Election Day: The President, the Supreme Court, and the Cost of Free Speech

“[The] government of the people, by the people, for the people, shall not perish from the earth.” - Abraham Lincoln, The Gettysburg Address, 1863

“Corporations are people, my friend” -Mitt Romney, Iowa State Fair, 2011

Free speech has historically functioned as a bedrock for self-expression and empowerment of the people.  A series of close Supreme Court decisions has changed the nature and balance of this right, resulting in more speech for some and less for others.  The next president will most likely have the opportunity to appoint one or more Justices to the Court.  As we approach this presidential election, whose winner will likely determine the Supreme Court’s direction for some time, we must consider that this essential element of democracy is in danger.  Our union survived the Civil War, but can it survive a corporate takeover?

Like many of our principles and rights, the idea and practice of freedom of speech has evolved. Free speech, as a right, has constricted and expanded since we adopted the Bill of Rights as part of our constitution.    In the mid-1930s, free speech, as we have come to understand it, was established by the Supreme Court and maintained through the mid-1970s as a fundamental component of American democracy.

Since the mid-1970s, however, the Court has unjustifiably shaken this constitutional and cultural understanding.  Coincidentally, the Court has had a conservative majority since 1969.  During this time, the Court expanded corporate, business, and wealthy people’s constitutional speech, while restricting the speech most available to people of ordinary means.  The Court did this, most notably, by instituting the principles that money is speech and corporations are people!

Money Is Speech and Corporations Are People

Prior to 1976, well established First Amendment laws allowed limits on campaign financing because: (1) limits were imposed on money and not directly on speech; and (2) these limits were not total prohibitions on money but, rather, limits on amounts of money.

The Court went about removing the first obstacle to unlimited campaign financing by ruling in Buckley v. Valeo that money is speech; therefore, limits imposed on money are essentially limits imposed on speech.  They then set in motion the removal of the second obstacle, limits on amounts of money, by determining that government may not limit the quantity of protected speech.  This means that limits on the quantity of speech are treated the same way courts have handled complete prohibitions of speech–with the highest level of constitutional protection–and, remember, money is speech.

Viewing speech in this way makes for an attractive argument, as it reinforces the traditional belief that government should not dictate the quantity or intensity of speech.  This supports the idea that limiting the quantity of speech suppresses some measure of speech.  However, the main reason to reject extending heightened constitutional protection to unlimited quantities of money (ahem) speech is ignored: When money is defined as speech and that “speech” is unconstrained, the “speech” of the wealthy drowns out the voice of the common person.  In matters of public debate, the Court has given an almost infinitely large megaphone to one side, and one side only.

In the Buckley decision, in effect, the Court began to really expand constitutional speech rights for persons of means, such as wealthy persons and corporations.  This culminated in the much-debated 2010 case, Citizens United v. Federal Election Commission, which further favored the expansion of the free speech rights of the wealthy by declaring that the government could no longer restrict independent political expenditures by corporation and unions.  These decisions radically diverged from the text and purpose of the First Amendment, now confirming that the person –who is a corporation, is allowed speech–which is money!

But Not All Money/Speech Is Equal

While courts have been expanding the more expensive forms of speech, culminating in ridiculous acts masquerading as free speech, such as massive anonymous contributions to Super-PACs, many limits have been placed on the amount of speech where speech costs less.  Limits placed on non-monetary speech include determining the number of picketers or demonstrators, the number of permits for demonstrations and parades, the level of amplifiers, and the amount and size of protest signs.  The Court justified this in Frisby v. Schultz by considering whether the quantity allowed is “ample” or if more quantity is “necessary to convey [their] message.”  However, courts do not apply this same standard to campaign finance cases and they seem to be oblivious to the hypocrisy of limiting the number or picketers while removing limits on campaign finance.

Restricted Political Speech: The Time, Place, and Manner Doctrine

The Court also has a history of using “reasonable” time, place, and manner restrictions to control speech when it jeopardizes government functions or social interests.  This includes restrictions, such as noise limits in the middle of the night or the classic prohibition of yelling “fire” in a crowded theater.  I agree that some restrictions may indeed be necessary, but the modern Court has expanded the time, place, and manner doctrine so much that lower courts and municipalities are now using the doctrine as a basis for confining First Amendment protected demonstrations, and to selectively restrict the quantity of speech.

Public Property, But No Public Discourse: Public Forum Doctrine

The public forum doctrine is another barrier that the Court has used to limit speech of those with ordinary means.  In 1939, the Court ruled in Hague v. CIO that certain public areas, such as sidewalks and parks are open to free speech regardless of that speech’s point of view and that it is constitutionally forbidden to limit access.  The Court expressly stated, “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.  Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens.”

In the 1980s the Court began to use the doctrine to redefine the concept of a public forum by instituting a threshold for speech.  They rejected protected speech in open, public areas, arguing that speech was not the “principal purpose” of the public space at issue.  This makes no sense.  Speech is rarely the principal purpose of a public facility.  The primary purpose of a meeting oak is to turn sunlight into food so that acorns can be produced, not as a locus for public speech.  We, as a society, have made a constitutional, social, and cultural commitment to freedom of speech, rooted in a traditional understanding of the purpose of speech as a means to further and promote democracy.  That is why public forums have been places of free speech, not because it was the “primary purpose” of the forum.

Appointer-in-Chief

The Court’s modern interpretation is not completely for or against free speech, but, rather, for expanding some speech–specifically speech rights available to very wealthy people, corporations, and businesses, while for limiting some speech–particularly the variety more accessible to the ordinary person.  The Court, beginning with the Buckley decision, set us in this direction by declaring, without a coherent explanation or consistent approach, that money is speech and that government may not limit the quantity of protected speech.  The recent Citizens United decision has expanded and reinforced this idea by declaring that government may not place limits on corporate and union campaign expenditures.  Is this the right track or intent of free speech rights?

The Supreme Court will likely have several vacancies during the next Presidential term.    One presidential candidate’s party has clearly demonstrated a will to expand “speech” of the extremely wealthy time and time again.  While the other candidate has the opportunity to make appointments that could lead to a liberal majority in the Supreme Court for the first time since 1969.  Who we elect as President will determine who is appointed, and that one determination will dictate how free speech rights are interpreted for a very long time; “of the corporations, by the corporations, for the corporations …” just doesn’t have the same ring.


Brandy Hagler is a third year student at Charlotte School of Law.  She is the student chapter President of the American Constitution Society and the student chapter Co-Chair of the National Lawyers Guild.  She is a member of the Civil Rights Clinic at Charlotte School of Law.  She was an advocate for free speech rights during the 2012 Democratic National Convention, organizing National Lawyers Guild efforts in Charlotte, NC.

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