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The Supreme Courts decision inCitizens United v. Federal Election Commission(2010) continues to stoke controversy more than 14 years after it was decided. It even got ashout-out in the critically-acclaimed Barbie movie. Are corporations people? Is money speech? Whats the First Amendment got to do with this?

For anyone interested in free speech, election laws, campaign finance, or money in politics, providing accurate answers to these questions is crucial. Lets dive in.

Lets begin by noting that there are lots of ways that money is involved in politics, including donations to candidates, political parties, and political action committees (PACS), as well as funds spent on lobbying and issue ads not mentioning a candidate. This isnot whatCitizens United was about. These common political activities can greatly influence elections and are subject to their own rules, but those rules were not before the Court here.

The key rule before the court was theBipartisan Campaign Reform Act, passed in 2002 to address the proliferation of corporate money in federal elections. Like most divas, BCRA is a lot, with a rich backstory of campaign finance rules and corresponding lawsuits, but were concerned here only with its ban on corporations spending money on media about political candidates close to an election. Specifically, BCRA banned:

For example, BCRA would have banned a nonprofit corporation from spending money on billboards promoting Donald Trump, the Republican Party nominee, in October before a November 4 general election.

Lets also be clear that corporations include not just Fortune 500 companies, but also labor unions, mom-and-pop shops, newspapers, nonprofit organizations, advocacy groups, and a vast array of financial and nonfinancial entities. Everything from the ACLU, the NRA, Tesla, Apple, the New York Times, to even your favorite cafe, bar, restaurant, or gym is likely corporate. Because of the substantial financial benefits incorporation provides, most of Americas most beloved (and hated) organizations are corporations subject to BCRA.

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 reviewdescribes it as boldly negative, attorney and journalist Dahlia Lithwickcalled it virulently anti-Clinton, and Justice Breyerdescribed it as not a musical comedy. (So, its got that going for it.)

Yet BCRA 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. Cue the federal lawsuit that wound its way up the Supreme Court in 2010.

In a 5-4 decision, the Court struck down BCRAs 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.

Atoral argument, the justices made hay of BCRAs 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.

The first pillar of themajority decision is that the First Amendment prohibits the government from discriminating based on a speakers 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 Amendments protection for offensive speech by ensuring diverse and controversial speakers can participate in our democracy.

From Buckley v. Valeo (1976) to Citizens United v. FEC (2010), legal disputes over the constitutionality of campaign finance laws have captured the publics attention for decades.

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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. Fordecades beforeCitizens 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 FIRE is a nonprofit corporation that uses its speech rights to speak up for the rights of others.)

The Court explained how a ban on corporate expenditures is a ban on speech. Thislong-established First Amendment principle prevents the government from repress[ing] speech by silencing certain voices at any of the various points in the speech process. Unless your advocacy consists entirely of shouting at strangers in the middle of the street, you need money to amplify your words. Pens and pencils, printers and paper, computers and connection to the internet all cost money. Just imagine the potential for censorship if the state could restrict purchasing goods and services to broadcast your message. Any spending limit necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.

BCRA, like many campaign finance laws, furthers the goal of addressing the appearance of corruption and, according to the government, the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the publics support for the corporations political ideas. But is this interest enough to justify BCRA?

When a law burdens political speech, courts generally applystrict scrutiny to evaluate whether it is constitutional under the First Amendment, which requires assessing whether it is narrowly tailored to a compelling government interest. In other words, does the law advance its goals without burdening protected speech any more than is necessary?

The First Amendment doesnt tolerate burdens on core political speech based on mere speculation of potential corruption.

Much of campaign finance regulation rests on dispelling corruption. If Americans believe their elections are bought and paid for, why vote? Why participate at all? This is why corporate donations to candidates remain largely banned. But this interest becomes too attenuated when it comes to any communication that merelymentions a candidate. And, on a fundamental level: Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. Some level of connection between expression and politics, and the responsiveness it creates, is a function of democracy.

The Court also rejected the notion that the immense wealth of corporations justifies BCRA. Restricting speech in these industries would muffle the voices that best represent the most significant segments of the economy. Additionally, this interest doesnt justify a ban onallcorporations, including those without massive wealth, such as small newspapers. Even if the target is wealthy companies, the First Amendment does not tolerate laws censoring media corporations.

Because of the decision, corporations can spend to their hearts desire on independent expenditures close to an election. There are still restrictions on donations, lobbying, issue ads, fundraisers, endorsements, and tons of other forms of advocacy contact your friendly neighborhood campaign finance attorney for more information on that. States also havedifferent rules for their elections as BCRA mostly only affects federal elections.

And if you disagree with the decision, we encourage you to read the dissent, which does an excellent job of breaking down the majoritys rationales. The four dissenting justices decried the corrupting effect of corporations ability to spend unrestricted sums on elections, claiming this can cause cynicism and disenchantment and an increased perception that large spenders call the tune and a reduced willingness of voters to take part in democratic governance. However, as the majority pointed out, BCRA doesnt even affect the most common forms of money in politics, such as donations, lobbying, issues ads, and independent expenditures outside of election season. The First Amendment doesnt tolerate burdens on core political speech based on mere speculation of potential corruption.

For more on the decision, its merits, and its impact, seeSCOTUSblog for the case materials and a collection of political commentary.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech,submit your case to FIRE today. If youre a faculty member at a public college or university, call theFaculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If youre a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).

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Citizens United, campaign finance, and the First Amendment - Foundation for Individual Rights and Expression

As an American Jew living in Israel for the past six years, Im well-practiced in translating American culture to locals: Whats Chick-fil-A and why is it closed on Sundays? Whats the deal with baseball? Why are American cars so big? Typically, these innocent inquiries are a breeze to answer. But over the past few weeks, my dueling identities have been set aflame, and my role as a bridge between American and Israeli cultural norms has been tested.

Like most Jews and Israelis around the world, Ive been incredibly angered and saddened by the growing wave of rank antisemitism and breathless Israel hatred occupying campus lawns from Upper Manhattan to Los Angeles. Not to mention the protesters apparent hatred of their own country. Whether theyre draped in keffiyehs demanding humanitarian aid, hounding Jews about their loyalties, or waving Hezbollah flags and parroting Hamas propaganda, this protest movement has made clear that influential segments of American academia hate me and the people that I love. Not a peep about the Israeli hostages, nary a condemnation of Hamas for starting this war and maximizing their own peoples misery. Theres nothing complicated in that.

And then as I discuss these issues with Israeli friends and colleagues, my Americanness begins to peak through. Not in how these protests should be perceived thats abundantly clear. The movements top ranks and organizers like Students for Justice in Palestine are unabashedly dismissive of the October 7th atrocities and reject outright the Jewish claim to a homeland. There have been countless incidents showing an almost joyful hatred of Jews and Israelis. Unfortunately for the cause some of them claim to support (Palestinian rights, a ceasefire for the war in Gaza), the movement has been corrupted from the roots.

But how should these protesters be handled? What should university authorities, law enforcement, and politicians do to quell the hate? Many Israelis I know cant seem to fathom why these kids arent simply rounded up, handcuffed, and thrown in prison. They should at least be expelled, no?

I dont have the answers. I do, however, have a deeply ingrained respect for the First Amendment, an understanding of the limits of presidential power, and an awareness of the complicated legacy of policing in America. Its this brew that has often pitted me against the understandably straightforward Israeli alarm this is Nazi Germany in the 1930s, so lock them up and crack down harder before it extends beyond the campus. What these students are doing, as noxious and dangerous as I find much of it, is not strictly against the law. In fact, aside from explicit support of Hamas or Hezbollah, these protests are entirely legal. Campus administrators are not czars in tweed jackets. They cannot bend the law to their will.

Nor should they! the American in me proudly proclaims. The First Amendment protects speech, no matter how distasteful and offensive. Anyway, isnt it better to let these cosplaying jihadis express their unpopular views in public? Its self-destructive. But one day an Israeli friend sent me a video of students gleefully shouting From the river to the sea, Palestine will be free, a not-so-subtle call for Israels dissolution. Another friend sends me a video of a pack of students unfurling an Intifada flag atop a building.

The Israeli in me awakens. Round these kids up, shut down the protests, and pack up the tents. This is violence, nothing less, First Amendment be damned. And then Republicans begin to weaponize the protests for their political gain. Right-wing media pegs George Soros as a Hamas supporter. Republican of Speaker the House Mike Johnson takes to the Columbia campus to chide the protests, despite years of dead silence when it comes to antisemitism in his party.

Other Republicans jump at the chance to condemn the protesters as antisemitic and anti-America all while voting against the Antisemitism Awareness Act because it may prevent them from branding Jews as Christ killers. I try explaining these cynical actions to an Israeli friend. Sure, but theyre speaking up for us, he says. Where are the Democrats?

My internal conflict continues. None of this is easy not for Americans, not for Israelis, and not for Jews around the world pocketing their kippot and tucking in their tzitzit fringes due to rising hatred. Its easy to get mired in the confused, ideologically corrupted world of American academia. So for now, I recognize that as an American living in Israel, there is a tension that might be impossible to resolve. I embrace the friction. Meanwhile, the war rages on. Israelis and Gazans dont have the luxury to pitch tents on a perfectly manicured lawn and navel gaze.

Alec has a dual identity as a classic American Jew (everything bagels, Larry David, kvetching) and a modern-day wannabe Zionist pioneer that lives with his beautiful sabra partner and dog in Ramat Gan, lamenting Israel's lack of bagels.

More:
An American-Israeli Caught Between Antisemitism and The First Amendment - The Times of Israel

Norman Siegel has been a civil right and civil liberties lawyer in New York City for over 50 years, spending a significant portion of his career defending free speech, often to his own detriment. The pro-Palestinian protests at Columbia University and colleges across the country have highlighted the topic of free speech. Siegel joined NY1s Errol Louis to discuss how the protests resemble demonstrations from the past. He explained that it is time that people began to understand the First Amendment properly.

Siegel also reflected on his storied legal career, including his tenure at the New York Civil Liberties Union and how he helped create the Civilian Complaint Review Board. Finally, they talked about how he advocates for families who lost loved ones on Sept. 11.

Join the conversation, weigh in on Twitter using the hashtag #NY1YouDecide or give us a call at 212-379-3440 and leave a message. Or send an email to YourStoryNY1@charter.com.

ABOUT THE SHOW

NY1s Errol Louis has been interviewing powerful politicians and cultural icons for years, but its when the TV cameras are turned off that things really get interesting. From career highlights, to personal moments, to stories that have never been told, join Errol each week for intimate conversations with the people who are shaping the future of New York and beyond. Listen to "You Decide with Errol Louis" every Wednesday, wherever you listen to podcasts.

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Norman Siegel: A lifetime of protecting the First Amendment - Spectrum News NY1

Tuesday marks the second day of pro-Palestinian protests at both UW-Madison and UW-Milwaukee. The groups have pitched tents and created an encampment on each campus, joining protestors at universities nationwide demonstrating against the war in the Middle East. Those protesting at UW-Milwaukee said they will not leave until the university meets their demands. Read those demands here. "Throughout all of these student movements, it's really inspiring to see students mobilize and come together, but we don't want to distract from the fact that we are all here for Palestinian liberation," UW-Milwaukee junior Sania Syed said Tuesday.In Milwaukee, the encampment's atmosphere remained relaxed. UW-Milwaukee police patrolled the area outside Mitchell Hall, but WISN 12 News did not see any police interact with protestors during the day. The right to protest is protected by the First Amendment, but Wisconsin law prohibits camping on university grounds. WISN 12 News Hannah Hilyard asked a First Amendment legal expert which one takes precedent. "The First Amendment right of assembly does not extend to a right to trespass, and as long as the rules limiting that process are neutral and provide adequate alternative grounds to be heard, which is key, then those rules are permissible," UW-Madison professor emeritus of political science Howard Schweber explained. "We clearly have students on both campuses camping out with tents, and we're not seeing any arrests. Why is that?" Hilyard asked. "What universities may do, that's very different than what they should do," Schweber answered. "To be a university administrator, to be a good one, requires exercise of discretion, knowing your campus, knowing the people. There's nothing wrong with choosing not to enforce a rule, again, as long as it is for a good reason and done neutrally."Protest organizers said they will fight back legally if forced out. Late Monday, the university responded to the protestors' demands. Read their response here. Organizers call the response disappointing. UWM released its latest statement Tuesday afternoon. It reads: "UWMs first priority is the safety and well-being of our students, employees and visitors. UWM Police will continue to monitor the encampment on the lawn south of Mitchell Hall. Members of the UWM administration are having conversations with students and community members in the background and are working on peaceful resolutions. Though we understand the encampment is unsettling for many in our community, the encampment has not disrupted any events, classes or programs on campus. UWM Police will remain present at the encampment but cannot publicly disclose law enforcement procedures."

Tuesday marks the second day of pro-Palestinian protests at both UW-Madison and UW-Milwaukee.

The groups have pitched tents and created an encampment on each campus, joining protestors at universities nationwide demonstrating against the war in the Middle East.

Those protesting at UW-Milwaukee said they will not leave until the university meets their demands. Read those demands here.

"Throughout all of these student movements, it's really inspiring to see students mobilize and come together, but we don't want to distract from the fact that we are all here for Palestinian liberation," UW-Milwaukee junior Sania Syed said Tuesday.

In Milwaukee, the encampment's atmosphere remained relaxed.

UW-Milwaukee police patrolled the area outside Mitchell Hall, but WISN 12 News did not see any police interact with protestors during the day.

The right to protest is protected by the First Amendment, but Wisconsin law prohibits camping on university grounds.

WISN 12 News Hannah Hilyard asked a First Amendment legal expert which one takes precedent.

"The First Amendment right of assembly does not extend to a right to trespass, and as long as the rules limiting that process are neutral and provide adequate alternative grounds to be heard, which is key, then those rules are permissible," UW-Madison professor emeritus of political science Howard Schweber explained.

"We clearly have students on both campuses camping out with tents, and we're not seeing any arrests. Why is that?" Hilyard asked.

"What universities may do, that's very different than what they should do," Schweber answered. "To be a university administrator, to be a good one, requires exercise of discretion, knowing your campus, knowing the people. There's nothing wrong with choosing not to enforce a rule, again, as long as it is for a good reason and done neutrally."

Protest organizers said they will fight back legally if forced out.

Late Monday, the university responded to the protestors' demands. Read their response here.

Organizers call the response disappointing.

UWM released its latest statement Tuesday afternoon. It reads:

"UWMs first priority is the safety and well-being of our students, employees and visitors. UWM Police will continue to monitor the encampment on the lawn south of Mitchell Hall. Members of the UWM administration are having conversations with students and community members in the background and are working on peaceful resolutions. Though we understand the encampment is unsettling for many in our community, the encampment has not disrupted any events, classes or programs on campus. UWM Police will remain present at the encampment but cannot publicly disclose law enforcement procedures."

Link:
Day 2 of pro-Palestinian protests on Wisconsin campuses, First Amendment expert weighs in - WISN Milwaukee

OPINION:

Tyrants dont like people who speak truth to power. Cue the rise of protest laws, which take the governments intolerance for free speech to a whole new level and send the resounding message that resistance is futile.

In fact, ever since the Capitol protests on Jan. 6, 2021, state legislatures have introduced a broad array of these laws aimed at criminalizing protest activities.

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There have been at least 205 proposed laws in 45 states aimed at curtailing the right to peacefully assemble and protest by expanding the definition of rioting, heightening penalties for existing offenses, or creating new crimes associated with assembly.

Weaponized by police, prosecutors, courts and legislatures, these protest laws, along with free speech zones, bubble zones, trespass zones, anti-bullying legislation, zero tolerance policies, hate crime laws, and a host of other legalistic maladies have become a convenient means by which to punish individuals who refuse to be muzzled.

In Florida, for instance, legislators passed a no-go zone law making it punishable by up to 60 days in jail to remain within 25 feet of working police and other first responders after a warning.

SEE ALSO: One-third of adults say the First Amendment goes too far

Yet while the growing numbers of protest laws cropping up across the country are sold to the public as necessary to protect private property, public roads or national security, they are a wolf in sheeps clothing, a thinly disguised plot to discourage anyone from challenging government authority at the expense of our First Amendment rights.

It doesnt matter what the source of that discontent might be (police brutality, election outcomes, COVID-19 mandates, the environment, etc.): protest laws, free speech zones, no-go zones, bubble zones, trespass zones, anti-bullying legislation, zero tolerance policies, hate crime laws, etc., aim to muzzle every last one of us.

To be very clear, these legislative attempts to redefine and criminalize speech are a backdoor attempt to rewrite the Constitution and render the First Amendments robust safeguards null and void.

This is the painful lesson being imparted with every incident in which someone gets arrested and charged with any of the growing number of contempt charges (ranging from resisting arrest and interference to disorderly conduct, obstruction, and failure to obey a police order) that get trotted out anytime a citizen voices discontent with the government or challenges or even questions the authority of the powers-that-be.

Journalists have come under particular fire for exercising their right to freedom of the press.

According to U.S. Press Freedom Tracker, the criminalization of routine journalism has become a means by which the government chills lawful First Amendment activity.

Journalists have been arrested or faced dubious charges for publishing, asking too many questions of public officials, being rude for reporting during a press conference, and being in the vicinity of public protests and demonstrations.

Its gotten so bad that merely daring to question, challenge or hesitate when a cop issues an order can get you charged with resisting arrest or disorderly conduct.

These incidents reflect a growing awareness about the state of free speech in America: you may have distinct, protected rights on paper, but dare to exercise those rights, and you risk fines, arrests, injuries and even death.

Case in point: Tony Rupp, a lawyer in Buffalo, New York, found himself arrested and charged with violating the citys noise ordinance after cursing at an SUV bearing down on pedestrians on a busy street at night with its lights off. Because that unmarked car was driven by a police officer, thats all it took for Mr. Rupp to find himself subjected to malicious prosecution, First Amendment retaliation and wrongful arrest.

The case, as Jesse McKinley writes in The New York Times, is part of a growing debate over how citizens can criticize public officials at a time of widespread reevaluation of the lengths and limits of free speech. That debate has raged everywhere from online forums and college campuses to protests over racial bias in law enforcement and the Israel-Hamas war. Book bans and other acts of government censorship have troubled some First Amendment experts. Last week, the Supreme Court heard arguments about a pair of laws in Florida and Texas limiting the ability of social media companies such as Facebook to ban certain content from their platforms.

Ultimately, what the architects of the police state want are submissive, compliant, cooperative, obedient, meek citizens who dont talk back, dont challenge government authority, dont speak out against government misconduct, and dont resist.

What the First Amendment protects and a healthy constitutional republic requires are citizens who routinely exercise their right to speak truth to power.

Yet there can be no free speech for the citizenry when the government speaks in a language of force.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His latest books The Erik Blair Diaries and Battlefield America: The War on the American People are available at http://www.amazon.com. Whitehead can be contacted at johnw@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at http://www.rutherford.org.

Originally posted here:
First Amendment under attack: How the Police State muzzles our right to speak truth to power - Washington Times