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Protecting political speech
By Rinaldo Del Gallo III
Posted: 01/27/2010 06:20:35 AM EST

The 183-page PDF file that constitutes the U.S. Supreme Court case of Citizens United v. Federal Election Commission can be reduced to three words and a simple admonition. The three-words: Money equals speech. The simple admonition: Political speech is political speech, even if it comes from a corporation.

Protecting political speech is at the core of the First Amendment and warrants the utmost protection. So, why should these "rich" corporations be given as much protection to engage in political speech as folks like you and me?

For starters, while we create the legal fiction of an entity known as a "corporation," which is an "it," corporations are made up of real people with real things to say. The dissent -- pretending that we are not trampling on the rights of real individuals by suppressing the rights of corporations or labor unions to engage in political speech -- is too cute of an argument to be taken seriously. A gag over a mouth, even the mouth of a CEO, is still a curtailment of an individual right.

More importantly, the First Amendment is not there just to protect the right of people to express themselves; it is there to protect the marketplace of ideas so we become informed voters. A political advertisement (and certainly a movie that is critical of political candidate) tells that there may be something wrong or right with a candidate that we should know about.

The case centered around a movie, "Hillary: The Movie," and advertisements to promote the video-on-demand opportunities to see the movie for a fee. We are free to accept or reject viewpoints expressed in advertisements, but it starts the conversation. As the majority put it, "Political speech is indispensable to decision-making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual." ... "When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought."

The majority, the conservatives of the court, did grossly understate the very real dangers of the ability of corporations to spend any amount of money it wants on electioneering communication. The majority argued "that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate."

Nothing could be further from the truth. Not only does it simply appear that extravagant "independent expenditures" would possibly ingratiate, the result is ineluctable. Politicians dance with those that brought them to the ball.

The corrupting influence of money is not limited, as the majority would seem to argue, to a "quid quo pro" exchange arranged under a bridge with men donning sunglasses and black fedoras. Not only would politicians fight harder for positions they already believe in when money enters the picture, they would be far less likely to compromise. It is not beyond possibility that money would even change a mind or two.

But under the law in question, the majority noted that all the following would be felonies:

"The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a presidential candidate in light of that candidate's defense of free speech."

The dissent, unpersuasively, argued that speech was not really being banned because there was still the opportunity to fund speech through PACs (political action committees). But the PACs imposed enormous burdens on speech fraught with red tape. Few corporations have gone that route. The regulation was so monstrous, according to the majority, that "fewer than 2,000 of the millions of corporations in this country have PACs."

My law school professor, the liberal Jonathan Turley of George Washington University Law School, called this one of the most difficult cases he has seen in his academic career with the competing interest of good government and free speech -- but he sided with the conservative majority.

Ultimately, the First Amendment reads, "Congress shall make no law ... abridging the freedom of speech" not, "Congress shall make no law ... abridging the freedom of speech, unless it sounds like a really good idea."

Rinaldo Del Gallo III is a Pittsfield attorney and columnist.