Thank The Courts For Protecting Our Free Speech

The wisdom of enforcing the First Amendment against government efforts to squelch speech—even corporate speech—was made real to supporters of same-sex marriage last week.  T-Mobile, the cell phone powerhouse, announced it was contributing $25,000 to the campaign supporting Initiative 74, the Washington State ballot measure that would legalize same-sex marriage in the state.  In doing so, T-Mobile joined Amazon.com, Google, Microsoft, Nike and Starbucks in deciding to participate in the debate on this controversial political issue.

If you like what T-Mobile has done, you can thank the U.S. Supreme Court—but not the ruling in Citizens United v. FEC, which freed corporations and unions to spend money supporting or opposing candidates.  Rather, T-Mobile’s contribution was made possible by First National Bank of Boston v. Bellotti, a 34-year-old decision recognizing that the government cannot, under the First Amendment, prohibit corporations from contributing to ballot initiative campaigns.  Without that ruling, states would be free to censor companies like T-Mobile and forbid them from informing voters on the most important issues of the day.

What the Supreme Court did in Bellotti and in Citizens United is often wrongly labeled “judicial activism.”  Although the meaning of that epithet varies, it usually, and lazily, refers to a court striking down a law put in place by a democratically-elected legislature.  But courts have an obligation to strike down democratically-enacted laws when they violate the Constitution.   That requires courts to review the facts, the law, and the Constitution without deferring to the government—the very entity the Constitution is supposed to protect us from.

A better term for what the Supreme Court did for free speech in Bellotti is “judicial engagement.”  Judicial engagement on free speech and elections has helped preserve the robust debate we have today.  In another Supreme Court ruling from over 30 years ago—Buckley v. Valeo—the court struck down limits on the amount of money that political campaigns could spend promoting their views.  And, thanks to the 2010 Citizens United decision, both for-profit and non-profit corporations can now spend money to encourage people to vote for or against candidates themselves, speech that was previously often illegal.

All of these rulings struck down democratically-enacted laws, but all of them did so to vindicate the First Amendment, resulting in more speech and a more robust public debate.

But it might not always be so.  Many of the Supreme Court’s recent campaign-finance rulings have been decided by 5-4 votes and could easily have gone the other way.

Equally troubling, many proponents of so-called campaign finance “reform” are pushing for constitutional amendments that would strip all corporations—large or small—of their ability to participate in public debate.  These “reformers” argue that corporate money corrupts the political process by “buying” votes.  But this argument suggests that voters are incapable of deciding for themselves whether same-sex marriage should be legal as long as “moneyed interests” such as T-Mobile are permitted to try to persuade them.  Nothing could be more insulting to what the Supreme Court has aptly described as America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide–open.”

Whatever position you take on Initiative 74, or on politics in general, all of us benefit from the freedom to hear a variety of voices—including corporate voices—on the most important issues of the day.  Protecting that freedom means insisting on judges who engage with the Constitution and are not afraid to strike down laws whenever they restrict political speech.

Anthony Sanders is an attorney at the Institute for Justice, which litigates campaign-finance cases nationwide.

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