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A Resounding Defense of the First Amendment: 'Congress Shall Make No Law'


Thursday, in his resounding defense of the First Amendment in the Citizens United decision, Justice Anthony Kennedy wrote for the majority:

…[w]hen Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

“Censorship” is a dirty word in America, and that is why the restrictions at issue in our case were cloaked in the guise of “campaign finance reform.” But the fact remains that any restrictions on political speech, especially those that criminalize such speech, send us down a very slippery and very dangerous slope.

Last March, our government argued in court that it has the Constitutional authority to ban books that mention a candidate for federal office. The government later retracted that statement, but is there any doubt that such a statement never would have been made if there had not been 100 years of progressively more intrusive restrictions on political speech preceding it? Had the Court not acted, what was to prevent the government from asserting that authority over the internet, which does not have the benefit of two centuries of tradition and jurisprudence protecting it?


There is also the practical issue of the relatively unremarked and inconvenient fact that 28 states permit corporate political speech during elections. Virginia, which recently held a gubernatorial election, is one such example. If , as many argue, corporate political speech is corrupting by definition, where was the impropriety in that election? In fact, I would challenge opponents of our case to compare the corruption levels in states prohibiting corporate and union expenditures with states that allow it. I think that such a comparison would demonstrate that corporate speech is not inherently corrupting.

Finally, as the Court acknowledged, the position that corporations cannot engage in political speech has a fatal logical flaw. Almost every major media outlet in the country is owned by a corporation and most of them advocate for or against candidates via endorsements, opinion columns, or politically-oriented programming. Why should General Electric, which owns MSNBC, be permitted to use its nearly unlimited resources to influence elections, while I, who made Hillary The Movie using corporate funds for roughly .03% of the budget, could be put in prison for airing the documentary?


This issue has little to do with corporate speech. The real issue is whether or not we are willing to take a giant leap down the slippery slope towards government regulation of the content of books, movies, or even the internet. As Justice Kennedy wrote yesterday, “For me, the choice between putting up with corporate ads or jailing citizens for political speech is a simple one. Thankfully for all Americans, the Supreme Court agrees.

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