FAN 51.2 (First Amendment News) Larry Tribe unto the Breach — “I believe Citizens United was rightly decided” (But hold on, there is more . . . )

[J]ust as these issues cannot be intelligently settled by slogans like “money isn’t speech” and “corporations aren’t people,” so too they cannot be satisfactorily settled by proclamations that independent expenditures don’t corrupt or by sweeping assumptions that government regulation of spending on political speech always equals censorship.” — Laurence Tribe (March 9, 2015)

Venturing into dangerous ideological minefields, Professor Larry Tribe has just posted an article on the most controversial topic in the modern free speech era. His article, posted on SSRN, is entitled “Dividing ‘Citizens United’: The Case v. The Controversy.” The piece will appear in a future issue of Constitutional Commentary.

Here is how Tribe begins his article:

In the five years since Citizens United, that notorious and much-misunderstood Supreme Court decision has become more than just a case: it has become a symbol, a rallying cry. For some, it is an emblem of free speech values at their best. For others, it is a symptom of a deep sickness in our body politic. But we should not forget that it was a case first, with a plaintiff who wanted to distribute a political movie and was told ‘no.'”

And where does the all-too-liberal professor come down on the case that so many liberals love to hate? Well, here is his short take: “As a case dealing with a particular controversy over a proposed publication, I believe Citizens United was rightly decided.” He sounds like another liberal prepared to incur the wrath of his fellow liberals — merely consider how this issue has divided the ACLU. But hold on; the good professor may yet endear his liberal friends with the next admonition:

It represents a bizarrely cramped and naïve vision of political corruption and improper influence in the electoral process — one that has become characteristic of Roberts Court campaign finance law. And, more broadly, it is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism, in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression.”

Laurence Tribe

Professor Laurence Tribe

For those reasons and others, Professor Tribe believes we should rethink the First Amendment as it pertains to campaign finance law. “The First Amendment,” he adds, “requires hard choices about seriously conflicting yet equally foundational constitutional values: democracy, liberty, equality. Each one of these values is contested; no single value or theory can or should reign supreme.” He fears that the Court has begun to privilege “an overly skeptical and distrustful understanding of democracy and a too rigid and mechanical approach to liberty, leaving equality increasingly out of the picture.” That troubles him.

And yet . . . he remains concerned about First Amendment liberty being cabined. That troubles him, too. What to do? Nuance! Balance! Moderation!

On the one hand: “The Supreme Court’s sin in Citizens United is not that it has been wrong to recognize and embrace the libertarian values that inhere in the First Amendment.” (Applause: Conservatives)

On the other hand: “But the libertarian campaign finance law the Court has developed fails in the broader project vital to First Amendment jurisprudence: the sensitive accommodation of competing constitutional values.”  (Applause: Liberals)

→ The problem is that Citizens United represents an “unrelenting skepticism of legislators’ motives, a pathologically rigid doctrinal absolutism, and a naïve, unrealistic economic libertarianism and blindness to political corruption.”

The challenge: “How to understand the First Amendment, and deciding how it should blend libertarian, egalitarian, and democratic values, is among our most difficult constitutional questions.”

The warning: “There may be satisfaction in such intellectual absolutism, in painting in bright colors and with a broad brush. But a wiser path recognizes the difficulty of the normative issues at the heart of campaign finance law and the irreconcilable values that recent cases implicate.”

→ The plea: “This is not a plea for deciding any particular case one way or another. Indeed, as I stated at the outset, I believe that the Court rendered the correct judgment in favor of the right claimed by the corporation that sought to distribute a video critical of Hillary Clinton in Citizens United. This is instead a plea for greater judicial open-mindedness, sensitivity to nuance, and a measure of old-fashioned humility.”

→ The path: “The political branches should be left with some tools to regulate the alchemy through which economic inequality perpetuates itself by transmutation into political and civic inequality. The form that these regulations may take is properly policed by the federal judiciary . . .”

Question: Has Professor Tribe found some important common ground? A new day perhaps? Or has he, too, abandoned the values that for so long informed liberal thought? Yesterday repackaged? However you come me down, let the dialogue begin anew.

There is, of course, more (much more), and I urge readers to give serious thought to this thoughtful contribution to our free speech literature.

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8 Responses

  1. Demo Rep says:

    See the book –
    Sources of Our Liberties edited by Richard L. Perry (ABA, 1959)

    LONG history leading to USA Bill of Rights, Amdts 1-8.

    Too many really stupid SCOTUS folks and even worse law school profs.

  2. Brett Bellmore says:

    ““The First Amendment,” he adds, “requires hard choices about seriously conflicting yet equally foundational constitutional values: democracy, liberty, equality.”

    Hm, are all three of these values written into the Bill of Rights with an explicit guarantee? No, I don’t think so.

    I don’t find the choices hard at all. Government can’t be trusted to regulate speech. Anybody who thinks you can give government the power to censor speech, ESPECIALLY speech that might effect an election, and not have that power abused, is mad. Or maybe just dangerously naive.

  3. Shag from Brookline says:

    Textualists should note that the 1st A specifically restricts Congress, but makes no reference to the Executive and Judicial branches.

    • Brett Bellmore says:

      When the Executive’s job is to see the law faithfully executed, restricting what the law can be IS restricting the Executive.

      • Joe says:

        It does restrict the Executive to limit the law Congress could pass that the executive would enforce but that isn’t all the President does. Executive action per Art. II involves more than executing congressional passed law. As with the courts, all the same, freedom of speech covers executive action beyond that too. We can’t merely go by the text to do this.

        • Brett Bellmore says:

          That’s true, he also wages wars Congress declares.

          Tell me about these opportunities the President has to restrict freedom of speech, apart from enforcing laws.

          • Joe says:

            The President also has the power to deal with “sudden attacks” before Congress declares war, one of many executive powers that do not only involve laws Congress passes. Such executive power is still restrained by “First Amendment rights” though arguably it might be a matter of liberty expressed in the Due Process Clause or 9th (at times 10th) Amendments.

  4. Joe says:

    Government is given the power to regulate speech. Perjury is speech. Child pornography is speech. False commercial advertising of scam medicines is speech. “I’ll give you $5K if you vote my way” is speech. The government regulates such things. Brett apparently — since it at times “affects elections” (some a lot more than others obviously) — thinks it is “mad” to regulate some of these things. The government regulates things. It’s hard sometimes to draw lines. That is in the real world. Sloganeering is easier.

    Both sides do that sort of thing & we see this in lots of criticisms of the ruling. A lot of ignorance about corporations etc. The opinion was “rightly decided” as a matter of result (unless it should have been remanded for more fact finding), but the devil is in the details. Corporations can be regulated in various ways. The opinion itself upheld certain regulations. “Corporations” however should not be the end of the conversation. Most corporations are of little concern to us in the corruption context. Kramer Inc. isn’t going to hurt us.