Three Giant Steps Backward for the First Amendment

Abstract

Three of the First Amendment cases that the Supreme Court decided during its 2009 term – Holder v. Humanitarian Law Project, United States v. Stevens, and Citizens United v. F.E.C. – constitute setbacks for the principle of freedom of speech. In the latter two cases the Supreme Court ruled that the laws in question violate the First Amendment, creating the impression that Freedom of Speech is on the move. However, careful examination of the Court’s opinions reveals that the movement is retrograde.

The decisions of the Supreme Court in these cases all take us back – back to before 1937 when the Supreme Court recognized the right of the individual to act nonviolently in concert with disfavored organizations, before 1925 when Holmes and Brandeis introduced realist analysis into First Amendment law, and before 1907 when this country agreed to prohibit corporations from contributing money to political candidates. The Supreme Court seeks to return to the “good old days” when political activism (no matter how peaceful) could be prosecuted, longstanding traditions (no matter how unjust) were honored, and large corporations (no matter how much they may drown out the voices of ordinary citizens) were permitted to dominate the political process and purchase influence with public officials.

Keywords: Holder v. Humanitarian Law Project, United States v. Stevens, Citizens United v. F.E.C., Material Support for Terrorist Organizations, Depictions of Animal Cruelty, Corporate Political Speech, First Amendment, Freedom of Speech, Freedom of Expression

JEL Classification: K19