By David Harsanyi
Tuesday, January 21, 2020
Today is the anniversary of one of the greatest
free-speech decisions in American history. Ten years ago, the Supreme Court
overturned portions of a federal law that empowered government to dictate how
Americans who were not connected to any candidates and political parties could
practice their inherent right of free expression.
The case of Citizens United revolved around state
efforts to ban a conservative non-profit group from showing a documentary it
produced critical of then-presidential candidate Hillary Clinton right before
the 2008 Democratic primary elections. At the time McCain-Feingold made it
illegal for corporations and labor unions to engage in “electioneering
communication” one month before a primary or two months before the general
election.
Or, in other words, the law, written by politicians who
function without restrictions on speech — and applauded by much of a mass media
that functions without any restrictions on speech — prohibited Americans from
pooling their resources and engaging in the most vital form of expression at
the most important time, in the days leading up to an election.
“By taking the right to speak from some and giving it to
others,” Justice Anthony Kennedy would write for the majority, “the Government
deprives the disadvantaged person or class of the right to use speech to strive
to establish worth, standing, and respect for the speaker’s voice.”
Right after the decision, President Barack Obama famously
rebuked the Justices during his State of the Union for upholding the First
Amendment, arguing that the Supreme Court had “reversed a century of law that I
believe will open the floodgates for special interests — including foreign
corporations — to spend without limit in our elections.”
Not a word of what he said was true.
First of all, the court hadn’t overturned a century of
law (though the age of the law bears absolutely no relevance to
constitutionality of it). Citizens United reversed portions of a law,
less than a decade old, that forbad Americans from contributing as much as they
wanted directly to the funding of speech. Corporations would still be
banned from donating directly to candidates, as they had been since 1907.
Moreover, those corporations, typically unwilling to pick
partisan sides for reasons of self-preservation, are still responsible for only
a fraction of all political spending, averaging around one
percent or less since 2010. Top 200 corporations spend almost nothing on
campaigns.
Conversely, since 2010, there’s been an explosion in
grassroots political activism on both right and left. As Bradley A. Smith
points out in the Wall Street Journal today, small-dollar donors are
more in demand than ever. Bernie Sanders lives on them, and Donald Trump raised
more money from donors who gave less than $200 than any candidate in history.
Nothing in Citizens United, of course, made it
legal for foreigners to participate in American elections. It is still illegal
for anyone to solicit, accept, or receive help from foreign nationals.
Obama, like many progressives, would ratchet up the
scaremongering over anonymous political speech. Over the past couple of
decades, our political class has convinced large swaths of the electorate that
private citizens have a civic responsibility to publicly attach their names to
every political donation. They do not. As the often-cited 1995 Supreme Court
ruling in McIntyre v. Ohio Elections Commission says: “Anonymity is a
shield from the tyranny of the majority.”
It is true, though, that since the Citizens United
decision streaming services have been able to produce and play documentaries
about political candidates like President Trump without answering to a
government entity. Publishing companies, especially smaller ones, can now print
books about political figures without being policed by the state. And you can
contribute as much money you want to any independent group that shares your
values. As it should be. The very notion that anyone should be restricted from
airing their views is fundamentally un-American.
Then again, even if the floodgates had opened for
“special interests” — a euphemism for causes that Democrats dislike — and even
if there had been a massive spike in corporate spending on speech, and even if
secretive corporate entities started producing documentaries that disparaged
favored political candidates, and then released them one day before an
election, it still wouldn’t matter. The principle of free expression isn’t
contingent on correct outcomes, it is a free-standing, inherent right protected
by Constitution, not divied out by the state. That principle holds whether
people of free will are too lazy or too gullible to resist alleged
misinformation. The proper way to push back against rhetoric you don’t like is
to rebut it.
Or not. It should be up to you.
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