Justice Kennedy: Law that banned 'Hillary' could have banned newspapers and books

Steve Korris Jan. 27, 2010, 10:00am

Hillary Clinton

WASHINGTON – Politicians who tried to discourage distribution of the movie, "Mr. Smith Goes to Washington," could have simply banned it under campaign finance laws the U.S. Supreme Court rejected on Jan. 21, according to Justice Anthony Kennedy.

"The censorship we now confront is vast in its reach," Kennedy wrote for a majority that granted constitutional protection to "Hillary," a movie about Hillary Clinton.

"When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought," Kennedy wrote.

The decision dismantled a structure built from 568 pages of regulations, 1,287 pages of explanations, and 1,771 advisory opinions.

Kennedy wrote that the regulations functioned as prior restraint.

He compared them to English licensing laws and practices that the First Amendment was drawn to prohibit.

"A speaker's ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first commence a protracted lawsuit," he wrote.

The law that banned "Hillary" could have banned newspapers and books, he wrote.

It seemed to ban posts about elections on websites that corporations created, he wrote.

He wrote that it could have banned "Mr. Smith Goes to Washington" because that movie, like "Hillary," was funded by a corporation critical of Congress.

"Mr. Smith Goes to Washington may be fiction and caricature; but fiction and caricature can be a powerful force," he wrote.

"Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our government to make this political speech a crime," he wrote.

Chief Justice John Roberts joined Kennedy, along with Justices Antonin Scalia, Joseph Alito and Clarence Thomas.

Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor dissented.

Stevens linked corporations to corruption with enough animosity to counter his own argument that corporations aren't persons.

"While it is true that we have not always spoken about corruption in a clear on consistent voice, the approach taken by the majority cannot be right," he wrote.

"Corruption operates along a spectrum, and the majority's apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics," he wrote.

"It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires," he wrote.

The group that produced "Hillary," Citizens United, intended to
knock Clinton out of the race for the Democratic presidential nomination in 2008.

Citizens United asked the Federal Election Commission for permission to release the movie through video on demand, and the commission denied it.

At the Supreme Court, Citizens United didn't mount a challenge to the constitutionality of the regulations because a precedent from the 1980s appeared to rule it out.

That decision, Austin v. Michigan Chamber of Commerce, deplored the "corrosive and distorting effects of immense aggregations of wealth."

Citizens United advanced narrow arguments that "Hillary" didn't fit the definition of an electioneering communication and that video on demand decreases the risk of distortion.

Citizens United argued that most of its money came from
individuals, not corporations.

After oral argument, the Justices asked both sides for briefs on

After further oral argument, the Justices overruled Austin.

"Any other course would prolong the substantial, nationwide chilling effect" of the law, Kennedy wrote.

"Its purpose and effect are to silence entities whose voices the government deems to be suspect," he wrote.

"Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content," he wrote.

"Government officials pore over each word of a text to see if, in their judgment, it accords with the 11-point test they have promulgated," he wrote.

"This is an unprecedented governmental intervention into the realm of speech," he wrote.

He wrote that an exemption in the law for media corporations can't be squared with the First Amendment.

He wrote that independent expenditures by corporations do not give rise to corruption or the appearance of corruption.

"References to massive corporate treasuries should not mask the real operation of this law," he wrote.

He wrote that 5.8 million for profit corporations filed tax returns in 2006.

"Most of these are small corporations without large amounts of wealth," he wrote.

Three fourths have less than $1 million in annual gross receipts, he wrote.

The four dissenters couldn't distinguish small from large or clean from dirty.

"The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process," Stevens wrote.

"Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and
national races," he wrote.

He wrote that campaign laws "target a class of communications that is especially likely to corrupt the political process, that is at least one degree removed from the views of individual citizens, and that may not even reflect the views of those who pay for it."

"Corporations, as a class, tend to be more attuned to the complexities of the legislative process and more directly affected by tax and appropriation measures that receive little public
scrutiny," he wrote.

They have "vastly more money with which to try to buy access and votes," he wrote.

He imagined a corporate monopoly in campaign commercials.

"When citizens turn on their televisions and radios before an election and hear only corporate electioneering, they may lose faith in their capacity, as citizens, to influence public policy," he wrote.

"A government captured by corporate interests, they may come to believe, will be neither responsive to their needs nor willing to give their views a fair hearing," he wrote.

He argued that corporations can speak through political action committees.

Kennedy answered that, "PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations."

"This might explain why fewer than 2,000 of the millions of corporations in this country have PACs," he wrote.

A corporation might not have time to start a PAC to make its views known, he wrote.

In a concurring opinion, Scalia traced corporate speech to old English common law.

Corporations and voluntary associations actively petitioned their government and expressed their views in pamphlets and newspapers, he wrote.

"An antislavery Quaker corporation petitioned the First Congress, distributed pamphlets, and communicated through the press in 1790," he wrote.

Roberts also concurred, to applaud the departure from the Austin precedent.

He wrote that the doctrine of "stare decisis," meaning that an earlier decision stands, is not an inexorable command.

"If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the government could wiretap ordinary criminal
suspects without first obtaining warrants," he wrote.

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