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University of Wisconsin–Madison

The Limits of Libertarianism

Media law expert Robert Drechsel reviews the controversial decision by the U.S. Supreme Court to strike down a federal law that prohibited corporations from spending general treasury funds to advocate the election or defeat of political candidates. His own “rather strong libertarian tendencies notwithstanding,” Drechsel sides with dissenting members of the Supreme Court. He argues that the ruling reveals the limits of libertarianism on political speech issues.

When the U.S. Supreme Court uses the power of judicial review to strike down a major federal statute and in the process overrules two of its own recent precedents, it’s significant news.

When every justice who votes to do so was appointed by Republican presidents critical of judicial activism and advocating a limited role for the judiciary, it’s bigger news.

When the decision gives major First Amendment rights to business corporations — themselves entities created by government — it’s even bigger news.

And when the decision explicitly grants those corporations the right to spend as much corporate money as they please on communication designed to get certain candidates elected or defeated, it’s a blockbuster.

This, of course, is precisely what happened on Jan. 21 in Citizens United v. Federal Election Commission when the Court by a 5-4 margin struck down a federal law (and by logical extension any similar state laws) that prohibited corporations from spending general treasury funds to advocate the election or defeat of political candidates. In doing so, the Court overruled a 20-year-old precedent to the contrary and a seven-year-old precedent that had explicitly upheld the constitutionality of the very law now being struck down.

Eight justices, however, upheld a separate provision requiring those same corporations to disclose the sources of the funds they use to pay for their advocacy communication, and to identify themselves in any such communication.

Citizens United, an ideological advocacy group, produced an attack documentary movie designed to help defeat Hillary Clinton in primary elections for the Democratic presidential nomination on 2008. Citizens United is a nonprofit corporation. Therefore, spending corporate money to buy broadcast and cable advertising for the movie trailer might have run afoul the campaign finance law’s prohibition on using corporate treasury funds for “electioneering communication” before a primary election, or at least required Citizens United to disclose the sources of its funding.

Fearing possible legal action by the Federal Election Commission, Citizens United sued to prevent any FEC action on grounds that the law would be unconstitutional as applied if used against the group. Citizens United lost, but appealed to the Supreme Court.

Five opinions

The Supreme Court decision is composed of five separate opinions — the majority opinion written by Justice Kennedy (joined in its entirety by Justices Roberts, Scalia and Alito and in all but one respect by Justice Thomas); concurring opinions written by Roberts and Scalia; an opinion by Thomas which would have gone farther than the majority opinion by also striking down the disclosure requirements; and an opinion by Justice Stevens (joined by Justices Breyer, Sotomayor and Ginsburg) agreeing with the disclosure holding but vehemently dissenting from all other aspects of the majority decision.

The five opinions lay bare some of the most fundamental issues surrounding freedom of expression.  Among them:

•   should we be primarily concerned about protecting speech itself regardless of who is speaking?

•   or should we take into account who is speaking? More specifically, should it matter whether the speaker is a human being or a corporation?

•   or should we focus primarily on the needs and protection of the audience, and not hesitate to adopt restrictions and regulations that maximize what are perceived to be the best interests of an informed citizenry?

•   should we embrace libertarianism and be guided first and foremost by the principle that speakers must be protected from government because that is the best way to guarantee a robust marketplace of ideas and avoid paternalistic treatment of the audience?

•   or, if we decide to act in the audience’s best interest, who should we trust to decide what that interest is, what action is needed, and what expectations of social responsibility should be placed on communicators?

Protect speech — from any source The majority built its argument largely around the idea that it is most important to protect speech, regardless of its source. It was thus a short step to concluding that Congress could not single out speakers for special regulation simply because they were corporate or because of fears that audience members and society at large would be ill served by the substance and dominance of the views showered on them by corporate speakers pursuing corporate agendas.

Thus the majority combined its solicitude for speech per se with its rejection of speaker-based rationales for regulation, and assumed that viewers and readers have the intelligence and rationality to make sound decisions in their own best interests regardless of what corporate speakers might want to manipulate them into doing or believing.

In other words, the majority took a libertarian position, blind to the enormous advantage in resources many corporate speakers enjoy, unpersuaded by the obvious fact that corporations are not human beings, and unwilling even to differentiate between purely business corporations and corporations formed either to pursue specific ideological goals or function as “press.”

And the majority was willing to equate spending money with speech. (The law in question, it should be noted, did not regulate either speech or any media directly; it regulated corporations’ freedom to buy public access for their speech regarding candidates for public office.  But to the Court, this was of no importance.)

The dissenting justices saw things dramatically differently both in factual and theoretical terms. They correctly noted, for example, that the law did not flatly prohibit all corporate speech related to elections, but left corporations free to form separately-funded political action committees (PACs), which were then free to spend money on precisely the kind of “electioneering communication” that could not be funded with general corporate resources.

They bludgeoned the majority for its all-or-nothing approach to the campaign finance law and its failure to distinguish among types of corporations.

Corruption concerns legitimate

Above all, the dissenters accepted the argument that regulation of corporate political spending was justified by concerns over corruption or the appearance of corruption that corporate spending for or against candidates could create, the potential distortion of political debate resulting from many corporations’ superior resources, and the diminution of the role of citizens and even political parties and candidates themselves in the electoral process that could result from free corporate spending.

In other words, important First Amendment interests for citizens and society could legitimately trump any supposed First Amendment rights enjoyed by corporations.

Yet eight justices agreed that the government can impose disclosure requirements on corporate speakers in the interest of helping citizens assess the validity of and possible bias in information flowing to them. Such a position nicely accorded with the dissenters’ audience- and society-based concerns.

But four of the justices in the majority relaxed their libertarian stance when it came to disclosure, which they upheld partially by acknowledging disclosure’s helpfulness to listeners and viewers, partially by seeing disclosure as less speech-restrictive than the spending restrictions (even though the law specifically compelled speech), and partially by noting that even disclosure requirements could be unconstitutional when applied in some circumstances but not to Citizens United.

Only Justice Thomas stood on his libertarian principles and objected to the disclosure requirements.

Limits of Libertarianism Who is correct in this monumental struggle? My own rather strong libertarian tendencies notwithstanding, I side with the dissent from both legal and ethical standpoints.

Setting aside the question of whether spending money and speaking should be equated, we are talking here about corporate speech by ALL corporations, even those whose general purpose is purely commercial and non-ideological, and whose only plausible reason for supporting or opposing specific candidates has to do with pursuing the very business and commercial interests they were created to pursue.

Here in particular, simple libertarianism fails us with its blindness to the resource advantage such corporations have as they enter electoral politics, and the inherently selfish (I don’t necessarily mean this in a negative sense) interests they pursue — resources amassed thanks in part to advantages of the corporate form granted them by the state.

The Court has now in effect elevated the rights of corporations over those of individuals.  The majority, for example, dismissed the argument that letting corporations spend general treasury money on electioneering speech would harm shareholders who object.

The result is that the corporation itself enjoys First Amendment protection for its campaign communication spending, but if shareholders objected on ideological grounds, courts would likely see no First Amendment issue precisely because the corporation is a private entity.  Only government is limited by the First Amendment.

Many corporations — Citizens United among them — have been formed specifically to pursue ideological missions. Further, the press itself generally takes corporate form, and, in today’s media world the “press” may be increasingly difficult to define as a discrete corporate entity.

This point was not lost on the Court’s majority. Indeed, the majority strenuously asserted that were it to uphold the law, the press itself would be vulnerable to restriction of its political speech. This is not necessarily an idle concern. It is reflected in an amicus brief filed by the Reporters Committee for Freedom of the Press in support of Citizens United.

But the Reporters Committee urged the Court to distinguish among types of corporate speakers, not to dismantle the campaign finance law. That argument was to no avail.  The majority insisted it must be an all or nothing proposition — either ALL corporations get protection, or none.

Ludicrous implication

Such a conclusion is neither logically, legally (as the dissenters demonstrate) nor ethically compelled.  Indeed, one of the case’s ironies is that at the very moment the activist majority overturned major precedent in the name of the First Amendment, it seemed to imply that any other decision would leave it helpless to respond if Congress decided to expand the campaign finance law to cover the news media themselves. Surely that is ludicrous.  Nor were most of the justices in the majority concerned that leaving the disclosure requirements in place could harm the press.

There are, of course, positives. One might hope that the decision will mean the end of patently phony issue advertisements used by corporate entities to circumvent the now defunct law. Perhaps the decision will lead corporations to be more honest and candid in their campaign communication. In this sense, the decision may place greater pressure on corporations to behave ethically since they no longer need fear punishment.

I, for one, remain skeptical.

Likewise, we can expect more legal struggle over precisely how much disclosure can be constitutionally required of corporations. The Citizens United court, however, was truly united in its support for disclosure. So plausible challenges to disclosure of donors should arise only where there is clear evidence that donors will be subject to serious harassment and danger if their identities are disclosed, which would be a legitimate concern.

Ironically, only a week before it handed down Citizens United, the Court barred televising — even from one courtroom to another — of the Proposition 8 trial held before a federal judge in San Francisco.

The 5-4 vote to do so followed precisely the same split among justices as Citizens United. The majority accepted the argument that failure to prevent televising the trial would cause witnesses irreparable harm; the dissenters persuasively objected that the majority had no basis for such a conclusion and noted that no witness had even objected to the courtroom-to-courtroom television.

Would it be overly cynical to suggest that what’s good for the goose should be good for the gander?

Or is the libertarian majority happy to trust the audience to behave rationally when hearing corporate electioneering, but not when even a handful of individuals might actually be able to watch a civil trial regarding an extraordinarily important public issue?

ROBERT E. DRECHSEL is professor of mass communication law in the School of Journalism and Mass Communication at the University of Wisconsin-Madison. He joined the faculty as an assistant professor in 1983. He holds a B.A. in journalism and an M.A. and Ph.D. in mass communication from the University of Minnesota. He served as director of the School from 1991 to 1998. In 1999-2000, he was director of the behavioral science and law major on campus, and director of the criminal justice certificate program. Drechsel has been an affiliated professor of law since 2000. His research has focused on tort law and constitutional law affecting mass communication, and on reporter-source interaction in state trial courts.

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