First Amendment: Speech Case Comment 124 Harv. L. Rev. 143

Two Concepts of Freedom of Speech


By holding that corporations may make independent expenditures from their general treasuries advocating the election or defeat of political candidates, Citizens United v. FEC unleashed a torrent of popular criticism, a pointed attack by the President in the State of the Union address, a flurry of proposed corrective legislation in Congress, and various calls to overturn the decision by constitutional amendment. Political uproar over a 5—4 Supreme Court decision upholding a controversial free speech right is not new; the Court’s two 5—4 decisions upholding a right to engage in symbolic flag burning, for example, elicited widespread public condemnation and efforts in Congress to overturn the Court by statute and by constitutional amendment. But Citizens United surely marks the first time a controversial victory for free speech rights emanated from a majority of Justices conventionally viewed as conservative, over the dissent of four Justices conventionally viewed as liberal, with virtually all political criticism arising from the political left.

Does Citizens United mark a reversal in the political valence of free speech? Have liberals grown weary of First Amendment values they once celebrated? Have conservatives flip-flopped and now become free speech devotees? This Comment argues that support for First Amendment values in fact cuts across conventional political allegiances, and that both sides in Citizens United are committed to free speech, but to two very different visions of free speech. Where the two visions align, lopsided victories for free speech claims are still possible. For example, last Term in United States v. Stevens, the Court voted 8—1 to invalidate the criminal conviction of a purveyor of dogfight videos, reasoning that a federal criminal ban on depictions of animal cruelty was overbroad. But where the two visions diverge, divisions like that in Citizens United become sharp.

In the first vision, discussed in Part I, free speech rights serve an overarching interest in political equality. Free speech as equality embraces first an antidiscrimination principle: in upholding the speech rights of anarchists, syndicalists, communists, civil rights marchers, Maoist flag burners, and other marginal, dissident, or unorthodox speakers, the Court protects members of ideological minorities who are likely to be the target of the majority’s animus or selective indifference. A vision of free speech as serving an interest in political equality also endorses a kind of affirmative action for marginal speech in the form of access to government subsidies without speech-restrictive strings attached. By invalidating conditions on speakers’ use of public land, facilities, and funds, a long line of speech cases in the free-speech-as-equality tradition ensures public subvention of speech expressing “the poorly financed causes of little people.” On the equality-based view of free speech, it follows that the well-financed causes of big people (or big corporations) do not merit special judicial protection from political regulation. And because, in this view, the value of equality is prior to the value of speech, politically disadvantaged speech prevails over regulation but regulation promoting political equality prevails over speech.

The second vision of free speech, by contrast, sees free speech as serving the interest of political liberty. On this view, discussed in Part II, the First Amendment is a negative check on government tyranny, and treats with skepticism all government efforts at speech suppression that might skew the private ordering of ideas. And on this view, members of the public are trusted to make their own individual evaluations of speech, and government is forbidden to intervene for paternalistic or redistributive reasons. Government intervention might be warranted to correct certain allocative inefficiencies in the way that speech transactions take place, but otherwise, ideas are best left to a freely competitive ideological market.

The outcome of Citizens United is best explained as representing a triumph of the libertarian over the egalitarian vision of free speech. Justice Kennedy’s opinion for the Court, joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, articulates a robust vision of free speech as serving political liberty; the dissenting opinion by Justice Stevens, joined by Justices Ginsburg, Breyer, and Sotomayor, sets forth in depth the countervailing egalitarian view. Neither vision, however, entirely eclipses the other in Citizens United; each of the principal opinions pays lip service to the other by invoking the other’s theory in its own cause. And, as Part III illustrates, neither side appears to have fully thought through how its position in Citizens United fits with the broader views its members have expressed about First Amendment rights in other contexts, causing seeming inconsistencies with positions taken in other First Amendment cases last Term. The upshot is that each vision retains vitality for use in other First Amendment contexts.

The tension between these two competing visions – of free speech as serving equality and of free speech as serving liberty – is illuminated by analysis of four possible political reforms that might be considered in the aftermath of the Citizens United decision: first, invalidating limits on political contributions directly to candidates; second, allowing independent electoral expenditures by nonprofit but not for-profit corporations; third, increasing disclosure and disclaimer requirements for corporations making expenditures in connection with political campaigns; and fourth, conditioning receipt of various government benefits to corporations on their limiting political campaign expenditures. The first seems initially attractive to libertarians but not egalitarians; the second to egalitarians but not libertarians; the third to both libertarians and egalitarians; and the fourth to libertarians but not egalitarians. As addressed in Part IV, however, a closer look at each alternative reveals significant complexities.

The best view of freedom of speech would combine the free-speech-as-liberty perspective with the egalitarian view’s skepticism toward speech-restrictive conditions on government benefits. Under such a capacious approach, the first and third reforms are preferable to the second and fourth, and any new regulation of political money in the wake of Citizens United should abandon source and amount limits or increase disclosure requirements, not distinguish among political speakers or make speech restrictions a price of government largesse.