Viewpoint

Free speech and Citizens United

May 13, 2014 

Condemning money, especially corporate funds in politics, is again popular, as we saw in William Ostrander’s Viewpoint in The Tribune on April 20.

Mr. Ostrander’s emotional reaction — he “felt viscerally” about the U.S. Supreme Court’s decision in the Citizens United case in 2010 as well as the McCutcheon case at the beginning of April — demonstrates a fundamental and widespread lack of knowledge about the nature of corporations and the basic rights of free speech, freedom of the press and freedom of association guaranteed in the U.S. Constitution.

Critics of Citizens United love to quote from the dissenting opinion of Justice Stevens: “(C)orporations have no consciences, no beliefs, no feelings, no thoughts, no desires. …

(T)hey are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.” This is an obvious truth, but completely off point.

Corporations have always been understood to be artificial constructs established under the law for natural persons to organize their affairs, including the exercise of free speech. For example, The Tribune is published by people organized in a corporation.

The essence of Citizens United is that individuals cannot be deprived of free speech just because they use their freedom of association to form partnerships, corporations, unions, etc. for the purpose of collectively exercising their freedom of speech. Citizens United and McCutcheon also recognize the fact that restricting the ability of people to spend money on free speech is tantamount to depriving them of free speech. What use is free speech if all you can do is set up a soapbox on the street corner and shout your message? Try that on a busy street, and you’re likely to get arrested for disturbing the peace.

Mr. Ostrander recognizes that changing the Citizens United and McCutcheon cases would require an amendment to the U.S. Constitution. One group leading the effort at the national level is “Move to Amend”; Mr. Ostrander was also active for that group locally. Just a quick read of their proposed amendment shows that it would eliminate our most fundamental constitutional rights.

Section 1 of the proposal would permit the federal government as well as state and local governments to restrict the exercise of constitutional rights to “natural persons only.” This language would enable a city council to prohibit people organized in an “artificial entity” from using the entity for free speech. This could result in prohibitions on unions, organizations such as the Sierra Club and the NRA as well as commercial and nonprofit corporations from engaging in free speech. A city council could even prohibit newspapers from being published by more than one person.

Section 2 of the proposal would actually require “Federal, State, and local government (to) regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures (for political purposes).” I spent $1,500 of my own money in the 2012 election as a so-called “independent expenditure” for airtime to broadcast a personal ad supporting a candidate in a county supervisor contest, yet even this individual exercise of free speech could be prohibited under Section 2 of the proposed amendment. The amendment proposed by Move to Amend would even have the absurd effect of allowing the government to shut down Move to Amend.

It is extremely disturbing that fellow Americans suggest such restrictions on free speech and freedom of association. We can only trust that emotionally charged, misguided platitudes about evil corporations and money in politics will not seduce the American people into surrendering their rights of free speech, freedom of the press and freedom of association. This would be the end of individual liberty and open the door to totalitarian government.

Christopher Arend is a member of the Central Committee of the Republican Party of San Luis Obispo and a retired attorney. He studied law in Germany and became a German lawyer (Rechtsanwalt). He practiced international corporate and finance law in Frankfurt am Main, Germany, until returning to his native California at the end of 2004.

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