Note: This item was first published on Nov. 14, 2015 on an earlier version of my blog.
I’ve been somewhat amazed at the hysteria over the Supreme Court’s decision in the Citizens United case, decided in January 2010. Perhaps it became such a contretemps because it involved a conservative group that wanted to air a film critical of Hillary Clinton. But it doesn’t take much to stir completely irrational passions on the left or right these days. The case seems a rather straightforward decision affirming the right to promote whatever political viewpoint you choose, whether you are the sole proprietor of a company, a business of 250 employees or a multinational corporation. The key question is whether government can restrict corporations or unions from “electioneering communication” or communication that expressly encourages specific political conduct or the election of a particular candidate. There is much discussion in the decision as well as earlier in the oral arguments as to any distinction in the First Amendment between individuals or corporations. I’m curious as to why Democrats complain because they seem to be raising more money for political candidates than Republicans these days in just about all races. A story in today’s New York Times reports on a new book by retired Supreme Court Justice John Paul Stevens in which he criticizes the decision. The story details the fact that the case was argued twice, and Stevens’ claim that the majority basically designed a new case beyond the facts in order to overturn established law. This was a claim made by President Obama in his State of the Union address in 2010 with the court’s justices seated in front of him. Regardless of one’s politics, the overt and seemingly personal criticism of the Supreme Court justices seemed classless. But the story published in the Times points to some real lunacy that some on the left seem to embrace. It seems that the left has pretty much given up on arguing the law and now seems to be recommending that the Bill of Rights, including the First Amendment, needs to be changed. To wit, Stevens’ solution to the issue is the adoption of new constitutional amendments, one of which is acknowledged to overturn the First Amendment. Now, one of the things that truly bothers me about modern politics is the certitude that those on the left and right seem to hold. Perhaps it’s the teaching of ethics that has given me some fondness for the areas of gray that seem to be vanishing from points of view. To me, those areas of gray lend themselves to real debate in which people of varying political viewpoints can, in good faith and with honest intellectual disagreement, work on compromise. But I will say with certitude that overturning, or even modifying, the First Amendment is about the looniest thing I’ve heard in a while. And the idea of any legislative body being able to limit the publishing of books that encourage certain political conduct, also noted in the Times article as a comment made by a government lawyer during the arguments in the case, strikes me as so totalitarian in nature as to not merit comment, much less consideration. If you read the transcripts of the Supreme Court hearings in the case, the government makes a frightening claim that, yes, under the law, Congress could ban the publication of a book encouraging certain political conduct. The first hearing took place on March 24, 2009. The government’s case was argued by Deputy Solicitor General Malcolm Stewart. The transcript of the hearing can be read on the Supreme Court’s website here. The exchange involving Stewart and several justices, including Chief Justice Roberts and Justice Alito, begins on page 26 of the transcript. It is chilling and even Orwellian to read the argument by a government lawyer that the government has the right to ban publication of a political book. The case was reheard on September 9, 2009. The transcript of that hearing can be read here. Solicitor General Elena Kagan, later to become a Supreme Court justice, argued the case herself. She was asked about the government’s earlier assertion of being able to ban a book. Her reply: “The government’s answer has changed.” The pertinent reading begins on page 25 of the transcript. Even so, Kagan is unable to provide satisfactory answers to what would be the limits of government power to censor political speech. It seems to me that even those who argue that money has corrupted political speech in the United States, and I will acknowledge that it’s an argument with some merit, would have to agree that the government lawyers didn’t present a particularly compelling or even logical case. In 1735, in the trial of John Peter Zenger, we established the right of political speech. Is it easier for those with wealth to communicate political speech? Yes. But censoring political speech in any form, however well intended for the so-called “good” of democracy or anyone’s sense of “fairness,” is the quintessential slippery slope. Political speech in any form cannot be suppressed in a robust democracy. The minute it begins to happen, individual as well as corporate liberty is diminished.