Free Speech by 5-4

The reasoning of the majority opinion in Citizens United v. Federal Election Committee seems unassailable: if corporations that own media outlets can express their views freely before an election, shouldn’t all others have the same right? But in today’s legal climate, that opinion could only garner five votes on the Supreme Court.

The dissent by Justice Stevens, joined by Justices Ginsburg, Breyer and Sotomayor, is telling in several ways. It’s almost twice as long as the majority opinion and filled with passionate argument. For the liberals, this wasn’t even a close case but a "profoundly misguided" venture in judicial activism. It’s always amusing to see liberal justices complaining about judicial activism — as if they were protecting their own trade mark from competition.

The dissent is also interesting for its effort to rebut the majority’s view of the with new arguments about the intentions of the Framers. According to the dissenters, the Framers were suspicious of corporations so they wouldn’t have wanted them to have free speech. It’s not, in fact, a very compelling argument, as Justice Scalia demonstrates in a sharp concurring opinion on this subject.

Still, it’s a good sign when even the Court’s liberal wing acknowledges that constitutional interpretation should take account of how the Constitution was originally understood. It’s a ground on which progressives will find more trouble competing than with claims based on the "living Constitution" and what it will come to mean when "evolving standards" have developed a bit more. It’s much easier to refute fanciful claims about the late 18th Century than about imagined trends in the mid-21st Century.

Most telling and most important, however, is the argument which the dissenters advance on the merits. Previous cases had harped on the threat of corruption or of public distrust of elections, if corporations were seen to play too prominent a role in campaigns. Justice Stevens shifts his emphasis to decrying the threat to free speech, itself, if there is too much speech.

So the dissent mocks the saying of Justice Scalia, that there is "no such thing as too much speech." That would be true, says Stevens, "if broadcast advertisements had no special ability to influence elections apart from their the merits of their arguments." But in "the real world, … corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints …."

As the Court’s liberals see it, the government needs to regulate speech "to facilitate First Amendment values by preserving some breathing room around the electoral ‘marketplace’ of ideas" …." The issue is not just weighing "the anticorruption interest against the First Amendment but … competing First Amendment values against each other," requiring courts to "balance the First Amendment rights of speakers against the …rights of listeners."

In short, the government must regulate speech during campaigns to ensure a level playing field for diverse points of view. Or to put it more starkly, equality of access should trump freedom of speech. It’s almost a definition of what sets contemporary liberalism at odds with the classical liberalism of the American Founders.

And it is, on the face of it, very implausible. If an excess of "speech" makes it so hard for people to "listen," how is it that issue blogs or politically pointed Internet videos — of which there are now such enormous numbers — manage to have any influence? How does Matt Drudge or HUMAN EVENTS or Huffington Post manage to rise about the din? If excess of speech is such a problem, why don’t we see commercial services offering to sell books online from a select list which would be so much less confusing than the vast inventory offered by Amazon or Barnes and Noble? Why do cable television companies offer hundreds of channels, if consumers find diverse offerings so distracting and overwhelming?

But look at it from the side of corporations. If they have such enormous political clout, as Justice Scalia asked in an earlier case, how did Congress have the political capacity to enact restrictions on corporate speech in the first place? If it is so easy to dominate public opinion with corporate advertising, why haven’t we seen more such ads trying to influence public opinion on controversial Obama policies? (The spending restrictions in federal law only applied to the weeks before an election.)

If, on the other hand, the argument advanced by the Court’s liberals is a sound argument, it’s hard to see why it should be restricted to corporations. Talk radio seems to be dominated by conservatives. Why not federal regulation to ensure listeners get more balance? What made the current version of talk-radio possible was the repeal, during the 1980s, of Federal Communications Commission regulations requiring a balance of viewpoints (the "fairness doctrine").

Such regulation was endorsed by the Supreme Court in the 1960s on the ground that radio and television (in contrast to print media) could only operate through a limited number of broadcast stations in any one city, so the government had special need to regulate against viewpoint domination in broadcast media. What the Court’s liberals are now arguing is that, in an era when satellite radio, cable tv, the Internet, have eliminated such concerns, government still needs to regulate in order to protect viewers or listeners from a disorienting excess of information.

President Obama greeted the decision in Citizens United by promising to seek new legislation to "respond" to its threat of unleashing a "stampede of special interest money in politics." In the short run, the five justices in the majority seem committed to the notion that government regulators shouldn’t be deciding how much information is too much, even during campaigns.

But that welcome new endorsement of free speech hangs by one vote. And President Obama’s most obvious recourse to protect American voters from too much information will be to appoint more new justices like Sonia Sotomayor.