The First Amendment Is Just Fine As Is

Floyd Abrams is a senior partner in the firm of Cahill Gordon & Reindel. He represented Senator Mitch McConnell, Republican of Kentucky, in the Citizens United case. He also has represented The New York Times in the Pentagon Papers case and other prominent cases.

October 24, 2012

I’ve just returned from a few days in Ohio. Yes, that Ohio, the likely election-deciding state. The Citizens United case, so persistently damned by so many, is at work there. Sometimes a viewer will see four ads in a row urging viewers to vote for or, at least as often, against. Sometimes it’s aggravating, sometimes enlightening. But always, it’s a vindication of the First Amendment.

The core principle that underlies the Supreme Court’s Citizens United ruling is the same one that underlies the First Amendment. As Justice Anthony Kennedy put it in his opinion in the case, “political speech must prevail against laws that would suppress it, whether by design or inadvertence.” And, he said, the First Amendment “has its fullest and most urgent applications to speech uttered during a campaign for political office.”

It would be wrong to amend the Constitution for the first time in a way that would limit speech and freedom.

Well-established principles like these are what led the court in Citizens United to strike down legislation that made it a crime for any corporate or union money to be spent within 60 days of an election on material that appears on television, cable or satellite that endorses or denounces a candidate for federal office. It was not new for the court to apply the First Amendment to speech of corporations; Justice Kennedy cited 25 prior cases (including ones involving the corporate owner of The New York Times) involving just such First Amendment protection. The opinion, as well, made clear that Congress was fully empowered to require disclosure of who made what expenditures and in what amount.
In Citizens United itself, the speech at issue was contained in a documentary prepared by a right-wing group that harshly (and in my view terribly unfairly) criticized then-Senator Hillary Clinton when she seemed likely to be nominated by the Democratic Party for president in 2008. But that’s what the First Amendment exists to protect. The same is true of the advertisements that I saw in Ohio.
Some critics of Citizens United have gone so far as to suggest a constitutional amendment that would bar or limit what individuals could spend of their own money to seek to persuade others to support or oppose. As far back as 1976, the Supreme Court correctly concluded that any such efforts violated the First Amendment since it did not limit corruption or even the appearance of it, but did severely limit speech.

That’s the crux of the matter. Critics of Citizens United believe it is undemocratic. What they ignore is that nothing could be more undemocratic than amending the First Amendment for the first time in our history in a way that would lead to less speech and far less freedom.