Floyd Abrams Speech on First Amendment Discusses McCutcheon, Citizens United

Via Concurring Opinions:

You may agree or disagree with the positions we took or the clients for whom we took them. But one thing is common to all of the examples I have just cited to you. No one in any of these matters — not any opponent, not any judge, no one — said anything to the effect that since our client was a corporation that it had no First Amendment rights and should not be heard to say that those rights had been violated. I do not exaggerate when I say that if anyone had said that in court, he or she would have been laughed out of it.

Yet much of the debate about the Citizens United case sounds as if it was shocking for the Supreme Court to have held that corporations receive First Amendment protection at all. The opinion for the Court, written by Justice Anthony Kennedy, cited 25 cases, including ones involving for-profit non-media corporations, in which First Amendment protection had been afforded to corporations. Even Justice John Paul Stevens’ dissenting opinion said that “[w]e have long since held that corporations are covered by the First Amendment.” Yet listen to a different part of Justice Stevens’ opinion in which he states that “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires” – as if that wiped out all those First Amendment cases.  Or to Senator Elizabeth Warren, instructing us that “corporations are not people. People have hearts, they have kids, they get jobs, they get sick, they cry, they dance. They live, they love and they die.” All true and yet all unresponsive to why the First Amendment, as it has so often been held to do, should not be held to protect the speech of corporations as well as “real” people. Or of New York University Law Professor Burt Neuborne writing that unlike corporations, human beings “die, do not enjoy economic advantages like limited liability, and, most important, have a conscience that sometimes transcends crude economic self-interest.” These differences, Professor Neuborne argued, “raise a threshold question . . . about whether corporations are even in the First Amendment ballpark.”

It is worth pondering about what a different nation we would live in if the answer to that question were a negative one. All the examples I cited a moment ago would become moot. Gone, then, would have been even the possibility of full free speech protections for the various entities that I mentioned a moment ago – for Barnes & Noble seeking to protect the confidentiality of the purchasers of its books, for the Brooklyn museum which wished to choose its own art regardless of the artistic taste of the Mayor, for the motion picture company not wanting to be charged with a crime for including an essential sexually oriented scene in a movie about the relationship between an older woman and teen aged boy, for colleges and universities seeking to be free to engage in affirmative action, and for corporations that are ordered by the Federal government to include language on their lawfully sold products that is drafted to persuade the public not to purchase them. The same would be true of your university — also a corporation — if it concluded that its First Amendment freedoms were at risk.

So for me, at least that part – that foundational part of the Citizens United case – should have been easy. But it isn’t. Nothing is, in the First Amendment area, these days because differences about what the First Amendment is about have become so vast. Let me offer one example of a post-Citizens United case in which those differences were spelled out with particular brio by members of the Supreme Court. It is the recentMcCutcheon case, which struck down a cap on the total amount of contributions an individual may make to candidates (while leaving in effect the limits Congress had set on a candidate by candidate basis).

 

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