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Thursday, January 28, 2010

Standard Talking Points Against Citizens United Are Legally Lightweight

The two standard talking points against the Supreme Court's decision in Citizens United—(1) Money isn't Speech! (2) Corporations Have No Rights!—are so easily refuted at even the most rudimentary level of legal analysis that their frequent, thoughtless repetition is little more than an indication that the speaker has been living in an echo chamber unexposed to any critical thought.

  1. Money isn't speech? Indeed it isn't. Yet, regulation of money can restrict or even strangle the exercise of constitutional rights and thereby violate the Constitution, as it was found to do in Citizens United.

    If you find this difficult to understand, look at constitutional rights against which you are not currently at war, such as the right to counsel or the right to abortion. Laws which banned criminal defendants from paying lawyers or pregnant women seeking abortions from paying abortionists would undoubtedly be found unconstitutional. I shudder to think that any law school graduate would consider “Money isn't Counsel!” (or “Money isn't Abortion!”) to be killer arguments to the contrary.

  2. Corporations Have No Rights? Really? Anybody outraged at the thought that corporations can bring claims under the First Amendment must have been boiling over for quite some time.

    One notorious corporation controlled by a secretive ultra-wealthy family with a ideological agenda to change this country has been hiding its machinations behind the First Amendment for decades! What's worse, this powerful ideology-driven corporation has been bamboozling the Supreme Court to grant its schemes constitutional protection again and again.

    I am referring of course to the New York Times Corporation. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court granted this corporation (and others like it) a privilege to violate long-standing and democratically enacted libel laws based on its alleged “First Amendment” rights. In New York Times Co. v. United States, 403 U.S. 713 (1971) , the Supreme Court again invoking these imaginary “Corporate First Amendment Rights” held that the corporation could freely violate the democratically enacted Espionage Act of 1917 to publish the classified so-called “Pentagon Papers.”

    I'm sure you are as outraged about these judicial usurpations on behalf of corporations as you are about Citizens United (though strangely most of you have managed to contain their outrage for the last forty, fifty years or so). Or perhaps not.

    Seriously, if you believe that there would have been a First Amendment issue if the Republican Congress had passed a law requiring all New York Times editorials to be pre-approved by Dick Cheney, you believe that corporations can bring valid First Amendment claims. Don't embarrass yourself by embracing the silly talking point to the contrary.