the conversation, the conservative justice championed the fundamental values of First Amendment protections, arguing that “any speech involving public issues — involving politics, government, history, economics, law, science, religion, philosophy, the arts, anything of that level of importance — the general rule has to be that the government has to stay out.”
Alito added that “most people don’t know exactly what was held [in Citizens United], and it has instead become kind of a lightning rod for everything that a lot of people don’t like about campaign finance and about the way campaigns are conducted. … All of that is not, cannot be attributed to Citizens United.”
Malcolm recalled that Alito issued a dissent in several First Amendment cases in which the majority ruled to protect ideas such as the hateful protests by Westboro Baptist Church members at a military funeral or protected those who publish videos depicting animal cruelty. The justice said Tuesday that those matters fell into the category of certain exceptions for the First Amendment.
“But it’s also important to keep in mind what the First Amendment says. And it does not protect the right of everybody to say anything that they want at any time at any place, and in any way. It protects the freedom of speech,” Alito added.
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Alito notably dissented in a May high court decision that refused to take up a case that sought to block Texas from enforcing its law that forces large social media platforms to host speech they otherwise would find objectionable. Justices Neil Gorsuch and Clarence Thomas also said they would grant the application for the case, NetChoice v. Paxton.
In response to Alito’s comments, University of California law professor Rick Hasen suggested Alito’s statements may have contradicted his earlier willingness to hold private Big Tech companies accountable for censorship on their platforms.
“I plan to quote this language back to Justice Alito if and when the Court decides whether states like Texas can force social media companies to carry the speech of politicians who foment hate speech, undermine election integrity or incite violence,” Hasen tweeted.
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Brad Smith, an attorney and former commissioner for the FEC, clarified in a tweet that Hasen’s argument might only show Alito’s position as “superficially inconsistent.”
“The law prior to Citizens United was an effort to suppress speech by corporations. The social media laws are efforts to stop corporations from suppressing speech by others,” Smith added.
