When the first Congress passed the Bill of Rights, it left no ambiguity about whether future Congresses could enact laws prohibiting Americans from speaking. "Congress," says the First Amendment, "shall make no law ... abridging the freedom of speech, or of the press."
But the basic meaning of the First Amendment was very much at issue last March, when the Supreme Court initially heard arguments in Citizens United v. Federal Election Commission.
The immediate question in that case was whether the FEC had been correct in preventing Citizens United, a nonprofit corporation, from using cable Video on Demand to distribute a documentary -- "Hillary: The Movie" -- during the 2008 Democratic presidential primary season.
Two problematic provisions of campaign finance law were at issue. One said corporations could not engage in broadcast communications that mentioned a candidate for federal office in the 30 days before a primary election or 60 days before a general. The other, known as 441b, said corporations could not spend money from their general treasuries on any kind of speech at all advocating the election or defeat of a federal candidate.
Under these laws, corporations wanting to publish or broadcast speech about members of Congress needed to create a separate organization -- a political action committee (PAC) -- and raise contributions for that PAC to fund that type of speech. When Deputy Solicitor General Malcolm Stewart presented the administration's oral argument in Citizens United in March 2009, Chief Justice John Roberts asked him if the government believed it could stop publication of a 500-page "discussion of the American political system" that says at the end, "Vote for X."
"Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds," said Stewart.
"And if they didn't, you could ban it?" asked Roberts. "If they didn't, we would prohibit publication of the book using the corporate treasury funds," said Stewart.
In the wake of the administration's remarkable claim that it could constitutionally prohibit publication of a book, the court decided to use the Citizens United case to revisit its precedents on campaign finance law. Had the court given the government too much power to abridge speech?