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Legal Principle at Issue

Should a feature length documentary about a candidate for political office be treated like an advertisements and therefore be subject to regulation under the Bipartisan Campaign Reform Act?

Action

In a 5-4 decision, the Supreme Court struck down BCRA’s ban because it violated the fundamental First Amendment right to engage in political speech. The Court held that people do not lose their speech rights because they decide to form a corporation; that the First Amendment prohibits discriminating against classes of speakers; that the BCRA discriminated against one type of speaker, corporations; and that a restraint on spending for communication is, in fact, a restraint on speech.

Facts/Syllabus

In the runup to the 2008 Democratic Party primary election between Hillary Clinton and Barack Obama, the conservative nonprofit group Citizens United sought to air “Hillary: The Movie,” a political documentary about Clinton. One review describes it as “boldly negative,” attorney and journalist Dahlia Lithwick called it “virulently anti-Clinton,” and Justice Breyer described it as “not a musical comedy.” 

Yet the Bipartisan Campaign Reform Act of 2002 prevented Citizens United from distributing the film in the heat of this campaign because the movie was (1) corporate-funded (2) political material (3) naming a specific candidate (4) within 30 days of a primary election. 

At oral argument, the justices made hay of BCRA’s grave potential to censor a wide array of political speech. Anything from books and news articles to billboards and movies could violate the act, even if they contain just a single line naming a candidate. In explaining how BCRA restricts everything from environmental groups supporting pro-green candidates to the NRA condemning politicians pushing gun control, the Court decried these “classic examples of censorship.”

Importance of Case

The first pillar of the majority decision is that the First Amendment prohibits the government from discriminating based on a speaker’s identity. The government cannot ban speech merely because speakers are corporations, especially given that they “contribute to the discussion, debate, and the dissemination of information and ideas that the First Amendment seeks to foster.” This bedrock principle supplements the First Amendment’s protection for offensive speech by ensuring diverse and controversial speakers can participate in our democracy.

Corporations are not literally people, of course, but they are made up of people. They are one way that people collectively organize themselves: Labor unions, advocacy groups, nonprofits, newspapers, small businesses — and, yes, other corporations — have free speech rights. This is not exactly a novel concept. For decades before Citizens United, courts have consistently struck down rules squelching corporate speech. The key takeaway is the government cannot say that free speech rights differ based on the form of an entity people have chosen to form. (We do have a vested interest in this outcome — ����ֱ�� is a nonprofit corporation that uses its speech rights to speak up for the rights of others.)