This free speech case brought to you by….

This isn’t my usual gig. After all, to paraphrase one of my heroes, Senator Sam Ervin, I’m just a simple trial lawyer. I am no federal constitutional scholar. Nor am I ever likely to argue in the U.S. Supreme Court. I’m not even an expert on the First Amendment, though I’ve handled my share of speech-related cases.

Still, the stunning decision last week by the U.S. Supreme Court is mind-boggling. Now corporations are free to fund election campaigns out of their treasuries. You can expect this in the next electoral cycle: This seat brought to you by your friends at…. This Senate seat paid for by the Philip Morris…  Another Governor for KBR.

The Roberts Court showed its true colors last week when it issued its opinion in Citizen United v. Federal Election Commission, Case No. 08-205 (Jan. 21, 2010). Apologies for the slow-loading pdf format, but I wanted this tribute to intellectual dishonesty to come from the original source.

There are many reasons to be profoundly troubled by this decision.  Let’s start from the beginning with the Court’s overreaching. The case that came to the court involved a simple question about the limits on broadcast of a DVD critical of then-presidential candidate Hillary Clinton. But the conservative wing of the court–the one that espouses judicial restraint, loyalty to stare decisis and precedent–decided that this was the case to consider a corporation’s free speech rights and the continuing vitality of campaign finance reform.  As Justice Stevens–God bless him–explained in his dissent, the majority flatly ignored the posture of the case to reach the questions it wanted to answer.  That is not the stuff of conservatives.

I can imagine that the historic intellectuals of the Court’s conservative wing–giants like Justices Harlan and Frankfurter–are turning in their graves over this one. I suspect they would fairly spit at the notion that the majority of the Roberts Court is conservative as they understood that word.

It’s a comic moment in faux intellectualism. The majority consists of judges who purport to criticize activist judges. And here they are taking a case far outside of what was presented and using it as a vehicle to actively push the free speech rights of corporations.

And then there’s the underlying premise of a corporation’s first amendment rights. Last I checked, a corporation was a fictitious identity created for the protection of shareholders and preservation of capital.  The common law always viewed corporations as inert entities. I can recite the instructions given to juries in my sleep, “A corporation may act only through its officers and agents.”  But now we’re told that they have expansive free speech rights.

They are not people. They cannot act. Justice Stevens points out in his dissent that they can neither vote nor run for office, and they can be controlled by foreign entities whose interests may be hostile to our democracy. I would add that they can’t be imprisoned or executed, though on rare occasions, some deserve both.

I am reminded of this statement about the role of the Chief Justice of the United States Supreme Court:  “And I will remember that it’s my job to call balls and strikes and not to pitch or bat.” U.S. Senate Judiciary Committee, Opening Statement of Judge John Roberts (Sept. 12, 2005) (confirmation hearing for nomination to serve as Chief Justice), reprinted by CNN here.

Seasoned trial lawyers know that sometimes the court rules with you, and sometimes you lose. Those of us who believe in the rule of law acknowledge the authority of the court and do so with grace whether we have won or lost on any particular day. That professional grace is necessary. Still, this ruling marks a sad day for those of us who believe in the rule of law and who want to believe in the moral authority of the U.S. Supreme Court.

For those interested in a more pointy-headed discussion of the ideological demise of our current Supreme Court, here’s the link to a relatively short law review article by a law professor, David Strauss, that provides some thoughtful analysis on how far off the tracks the so-called conservative wing of the court has wandered.

For my part, I can only shake my head at the triumph of corporations running amok.

David Sugerman

Revised: 26 Jan 2010. See comment

One thought on “This free speech case brought to you by….

  1. As noted, our editorial staff revised the original publication this morning. Just between us kids, Mr. Sugerman sorely needs a proof reader and an editor. He likely needs a number of other things, too, like a therapist and an occasional sharp kick in the pants. But I digress.

    As your editor, I apologize that our quality assurance department let this one go public before someone with some sense could read and edit it for syntax, repetition, and clarity. But then again, I wasn’t going to work late, given what that jerk, Mr. Sugerman, pays me for my services.

    The Editor.

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