More on Citizens United and Corporate Speech

Lawrence Lessig has an interesting piece up at the Huffington Post in which he disagree with the minority view among progressives that free speech may not be regulated in any way, and that the Citizens United case was, in fact, properly decided:

...In an opinion by Chief Justice Robert's former boss, Chief Justice Rehnquist, in the case of Rust v. Sullivan, the Court found no First Amendment problem at all with the government's restriction on doctors' speech. Indeed, it wasn't even a difficult case according to the Court ("no question but that the statutory prohibition contained in § 1008 is constitutional.")

Why? How? Well the doctors at issue worked in family planning clinics that had received at least some of their funds from the government. And in exchange for that benefit, the government was free to gag the doctors however it wished. The doctors were free of course to work in a family planning clinic not funded at all by the government (for of course, there are plenty of those) (that's a joke). But so long as the doctors take this benefit from the government, they've got to live by the rules of the government, at least so long as those rules serve some legitimate state end.

So how is this case related to Citizens United? For the law wasn't applying exclusively to entities that had received something from the government. It was applying to all corporations.

But of course, corporations do receive a gift from the government. The government limits the legal liability of investors in that corporation in exchange for their risking their capital to spur innovation and growth. That benefit is significant. And the First Amendment question is whether in granting that benefit, the state would be free to limit the political advocacy that corporations engage in.

Lessig is arguing that the Court has held in the past that the government may restrict free speech by entities which it has created or funded. And corporations are definitely state-sponsored entities.

It's an interesting point.

I think that we should begin by recognizing that what the Court has said in the past may have limited relevance; after all, in the Citizens United case, the Court overturned a century's worth of settled Constitutional law.

But let's assume that Supreme Court precedent allows currently Congress to restrict the speech of corporations, because they are in fact creatures of the state, as Lessig points out. Is this a good thing?

Consider that it is not only corporations that receive government benefits. All employees of the government do (including Congress), as does anyone who benefits from the existence of the US military (a court could easily hold that that includes all US citizens). So really, this potentially opens the door to government restriction of all speech, and that is decidedly not a good thing.

Now you can argue that the government would never claim this power, and would limit itself to corporate speech. But you could have argued ten years ago that our government would never claim the power to torture, to lock innocent people in cages for the rest of their lives without a trial, to commit war crimes, or to illegally spy on it's own citizens, to name a few things.

Constitutionally, this seems to be a sort of grey area. Currently, we would be relying on Supreme Court precedent that is predicated on what I consider faulty logic-that the government may restrict the political speech of individuals who receive some benefit from the government, whether it's funding or limited liability or (in the case of many corporations), both. And relying on this bad precedent will serve the purpose of further legitimizing a bad decision, and one which could be used to perpetrate all sorts of mischief further down the road.

So I think that if we are willing to give government the power to restrict corporate political speech, we need to do it as narrowly and specifically as possible. This means we need to do it with a constitutional amendment.

This does not mean that I'm sold on the idea. All sorts of problems arise when you start to limit speech. But it may be that it is necessary And if it is, we should not try to take the easy route, and rationalize an unconstitutional law by pointing to other unconstitutional laws which were upheld by faulty Supreme Court logic. We should address the issue head on by changing the Constitution.