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Stevens: SCOTUS May Limit Citizens United

Retired Supreme Court Justice John Paul Stevens gave a talk recently and suggested that the court may look to limit the ruling in Citizens United in subsequent cases that they will likely adjudicate. MSNBC reports on it.

In remarks prepared for delivery at the University of Arkansas, Stevens predicted that the court will soon be forced to issue rulings that will undermine a key part of the Citizens United ruling — that the First Amendment “prohibits the suppression of political speech based on the speaker’s identity,” including the fact that the speaker is a corporation.

The court’s decision left undecided whether the same free speech right applies to foreign corporations. In due course, Stevens said, the court will be called upon to decide that question, forcing it to craft an exception “that will create a crack in the foundation of the Citizens United majority opinion.”

“The court must then explain its abandonment of, or at least qualify its reliance upon, the proposition that the identity of the speaker is an impermissible basis for regulating campaign speech. It will be necessary to explain why the First Amendment provides greater protection of some non-voters than to that of other non-voters,” he said.

Stevens said a recent Supreme Court action may also undermine Citizens United. In January, the justices upheld a lower court ruling that said two non-citizens could not make political contributions to political candidates. It’s therefore now settled, Stevens said, “that the identity of some speakers may provide a legally acceptable basis for restricting speech” through contributions.

I’m not really buying that. I don’t think the court as currently configured is going to weaken that ruling. Inconsistencies of this type can be dealt with in lots of ways without overturning the decision.

Comments

  1. d cwilson says

    Unless both Scalia and Thomas suffer fatal strokes in the next six months, Citizens United is going to be with us for years to come.

  2. says

    The law distinguishes between speech and campaign contributions. The Citizens United decision doesn’t prevent legal restrictions on campaign contributions. For example, Texas law bans corporations from making campaign contributions. Not a penny.

    There’s an argument that legal distinction doesn’t mean much, given that corporations can turn around and contribute to PACs that publish whatever they want. Or just publish what they want directly. An important issue there is transparency. I hope the court has the sense not to read the 1st amendment as protecting the anonymity of money.

  3. baal says

    Money is a thing not speech. Corporations are legal fictions, not real persons now nor back when the drafters wrote the Constitution (the drafters were all about restricting corps btw). Corporations have people in them (I know, shocking) who get to express their political views. If the individual persons want to support the corps, they can! Adding corp $$ to the process flies in the face of the concept that we are a country of people.

  4. Azkyroth, Former Growing Toaster Oven says

    Not likely. Insofar as such a ruling would help people rather than hurting them, on balance, the four Supreme Court Injustices will fight to the death against it and the fifth will sort of waffle.

  5. Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    @Ed:

    I don’t think the court as currently configured is going to weaken that ruling. Inconsistencies of this type can be dealt with in lots of ways without overturning the decision.

    Sure, if what you mean by “ruling” is the holding. The holding, however, is only one part of the decision. Another part is the precedent.

    If Stevens is correct about the core precedent (identify of the speaker may not be used to limit speaker’s ability to speak politically, and by speak politically since money is speech to engage in certain political fund raising/donating activities)*, then he is also correct that the court must inevitably limit that precedent in important ways.

    If you just want to talk about, “Will awkward questions force SCOTUS to reverse the holding?” you’re completely right. They’ll justify in it any dam way they please.

    *Note that I haven’t studied CU at all, haven’t even read the opinion, so I can’t say whether Stevens is correct here.

  6. says

    baal, even during the founder’s day, “the press” was businesses, not just individuals. Many of the cases that make up core 1st amendment case law have corporations as their parties: newspapers that published classified material, book publishers printing “obscene” works, film studios, etc. Remove 1st amendment press protections entirely for businesses and corporations, and your individual free speech gets pretty limited. How many corporate servers carry the bits in your next post?

  7. says

    Inconsistencies of this type can be dealt with in lots of ways without overturning the decision.

    Preferably by introducing more inconsistencies, it almost seems.

  8. Chris from Europe says

    The ACLU, NAACP etc. are all corporations. You don’t want states to have the power to ban or silence them.

    What’s going on under the Citizen United ruling, is basically open corruption. Politicans are either bought or threatened with money. So there must be better ways to handle this than to effectively say that you lose your rights in the moment you operate in groups.

    And I don’t think it would be that effective to do it this way. These billionaires aren’t corporations, they just use corporations to hide what they are doing. That could have been fixed easily without any ruling or amendment.

    Furthermore, I find Kennedy’s decision that restricts what kind of public financing systems for elections are constitutional worse.

  9. d cwilson says

    The ACLU, NAACP etc. are all corporations. You don’t want states to have the power to ban or silence them.

    And I don’t see anyone calling to ban or silence corporations in genderal. What we need more than anything else is a little sunshine. The Superpacs are basically a license to smear candidates and lie about issues anonymously. If you want to run ads attacking a candidate, then disclose who’s paying the bills. Citizens United has opened the floodgates for individuals and groups to spend unlimited amounts of money with zero accountability.

  10. Chris from Europe says

    And I don’t see anyone calling to ban or silence corporations in genderal.

    The last time we had this issue were there people demanding undoing corporate personhood and there are groups out there that push it. As I stated then, in my view any positive effects are wishful thinking and it’s just a diversion and a poison pill for an amendment.

    I’m convinced that one could do a lot, even under Citizen United. Of course, now it’s all virtually impossible to pass.

  11. d cwilson says

    How is undoing corporate personhood “banning or silencing” them?

    The fact is corporations have more speech rights than individuals post-Citizens United.

  12. jameshanley says

    Chris is right. Anyone who says “corporations aren’t people, so they don’t have First Amendment rights to free speech” is saying, whether they realize it or not, “The NAACP doesn’t have free speech rights.”

    I think Ed is also right. Stevens’ argument is interesting, but based just on what’s quoted here, it sounds like the Court could very easily just use a “American/not American” distinction, rather than recognizing any meaningful crack in the foundation of CU.

  13. gingerbaker says

    “it sounds like the Court could very easily just use a “American/not American” distinction, rather than recognizing any meaningful crack in the foundation of CU.”

    And then the Russian mob and the Colombian drug lords will get Delaware P.O. boxes and finally achieve justice and their long-withheld free speech rights in the U.S. ;D

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