First Amendment Blockbuster at the Supreme Court

J. Justin Wilson
J. Justin Wilson · June 29, 2009

Arlington, Va.—The U.S. Supreme Court today ordered a new round of oral arguments in Citizens United v. FEC, the “Hillary: The Movie” case.  The Court wants parties to address whether Austin v. Michigan, a case that bans certain political speech by corporations, including nonprofit corporations such as Citizens United, should be overturned.  The Court also wants to consider whether part of McConnell v. FEC, upholding the so-called “electioneering communications” ban in McCain-Feingold, should likewise be overturned and the ban struck down entirely.

“The Court has set up a blockbuster case about Americans’ First Amendment rights to join together and speak freely about politics,” said Steve Simpson, a senior attorney with the Institute for Justice, which filed a friend-of-the-court brief in Citizens United v. FEC.  “A majority of the High Court appears to recognize the grave threat to free speech posed by both the electioneering communications ban in McCain-Feingold and the ban on corporate political speech.  This case could mark a significant advance for First Amendment rights and will have major implications for state laws nationwide.”

Indeed, a study released today shows the critical need to rein in speech regulations that have flourished since the Court upheld the electioneering communications ban in McConnell.  At least 15 states have electioneering communications laws, and in many cases those laws regulate even more speech by more groups than the federal ban.  Indeed, just last month, in response to a lawsuit filed by the Institute for Justice, a federal judge struck down Florida’s law.  He noted that “no court has ever upheld such a sweeping regulation of political speech.”

The study is the first ever to examine the impact of speech regulations on the kind of nonprofit corporations at issue in Austin.  The study shows that these laws impose on nonprofit groups a heavy regulatory burden for their speech and most lack the resources to comply.  “Locking Up Political Speech: How Electioneering Communications Laws Burden Free Speech and Civic Engagement” by political scientist Dr. Michael Munger of Duke University is available at

“Since McCain-Feingold, campaign finance regulation has exploded, leaving practically no room for free speech about politics,” said Bill Maurer, an attorney with the Institute for Justice and lead counsel for the Institute on its Citizens United brief.  “With each new regulation, more citizens are shut out of the political process.  That is why it is essential for the Court to revisit and indeed overturn Austin and McConnell.”

The Citizens United case came about because the Federal Election Commission banned the airing of “Hillary: The Movie,” produced by the nonprofit Citizens United, on cable TV and required the group to “name names” of the film’s backers by disclosing to the government detailed personal information about donors if the group ran TV ads for the film.  At oral argument, justices appeared concerned that if the government could ban corporate-funded films about candidates, it could also ban books.  Revisiting Austin and McConnell allows the Court to fully consider whether speech regulation has gone too far.

“The Court will now squarely confront the inevitable consequences of regulating political speech:  If the government can ban ads, it can ban movies and books as well,” said Simpson.  “But we don’t ban books in America.  Once you start regulating political speech, there is no place to stop.  This is exactly why the First Amendment forbids government from controlling and limiting speech in the first place.”

Simpson continued, “It takes money to speak effectively, so the right to free speech must include the right to spend money and raise money to make that speech heard.”

“Reconsidering Austin and McConnell is a critical start to fixing what is wrong with campaign finance regulation, but it should not be the end,” said Simpson.  “The root of the problem stretches back 30 years to Buckley:  the belief that some speech deserves government regulation simply because it advocates for one candidate over another.  In America, we have the right to try to convince fellow citizens how to vote.  It’s called ‘political speech,’ and it’s exactly what the First Amendment was designed to protect.  We cannot fully protect First Amendment rights until the Court does away with the distinction between ‘good’ speech and ‘bad’ speech altogether.”