One law school professor on the law, legal education and everything (with apologies to the late Douglas Adams)
Random header image... Refresh for more!

Understanding Citizens United:Fact v Fiction

Stanley Fish has a great post in the NY Times today on “How the First Amendment Works.” The post elaborated on his earlier discussion of Citizens United called “What is the First Amendment For.” Both columns help explain why Citizens United is such a bad decision (although that was not his purpose). Fish posits two ways of thinking about the first amendment: a consequentialist approach that understands the first amendment in terms of what it seeks to accomplish and a deontological view that understands the first amendment in terms of what it says. Thus, Justice Stevens takes a consequentialist view when he worries about corporate money “corrupting” the political process while Justice Kennedy takes a deontological view with his concern for “chilling” protected speech.

Deontologists eschew balancing in favoring of principles.  Consequentialists will answer first amendment questions by saying “It depends” while deontologists will answer by saying ” It’s what the First Amendment says.”

The deontological view has surface appeal but is ultimately incoherent. It promises to be absolute: “No Law” means no law. But its absolutism falls apart quickly. We ban speech (obscenity); criminalize speech (bribery); punish speech (libel). We limit what people can say on the job (government employees); in schools (high school students); and on TV (FCC indecency rules). All of these distinctions depend on assumptions about the purpose of the first amendment and then balancing the value of the speech against society’s needs. As Fish notes:

The answer is that in each of these cases the speech involved has been redefined as action or said to be so “brigaded” with action that it loses the status of “mere” speech and can therefore be regulated without     violating any First Amendment principle. (What a move!) Because the speech/action distinction is not perspicuous and is, in effect, always being constructed, activities can be moved to either side of the line so long as there is a will and a majority.

And that is precisely what happened in Citizens United.

According to Justice Kennedy, if a corporation spends unlimited money in a political campaign, that is not corruption because the corporation is speaking by spending money. It doesn’t matter that, in fact, politicians will worry about the gobs of corporate money that will flow one way or the other based on the politician’s stand. But if a corporate official went to an elected official and offered money in exchange for a vote, then that is against the law even though it was all done through speech. And why is the first legal and the second not: because it would be bad for democracy if we protected bribery. In the end, then, the First Amendment absolutists resort to balancing interests but disguise it in a principled fog.

Ultimately, the Citizens United court divided along fact v fiction lines: Stevens wanting to take a factual look at what corporate speech does to the democratic process and the majority maintaining the fictions that money is speech and corporations are persons.

There’s a lot more in the Fish posts and I can’t do justice to them. But if you want to understand Citizens United, read Fish first.

Post to Twitter Tweet This Post