In its now notorious 5–4 ruling in Citizens United v. Federal Election Commission, which held that corporations cannot be prohibited from using their treasury funds to advocate the election or defeat of candidates for public office, the US Supreme Court relied on the premise that corporations are no different than people; since the First Amendment protects the right of individuals to financially support or oppose political candidates, all corporations are equally protected. “The Court has recognized that First Amendment protection extends to corporations,” Justice Anthony Kennedy wrote in his decision on behalf of the majority, noting that “this protection has been extended by explicit holdings to the context of political speech.” Kennedy emphasized this precedent by citing twenty-three separate rulings, dating back to 1936. But a closer look at the cases in question reveals the flaws in his analysis. Of the twenty-three cases, twenty-two actually stand for an entirely different principle: not that all for-profit corporations enjoy the same First Amendment rights as individuals, but rather that they should extend only to those corporations that are vehicles for producing and distributing products thar independently enjoy the broadest free speech rights, such as books, newspapers, journals, films and other artistic and educational entities. Those entities are referred to as “media corporations.”
Of the numerous cases Kennedy cited, all but one involved media corporations. Eight were newspapers and journals sued for defamation or invasion of privacy; one was a book publisher charged with violating New York’s “Son of Sam” law (which bars criminals from profiting from their crimes); one involved a Florida statute requiring newspapers that oppose or endorse candidates for public office to give them or their opponents space in their pages to reply; four involved TV stations; and four involved film and theatrical companies accused of exhibiting obscene materials. The other four involved a mélange of issues, including the zoning of porn movie houses. The common thread weaving all these cases together is that they all involved corporations that produced material intrinsically protected by the First Amendment.
The distinction between media corporations and non-media corporations when it comes to the First Amendment was expressed by Justice Tom Clark in the Supreme Court’s 1952 decision in Joseph Burstyn, Inc. v. Wilson, which threw out the New York State prohibition against exhibition of the film “The Miracle,” on the grounds that it was sacrilegious. “It is urged that motion pictures do not fall within the First Amendment’s aegis because their production, distribution and exhibition is a large-scale business conducted for private profit,” he wrote. “We cannot agree. That books, newspapers and magazines are sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment.” As for the twenty-third case relied on by Kennedy, First National Bank of Boston v. Bellotti (1978), which struck down a Massachusetts law prohibiting corporations from supporting or opposing referendum proposals, it stands alone as the one and only Court ruling before Citizens United ever to hold that a non-media for-profit corporation has the First Amendment right to use its funds to in support or opposition of an election-related issue. Bellotti was an anachronism in constitutional law.
All Supreme Court nominees affirm their devotion to precedent, but that devotion is often diluted once on the Court. Kennedy’s overwhelming reliance on media corporation cases to decide that the First Amendment protects all corporations is a fundamental distortion of precedent. Kennedy chose to extend the limited meaning of these media cases in order to reach his politically motivated conclusion that all corporations, whether media-related or not, may use their funds to influence the election process. Where Justice Kennedy acknowledged the existence of the concept of “media corporations” in his opinion, he did so only to use it as a red herring. Failure to allow all corporations to use their money in election campaigns, he warned, “would produce the dangerous and unacceptable, consequence that Congress could ban political speech of media corporations”—a statement that relied upon one opinion written by Clarence Thomas, and another by Antonin Scalia, the most reactionary ideologues on the Court. The truth, of course, is that the special protection of media corporations under the First Amendment has been established doctrine for fifty years or more, and no sensible jurist would declare it to be in jeopardy if that protection were not extended to all for-profit non-media corporations. As citizens move to push back against the sweeping implications of Citizens United, it is important to understand that the ruling is based on a combination of distortion and overstatement, used to achieve a clear political objective: opening the floodgates for even more vast sums of corporate cash to be injected into the election process.