Brett Stuff
Judging the Judges
Term Year: 2009

Citizens United

Citizens United v. Federal Election Commission


Judging the Judges
Test Case

I am only getting to this write-up months and months (about four, I believe, OK, now it is a solid six months) after reading the Opinion. So, this will pass as a blanket disclaimer that my memory is a bit fuzzy (and I've never been one to take comprehensive notes), so I may get the Judges' Opinions wrong. Of course, what follows is my Opinion of an Opinion, so maybe (if facts are important to you), you'd be best served by referencing the base documents and reading the raw Opinion, itself.

And if that's not clear, rather than prefacing every statement or implied fact (as follows in the document below or for any of these rants, for that matter) with 'this is my opinion', 'that's my interpretation', and so on and so forth, this shall be my blanket disclaimer.

Do not rely on my presentation of the facts... ever.

Unanimous Opinion of the Court

Opinion: Court
Written: Kennedy
Joined: Roberts, Scalia, Alito, Thomas, Stevens, Ginsburg, Breyer, Sotomayor

Brett: Agrees and/or Joins
Pages: 57

Although some of the above noted jurists joined only in part, they all joined in the decision, so I will treat all concurring in part as concurring in whole for ease of bookkeeping... and intend to do as such throughout this project. Thus, the meat and potatoes of the decision was unanimous.

My takeaway quote from the decision is:
Government may not suppress political speech on the basis of the speakerís corporate identity.
My (personal) rationale (in support of the opinion) is quite simple (and thus, does not take 57 pages to convey). I simply believe Freedom of Speech is important... so important that I am against any regulation limiting Freedom of Speech (in any way), keeping in mind that if I were to be in favor of any limitation of speech, the first Freedom of Speech I would impair would be your Freedom to disagree with my belief in a universal Freedom of Speech. And do you really want to go down that road?

As to the other conceptual areas covered, well, what say we go down them one by one?

Stare Decisi
Stare Decisi holds that previous decisions (by The Court, as in, The Supreme Court) should hold precedence unless there exists a compelling reason to overturn the previous opinion. But that's a stupid idea... and completely in opposition to the principle of a Supreme Court of the Land. In fact, the whole reason the Supreme Court agreed to hear this case was so that it could decide whether to uphold (or not) a previous decision. So for me (and any rational person who understands the process), Stare Decisi is a non-starter.

Compelling Government Interest
The above argument concerning Stare Decisi is so much boilerplate. If I should ever argue in favor of Stare Decisi, feel free to stop reading my blog. Another bit of boiler plate concerns the phrase Compelling Government Interest. In this case, the question is whether the given infringement on Free Speech serves a Compelling Government Interest and the problem with that is that it offers no guidance. The government (or any entity) will always have a reason for its actions. That there is a rationale behind silencing corporations (or subjecting them to unfair or additional restrictions) is a given. I'm an argumentative type guy. I can always give a reason (call it an argument) for or against pretty much anything. But can one find a compelling reason to bypass The Amendments to The Constitution of The United States of America (and turn the paper it was written on into so much pulp)? Probably not. Of course (and this would have to be the subject of a different rant), rather than a listing of rights (as per The Constitution), what there really should be is a Hierarchy of Rights... juxtaposed against a Hierarchy of Obligations. But I will not be getting into that here. Suffice to say, honoring the phrase Compelling Government Interest introduces (perhaps, just perhaps) the biggest loophole into our legal system there ever was.

Direct versus Indirect Contributions
There is little difference (to me) between giving money to a candidate and spending money on behalf of a candidate (this case concerns the later). It's nitpicking. One is not more conducive to corruption than the other. And as such, I need not tease the two apart any further.

Media Corporations
I liked the argument (but it was by no means decisive for me) that the purpose (the very purpose) of some corporations is to effect public opinion (TV stations, newspapers, magazines, websites, etc). And if the Law in Question was upheld (to the letter), it would necessitate shutting down the entire Media Establishment during the election cycle (the narrow point of law being discussed having to do with the 30/60 day time period prior to elections). This may in itself be a good thing (ending pre-electorial advertising... and coverage), but it sort of runs counter to the idea of Free Speech.

Disclosure of Source
You know how those television ads always say something along the lines of 'This ad brought to you by An Organization of People in Support of This Idea,' where An Organization of People in Support of This Idea tends to be some legal structure put together for the sole purpose of running television ads. Well, since that's why the entity was created, announcing the entity in the ad is meaningless, as one simply chooses whatever name for their corporation that they wish to have read during the commercial. It hardly reveals the source of funding.

The Distortion of Large Sums of Money
This is, perhaps, the gemstone in this legal briefing: the admission by The Supreme Court that there can be a corrosive effect (on Society) from money. Read my site. Money is not good. Money is not evil. Money is. It's, also, not a reward for pushing society forward. It's the result of acquiring money. That money can be used for evil is a no brainer. And as such, one can (or could) use money to run political ads to the detriment of the country (or conversely, its betterment). But this is a problem of money (inherently) and not of Free Speech and should be addressed (if it is to be addressed, at all) on a monetary level and not by abridging Freedom of Speech.

Let's see if the other opinions (all concurring in the judgement) offer any other insights.

Justice Roberts Concurring Opinion

Opinion: Concuring
Written: Roberts
Joined: Alito

Brett: Disagrees
Pages: 14

To my reading, this advocates for a narrow decision, a technical decision. But I want the decision to be broad. Basically, I want Freedom of Speech across the board and only in extreme circumstances (and I mean extreme, say for Secret Government Documents) should it ever be curtailed. I could care less about Libel & Slander. All Libel & Slander boil down to is one person disagreeing with another person's opinion.

There is very little difference between saying:
I believe YOU are a child rapist.
YOU are a child rapist.
And any statement that can be watered down by placing an 'I believe' in front of it (as all statements can be and as I instructed you to mentally place in front of all statements on this page and on this site, if you'll remember, back at the top of the page) is hardly worthy of any court's time. Of course, all across the land, courts have decided this is worthy of their time, which perhaps (just perhaps), goes a long way towards explaining my animosity towards the (so called) Rule of Law.

Also, before I move on, I should reiterate that my major problem with Robert's Opinion is that he (in my opinion and as I remember it) wishes to narrow the decision, but I want a broad decision, because narrow decisions create special cases (call them loopholes), which undermine the public's confidence that The Rule of Law is being applied equally to all citizens across the board.

Finally (also, before moving on), I should note that this is where I decided to include page lengths for the opinions.

Scalia's Opinion

Opinion: Concurring
Written: Scalia
Joined: Alito, Thomas

Brett: Agrees
Pages: 9

I believe the gist of this opinion is that The First Amendment does not exclude 'artificial legal entities'; and so, corporations should be included.

And if in the preceding opinion I noted that I have no love for narrow points of law, here I will note that I have no love of long proofs or extended arguments (even though this is what I, myself, do time and time again). Plainly put, I want any legal position to be self-evident and self-supporting in as few words as possible.
Freedom of Speech! Everywhere! All the Time!
I mean, by all means, tell me why you are right. But I could care less about the history of your cause or position.

Stevens' Opinion

Opinion: Concurring
Written: Stevens
Joined: Ginsburg, Breyer, Sotomayor

Brett: Disagrees
Pages: 90

I believe, the previous Opinion by Scalia was written solely to disagree with this Opinion by Stevens.

This Opinion (in my ever so humble opinion, so I really am going to qualify the crap out of my statements despite a blanket qualification back at the beginning) goes into the technical aspects as to why Stevens believes this case was decided overly broad. But since I want all decision to be (overly) broad, I could care less about Stevens' arguments. In fact (to me), it comes off as a bit whinny.

Stevens' Opinion (as I read it), supports a differential Freedom of Speech (for students, prisoners, members of the armed forces, government workers, and so on and so forth), but unless some other law is being broken these differences in situation are meaningless... and can often be governed by a contract of employment.

As I remember it (keeping in mind that it has now been months since I read the Opinion, sloppy that), one of the arguments presented (and I do not remember who put forth this example nor the side they took when they did) was whether a prisoner has the right to writing equipment (pencils and paper and/or similar) so as to enable written correspondence with the outside world. I would say no... much like I do not believe the government has any obligation to provide a protester with a bullhorn (even if they may well not have the right to take said bullhorn away from the protester if the protester was prescient enough to bring a bullhorn with them to the aforementioned protest).

Further, Stevens (or if not Stevens, I shall blame Stevens) farcically proposed that corporations should be allowed to vote (as a reduction to absurdity counter-argument). But he (or whoever) is missing the point. Speech through corporations is analogous to speech through writing... and (I hope you will agree) no one would (seriously) propose that a book or legal document should be given the vote.

In other words, you don't have to provide a pencil or file incorporation papers on some random citizen's behalf. But if they come to the game with these tools, the government should not (in my ever so amazingly humble opinion) be allowed to take them away.

At this point, Stevens (insert random qualification here) started talking about the uneven playing field and disproportionate amount of power certain individuals and corporate entities have. Oh, I can (and do) agree with him that this is a shame. But this should be covered in a separate law having to do with limiting the accumulation of Money and/or Power and not limiting Freedom of Speech.

Yeah, so that's about the level of tailoring (narrow versus broad) that I want. I want a decision about Freedom of Speech to limit its analysis to Freedom of Speech. I am OK with another law limiting power. After all, there is no Constitutional Right to be a Billionaire.

Um, so this is where I skipped the next 57 Pages of the Opinion. My loss, I am sure.

In fact, this rather worthless opinion is one of the reasons why I stalled out on this project for the next two months... only coming back to this case because I wanted to get this half-started rant off my desk.

{I should note, that a year or two later as I reread this article (and upon reflection), I disagree with denying (that is to say, not supplying) prisoners with some form of writing equipment. I can hardly think without paper (or a computer screen) and I can't comprehend a Court Battle being fair if one side is unable to take notes.}

Thomas's Opinion

Opinion: Concurring
Written: Thomas
Joined: None

Brett: Agrees
Pages: 5

Thomas concurs in all but Part IV (which I will just list as concurring -- as in, concurring in the whole -- for data entry purposes).

Ah, I think he may go further than the Court's Decision (so, this note was written in real time).

Let's see.

I think he does go further. And I think I will agree with him. Yes, I do agree with him. I favour unlimited anonymous speech. Of course, what I find more annoying/alarming is the notion of unpunished wrongness (using harassment and intimidation as a political tool). But that really is a different discussion, altogether.

The Final Word

I read Citizens United, because it has been often referenced (in my world, at least) as the where and when The Supreme Court gave Personhood to Corporations. But I do not read Citizens United that way. I believe that a (partially) dissenting opinion (Stevens', if I am remembering correctly) states that the Court's Opinion grants Personhood to Corporations. But I find the Court's Opinion making no such claim.

As to future data collections, I think I have my format. {I didn't. But much of the ground work was in place.} So it is finally time (or nearly so, as I did take another two months off from this project, at this point) to proceed with my reading of The Supreme Court Opinions for the 2018 Term.

Judging the Judges

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Corporations Are Not Citizens.

But Citizens have the right to express their Freedom of Speech through Corporations.

© copyright 2018-19 Brett Paufler