No Middle Ground? Reflections on the Citizens United Decision

• Author: Randall P. Bezanson
• Position: David H. Vernon Professor of Law, The University of Iowa College of Law
• Pages: 649-667

649

No Middle Ground? Reflections on the

Citizens United Decision

Randall P. Bezanson

I. THE KENNEDY OPINION ......................................................................... 652

II. IMPLICATIONS ........................................................................................ 658

III. THE SCALIA OPINION ............................................................................. 662

IV. MIDDLE GROUND? ................................................................................. 665

The opinion for the Court in Citizens United v. FEC was a “take no

prisoners” opinion. Its author, Justice Kennedy, came right to the point.

“[T]he Government cannot restrict political speech based on the speaker’s

corporate identity,”1 he boldly announced. “The First Amendment protects

the resulting speech, even if it was enabled by economic transactions with

persons or entities who disagree with the speaker’s ideas.”2 “No sufficient

governmental interest justifies limits on the political speech of nonprofit or

for-profit corporations.”3 The reason for these sweeping statements is that

“[w]hen Government . . . command[s] where a person may get his or her

information or what distrusted source he or she may not hear, it uses

censorship to control thought. This is unlawful. The First Amendment

confirms the freedom to think for ourselves.”4 In restricting corporate

speech, the “Government has ‘muffle[d] the voices that best represent the

most significant segments of the economy.’”5

 David H. Vernon Professor of Law, The University of Iowa College of Law.

1. Citizens United v. FEC, 130 S. Ct. 876, 902 (2010) (“reaffirm[ing] the First

Amendment principle” stated in First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)).

2. Id. at 905 (citing Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 707

(1990) (Kennedy, J., dissenting), overruled by Citizens United, 130 S. Ct. 876).

3. Id. at 913.

4. Id. at 908.

5. Id. at 907 (alteration in original) (quoting McConnell v. FEC, 540 U.S. 93, 257–58

(2003) (Scalia, J., concurring in part, concurring in the judgment in part, and dissenting in

part), overruled by Citizens United, 130 S. Ct. 876).

650 IOWA LAW REVIEW [Vol. 96:649

Along the way, Justice Kennedy clarified some other questions. “[W]e

now conclude,” he declared, “that independent expenditures, including

those made by corporations, do not give rise to corruption or the

appearance of corruption.”6 That settles that. Furthermore, “[t]here is no

precedent supporting laws that attempt to distinguish between corporations

which are deemed to be exempt as media corporations and those which are

not. ‘We have consistently rejected the proposition that the institutional

press has any constitutional privilege beyond that of other speakers.’”7 So

much for freedom of the press; it’s now all speech. And finally, “The First

Amendment protects the resulting speech,” not just, or even primarily, the

speaker.8

This is bold—some would say reckless—stuff. These statements, even

these holdings, it appears, are clearly more than was necessary to decide the

case. The statute was grossly overbroad, unless one takes the position that no

speech by incorporated groups or businesses is protected by the First

Amendment9—a position, by the way, that no Justice adopted. In short, the

Court could have judged the law unconstitutional on that more limited

ground. It was unnecessary, too, for the Court to decide as a matter of law

that the essentially factual and evidentiary question of corruption or its

appearance can never occur with independent expenditures. It was also

unnecessary for the Court to declare that freedom of the press consists of

nothing more nor less than freedom of speech, especially in the face of cases

to the contrary.10 And it was deeply troublesome at the level of theory for

the Court to announce that First Amendment protection for speech, itself, is

protected equally with, or perhaps even instead of, protection of the

individual’s liberty to speak. The status of the author of speech was wiped

clean from free-speech jurisprudence.11

Why, then, did Justice Kennedy write such an opinion? It seems likely

that the decisive reason was to make clear in no uncertain terms that

corporations and other forms of organizations are as fully protected by the

First Amendment as are individuals. The Court’s opinion allows no

6. Id. at 909.

7. Id. at 905 (quoting Austin, 494 U.S. at 691 (Scalia, J., dissenting)).

8. Id. (citing Austin, 494 U.S. at 707 (Kennedy, J., dissenting)).

9. For a full discussion of this view, and of Justice Scalia’s Austin opinion that hints at it,

see generally Randall P. Bezanson, Institutional Speech, 80 IOWA L. REV. 735 (1995). See also infra

Parts III, IV (discussing Justice Scalia’s corporate-speech position and Citizens United’s effect on

Austin).

10. E.g., Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 585

n.7 (1983) (taxes “singling out the press”); Gertz v. Robert Welch, Inc., 418 U.S. 323, 337–38

(1974) (privilege for media libels).

11. This is not nec essarily a new phenomenon in the Court’s decisions. See, e.g., Boy Scouts

of Am. v. Dale, 530 U.S. 640, 654 (2000) (unintended speech); Hurley v. Irish-Am. Gay,

Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 570 (1995) (audience construction of

speech); RANDALL P. BEZANSON, ART AND FREEDOM OF SPEECH 83–152 (2009).