This week marks the fifth anniversary of Citizens United — the most maligned, degraded, and vilified Supreme Court decision of the last decade. But it is a decision that deserves celebration. On this day five years ago, the court continued a proud tradition of protecting our right to free political speech.
The decision was controversial. It prompted President Obama to berate the Supreme Court directly during his State of the Union address. It was reviled. The New York Times declared that “the Supreme Court has thrust politics back to the robber-baron era.” And it was opposed. It led many Senate Democrats to propose a radical constitutional amendment in a misguided attempt to “overturn” the ruling.
But at its heart, the decision was right — it prevented the government from potentially using campaign laws to ban certain political books and movies.
In all of the bluster surrounding Citizens United, it is easy to forget what the case was truly about. Citizens United, a conservative nonprofit, produced a documentary, “Hillary: The Movie.” The film excoriated then-Presidential primary candidate Hillary Clinton, urging viewers not to support her run for president. But when Citizens United wanted to air its movie in 2008, it was prohibited from doing so by federal campaign finance laws. These laws banned independent speech by corporations (and unions) if it opposed (or supported) the election of any federal candidate. And Citizens United, itself a nonprofit corporation, was partially funded with for-profit corporate funds.
The question brought before the court in 2010 was whether it was constitutional for the government to ban the airing of this political movie.
During the argument, Justice Samuel Alito asked United States Deputy Solicitor General Malcolm Stewart, “What’s your answer to [the] point that there isn’t any constitutional difference between the distribution of this movie on video [on] demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, [or] providing the same thing in a book? Would the Constitution permit the restriction of all of those as well?”
Stewart confirmed he thought that such a law would be constitutional and would allow the government to ban a book published by an organization like Citizens United. There was a gasp in the courtroom.
The idea that book-banning, perhaps the quintessential act of state oppression, was something the American government thought acceptable under the First Amendment, caused quite a stir. In a second oral argument, the government’s lawyers attempted to walk back the claim — saying that books had never been banned under this statute before, and that, while a political pamphlet might be restricted, this law probably doesn’t apply to books (no definition was given as to the difference between a “pamphlet” and a “book”).
But the central position of the government did not change — Citizens United could express its opinions in the time and manner the government demanded, or it could not speak at all.
At its core, this is what the Citizens United decision was about. It wasn’t about “money in politics,” or “corporate personhood,” or “certain groups speaking more loudly than others.” Not fundamentally. Fundamentally, the case was about the power of the federal government to restrict speech. Does the first amendment permit the government to ban prohibit political movies? To ban books? The case was about free speech.
Thankfully, five justices on the court agreed the First Amendment barred such laws. As Justice Anthony Kennedy wrote in his majority opinion, “political speech must prevail against laws that would suppress it, whether by design or inadvertence.” In deciding to protect these rights, the court was not overturning 100 years of precedent (as some have erroneously claimed), but was instead protecting our most cherished American value.
The court echoed the words of the 20th century liberal jurist William Douglas in a case involving the rights of unions to speak about elections: “Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas … But these are not justifications for withholding First Amendment rights….” The court was affirming the First Amendment to the Constitution itself, “Congress shall make no law … abridging the freedom of speech.”
Five years after the Citizens United decision, let us be thankful for the Court’s protection of the First Amendment and let us remember that criticizing those in power is fundamental to our national prosperity.
And let us celebrate our continued freedom of speech.
Scott Blackburn is a Research Fellow at the Center for Competitive Politics. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.
