If taken seriously, our colleagues’ assumption that the identity of a speaker has no relevance to the Government’s ability to regulate political speech would lead to some remarkable conclusions. Such an assumption would have accorded the propaganda broadcasts to our troops by “Tokyo Rose” during World War II the same protection as speech by Allied commanders. More pertinently, it would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans: To do otherwise, after all, could “‘enhance the relative voice’” of some (i.e., humans) over others (i.e., nonhumans). Ante, at 33 (quoting Buckley, 424 U. S., at 49).51 [. . .] In short, the Court dramatically overstates its critique of identity-based distinctions, without ever explaining why corporate identity demands the same treatment as individual identity. Only the most wooden approach to the First Amendment could justify the unprecedented line it seeks to draw.
[FN 51] The Court all but confesses that a categorical approach to speaker identity is untenable when it acknowledges that Congress might be allowed to take measures aimed at “preventing foreign individuals or associations from influencing our Nation’s political process.” Ante, at 46–47. Such measures have been a part of U. S. campaign finance law for many years. The notion that Congress might lack the authority to distinguish foreigners from citizens in the regulation of electioneering would certainly have surprised the Framers, whose “obsession with foreign influence derived from a fear that foreign powers and individuals
had no basic investment in the well-being of the country.” Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 393,
n. 245 (2009) (hereinafter Teachout); see also U. S. Const., Art. I, §9, cl. 8 (“[N]o Person holding any Office of Profit or Trust . . . shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”). Professor Teachout observes that a corporation might be analogized to a foreign power in this respect, “inasmuch as its legal loyalties necessarily exclude patriotism.” Teachout 393, n. 245.
(Emphasis supplied.) Justice Stevens' point, if anything, is understated. Consider the issue of a determining whether a corporation is foreign or domestic. What level of ownership would make a corporation "foreign?" What happens when a corporation either adds or sheds foreign ownership? Do First Amendment rights disappear?
And what of foreign individuals in the United States? We know there are bans on contributions to political campaigns but can there also be restrictions on independent expenditures? If so, why? How do you determine whether an independent expenditure is campaign related or issue related?
Justice Stevens compares the restrictions struck down in Citizens United to the familiar "time, place and manner" restrictions well known in First Amendment jurisprudence. Interestingly enough, such restrictions can apply to anyone, including American citizens.
The majority in Citizens United wrote:
Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. See Buckley, supra, at 14–15 (“In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential”). The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.
(Emphasis supplied.) Of course more important than actually speaking is actually voting. Corporations, as we all know, do not have the right to vote. Indeed, it is not clear that corporations are "citizens" as the word is understood constitutionally. As Justice Stevens noted, to follow the majority's logic, corporations should be afforded the right to vote.
The Citizens United majority postied that:
Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 784 (1978). As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.
Quite apart from the purpose or effect of regulating content moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, 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. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each. [. . .] We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.
The logic described above of course applies not only to domestic corporations but also to foreign corporations and individuals. Indeed, while Citizens United majority notes that corporations have been afforded First Amendment rights, so to have foreign individuals. Yet like foreign individuals, restrictions have been place on these First Amendment rights for a long period of time - and yet the Nation has survived.
Not surprisingly, the Citizens United majority avoided the question of restrictions on foreign individuals and corporations:
We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process. Cf. 2 U. S. C. §441e (contribution and expenditure ban applied to “foreign national[s]”). Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominantly by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process.
This bit of legerdemain ignores the elephant in the room - the difficulty of determining when a corporation is subject to foreign influence, because of ownership, control or even financial considerations. Indeed, it is not clear how the Court could issue such a far-reaching decision and leave unresolved the issue of whether to government can restrict foreign speech and what measures it can take to do so. Surely once the Court decided to reach out and decide issues that were neither before it on the record not necessary to decide to dispose of the case, it may as well have gone the full distance.
Imagine a law enacted by Congress now that reimposed the stricken restrictions upon "corporation that have any foreign ownership." Well, that would capture I imagine just about every public traded corporation. Would such a restriction be constitutional? Under Citizens United, it should not be. But the Citizens United majority ducked the question. After reaching out so brazenly to decide questions not before it.
In the end, Citizens United is not likely to be the last word on this issue - it has created a mess.
Speaking for me only
