Free Speech for Corporations

During the 2008 campaign, a group called Citizens United put together a documentary, “Hillary: The Movie.” Remember seeing it on cable TV? No, you don’t, because the organization decided it couldn’t show the film without the risk of felony prosecution. It had every reason to be afraid.

The problem was that the movie was not only about Clinton but made the case that she should not be president. Worse, it was supposed to be shown during -- get this -- an election campaign. That, under the federal law, made it verboten.

You might think the point of a campaign is to air facts and opinions about the people running, so that voters will have a wealth of information upon which to choose. But in the judgment of Congress, some facts and opinions are not welcome.

Citizens United is a nonprofit corporation set up to engage in conservative advocacy -- an assemblage of individuals working for a political agenda. As individuals, they have the right to spend money to spread their opinions. But when they form a corporation for that purpose, some people think the same activities should be illegal.

That point of view prevailed in the Bipartisan Campaign Reform Act of 2002, which forbade corporations from engaging in “electioneering communication” within 30 days of a primary or 60 days of a general election. But Citizens United claimed the rule violated its free speech rights. And last week, the Supreme Court agreed.

The result was not in much doubt after the justices heard the case. The government lawyer defending the statute was asked: If movies financed by corporations may be banned because they express opinions on candidates, how about books?

“It’s a 500-page book, and at the end it says, ‘So vote for X,’ the government could ban that?” asked Chief Justice John Roberts Jr. Replied the Justice Department attorney, “Well, if it says ‘vote for X,’ it would be express advocacy and it would be covered by the pre-existing Federal Election Campaign Act provision.”

If the corporation wanted to publish such a book, he continued, “we could prohibit the publication of the book using corporate treasury funds.” We could prohibit the publication of the book.