Free Speech Victory in Citizens United

The Supreme Court handed down its decision in Citizens United v. FEC, a case that considered whether the FEC could regulate the publication of a movie critical of Hillary Clinton via a video-on-demand service. My celebratory tweeting attracted skeptical responses from Chris Hayes and Ken Fisher, who see this as an issue of “corporate money in politics.”

Part of my disagreement with these guys is that I’m just a free speech zealot. The First Amendment says “Congress shall make no law…abridging the freedom of speech.” While I wouldn’t say there’s no room for interpretation, I have trouble seeing a plausible reading that allows the FEC to limit the distribution of a documentary criticizing Hillary Clinton. The best you can say, I think, is that limiting corporate influence is a “compelling state interest” sufficient to overcome the First Amendment’s ban on speech abridgment, but that’s just another way of saying that you don’t care about free speech very much.

Second, I think it’s important to remember that “corporations” encompass much more than large, for profit businesses. They also include a wide variety of non-profit and advocacy groups, including groups like the ACLU, the NRA, and NARAL that are, by any reasonable definition, grassroots organizations advocating the views of large numbers of voters. Indeed, as the ACLU pointed out in its amicus brief, the Bipartisan Campaign Reform Act (BCRA) prohibited the ACLU from running ads criticizing members of Congress who voted for the awful FISA Amendments Act of 2008. Even if you think it’s appropriate for Congress to regulate the speech of Exxon-Mobil and Pfizer, I think it’s awfully hard to square the First Amendment with a law that limits the ability of NARAL or the NRA to advocate for its members’ views.

But more fundamentally, I don’t buy the idea that limiting corruption is a state interest sufficiently compelling to overcome the First Amendment interest in free speech. I think supporters of BCRA misunderstand how corporations wield influence and dramatically overestimate the power of television advertisements. It’s true, of course, that a corporation prepared to spend $1 million on ads criticizing a particular legislator will get that legislator’s attention. But there’s nothing unique about this. It can also get his attention by hiring a lobbying firm that employs a former staffer. It can get his attention by arranging $100,000 in bundled contributions from executives, clients, and friends of the company. It can get his attention by creating astroturf organizations. And there are probably lots of other mechanisms I haven’t thought of.

The key difference between independent expenditures and these other mechanisms is that the independent expenditures are the most open and transparent. To run an effective “issue ad,” a corporation has to make an argument that is persuasive voters. I don’t want to sugar coat the situation; sometimes independent expenditures finance ads that are sleazy and misleading. But given a choice between corporations spending their money on ads about how Senator Smith hates America or spending their money on K Street, I’ll take the ads, because at least voters still get the final decision.

Moreover, I think we’re moving toward a world in which traditional high-dollar advertising campaigns will become increasingly ineffective. Chris compares the post-Citizens United world to a debate in which “you get 10 seconds to make your case. I’ll take an hour.” This description of the world had a certain plausibility when most people got their news from newspapers and television—media characterized by severe, technologically-imposed bottlenecks. These bottlenecks meant that those willing to spend more money could get a significantly bigger soapbox.

This is a lot less true online where users have practically unlimited choices. The web is littered with lavishly funded corporate propaganda that gets a fraction of the traffic of Biong Boing. Indeed, money literally cannot buy the kind of large, loyal audience that Cory Doctorow has earned. Buying BlogAds on Boing Boing simply doesn’t compare to being a contributor to Boing Boing itself. And of course Boing Boing’s audience would evaporate if they let a Pfizer lobbyist start posting there.

So I’m not thrilled at the idea of Fortune 500 companies spending more money on bogus “issue ads.” But I think the dangers of such ads are frequently exaggerated. I’m far more worried about preserving the right of organizations like the ACLU to spread their message. And I don’t see any plausible way to stop the former without seriously restricting the latter. So I’m glad to see the Supreme Court take the words of the First Amendment—”Congress shall make no law”—literally.