A Right But Wrong Place: Righting and Rewriting Citizens United

Abstract

The majority in Citizens United would create corporate free speech rights in the wrong place. Although corporations should have certain derivative procedural due process and property rights, granting them free speech rights should not survive Constitutional scrutiny. Instead, free speech rights (which also predate the Constitution) should lie solely with natural persons. This means that natural persons should have free speech rights to hear corporate speech but corporations should have no free speech rights themselves. Putting free speech rights in the right place (i.e., with natural persons) clarifies the task involved in reconciling such rights with other rights of the same natural persons to a functioning representative government (which latter rights also predate the Constitution). One must harmonize natural persons' free speech and functional representative government rights in a manner which harms neither of these rights and, if possible, increases the benefits of one or both. Disclaimer requirements work by increasing freedom of speech and PAC limitations work without diminishing freedom of speech. Equal time and variable funding restrictions work in theory but prove undesirable in practice. Finally, the so-called “problem” of corporate media speech is a canard resulting from the failure to distinguish between speech as speech and speech as property.

Keywords: Citizens United, Free Speech, First Amendment, Media Corporations, PACs, Political Action Committees, Campaign Finance, Elections, Constitutional Law