Part II of "The First Amendment Wars: Calming Down about the Citizens United Decision"
In a thought-provoking analysis of the Supreme Court’s decision in Citizens United v. Federal Election Commission, Professor Stanley Fish suggests that the division on the Court over the constitutionality of the McCain-Feingold restrictions on corporate and union speech (forbidding the expenditure of corporate or union funds to advocate for or against a candidate in a federal election during a certain period before the election) results from two fundamentally different and, in his opinion, irreconcilable views of the purpose of the First Amendment.
Fish argues, on the one hand, that Justice Kennedy and the majority, who found the statutory provision to be unconstitutional, view the First Amendment’s guarantee of freedom of speech as an absolute good in itself. Where such speech may lead, according to Fish, does not concern them. Fish links his characterization of the majority’s thinking to a famous observation by Justice Holmes that if free speech is to have any meaning, it must be that even disastrous ideas “should be given their chance and have their way.” Thankfully, Fish leavens Holmes’s fatalism with the more optimistic view of Justice Brandeis (also, according to Fish, a First Amendment absolutist) that in a completely open marketplace of ideas the better ideas will inevitably triumph. For Brandeis, therefore, absent a true emergency, the remedy for “bad” speech should always be “more speech, not enforced silence.” Somewhat surprisingly perhaps to those who tend to think of Brandeis, at least, as a liberal icon, Fish places the majority justices in Citizens United in the Holmes-Brandeis camp and argues that this leads them to be “wary of chilling any speech even if it harbors a potential for corruption.”
In contrast, Fish thinks the dissenting justices in Citizens United have a different view of the First Amendment. These justices, Fish says, believe the First Amendment is not a self-contained imperative, but actually serves purposes outside of itself (for example, “to provide the materials necessary for informed choice”). As a result, the dissenters are more willing to limit speech in order to assure that the First Amendment’s purpose is served.
In sum, while for Fish the majority’s view is “forget about what speech does or does not do in the world; just take care not to restrict it,” the dissent’s view is, “the only way to preserve free speech is to curtail or restrict some forms of speech, just as you might remove noxious weeds so that your garden can begin to grow again.”
I disagree with Fish that he has defined two mutually exclusive viewpoints. To the contrary, the value of his framework, I believe, is that he has actually defined the range of considerations that both the majority and dissent took into account in reaching opposite results in this case. In other words, I believe that the majority in Citizens United was equally concerned with the instrumental purposes of the First Amendment as was the dissent, and that the dissent was equally wary of the dangers of chilling speech, as was the majority. In my view, all of the justices understand and hold both of Fish’s supposedly irreconcilable views. Where they differed in this case, obviously, is in where to draw the line between these two First Amendment concerns.
To put it another way, I fear that for the sake of his argument Fish has somewhat mischaracterized both the majority and dissenting opinions in Citizens United. Indeed, on a range of issues the justices are closer in their thinking than Fish would have us believe. Thus, both the dissent and majority agree that corporations have rights under the First Amendment; the majority also agrees, pace Professsor Fish, that the First Amendment is not absolute and that free speech can be restricted in those rare circumstances where the need to do so is real and extremely pressing. (Even Justices Brandeis and Holmes agreed with this.) Additionally, with only Justice Thomas disagreeing, both the majority and the dissent agreed in this case that the statute’s disclosure requirements did not violate the First Amendment.
Finally, in my view, the majority and the dissent also agree that the First Amendment serves an important goal in our democracy, namely to insure that we, the people, have access to all the information we need in order to exercise our sovereignty as informed citizens. Their answer to the question whether the limitations on political speech at issue in Citizens United served this goal was what divided the justices. Such a question is always very difficult and calls for the most careful consideration and balancing. For, to use Fish’s expression, who is to say and how is one to know that any particular speech is a “noxious weed” in the garden of public debate? And, on occasion, could not even “bad speech” have the virtue of calling forth counterbalancing and ultimately persuasive “good speech”?
In Citizens United, the dissent clearly believed that the restrictions were justified based on a historical record demonstrating, in their view, the tendency of the corporate form, as such, to corrupt political debate. In contrast, the majority did not see this general tendency as a proven fact and, perhaps, also did not think that even historical instances of corruption warranted a blanket limitation on all corporate speech, which can, in its own right, be informative.
What I believe is important to keep in mind is that neither the majority nor the dissent was completely “off the rails” in reaching the conclusions that they did. One thing seems certain: unfolding events will demonstrate whether the fears of the dissent or the hopes of the majority are justified, and, if the dissent’s dire predictions come to pass, the question at the heart of Citizens United is likely to be before the Court again.