Academic

Oral Argument in Citizens United

By Calvin Massey

Scotusblog has a summary and analysis of today's oral argument in Citizens United, which suggests that a majority of the Court is leaning strongly towards overturning Austin v. Michigan Chamber of Commerce and that portion of McConnell v. FEC which upheld the validity of section 203 of the BCRA (usually referred to as McCain-Feingold).  Section 203 forbids unions and corporations from spending to influence an election in the critical pre-election period.  Austin held that corporations had no free expression right to spend their own money to influence elections.  The tenor of the oral argument is good news to those of us who value all of the free speech guarantee and think that corporations should be as free as anyone else to speak.  Indeed, as long ago as Carolene Products, when the Court justified its deference to legislative judgments about economic regulation, it noted that this deference was justified because corporations and other economic actors remained free to influence the composition of those legislatures and their policies.  That premise underlying judicial deference to legislative judgments about economic regulations was eliminated by Austin.  Moreover, Austin injected into free speech law the noxious idea that some speakers can be muzzled because there is inadequate proof that the speaker's ability to speak has been created by public support for the speaker's views.  Let's hope Austin  is firmly buried.  

Full post as published by The Faculty Lounge on September 09, 2009 (boomark / email).