Craig Parshall, General Counsel


Free Speech Blockbuster

January 27, 2010

I have previously written about the free speech significance of the case of Citizens United vs. Federal Election Committee that has been pending before the Supreme Court. But the breadth of the High Court’s decision last Thursday surprised even me. The appeal revolved around a film that was critical of then-Presidential candidate Hillary Clinton, which had been produced by a non-profit organization. The group wanted to air it on video-on-demand just before the primaries, but a federal judge ruled that provisions of the Bipartisan Campaign Reform Act (BCRA) applicable to corporations would bar it. The Supreme Court reversed the lower court and struck down that part of the BCRA, noting that it had created a “vast” system of “censorship,” and ruling that the First Amendment prohibits the government from banning some speech but not others based merely on the corporate organizational form of the speaker. At the same time, the Court reversed a prior Supreme Court precedent that had suggested that such distinctions could be justified because of the dangers of corporate “wealth” creating a “distortion” in the political process.

What is truly remarkable, though, about last week’s decision, authored by Justice Kennedy, are the strong hints from the Court’s majority about how it might rule on other media-related issues. For instance, regarding the changing platforms of media, the Court indicated that it will resist the temptation to create exceptions to the First Amendment based on the ever-fluctuating nature of media technology. There is also an implicit clue (though carefully couched) regarding the majority’s attitude about potential federalized regulation of the Internet. (Breaking news on that issue: yesterday FCC Commissioner Meredith Attwell Baker wisely urged her FCC colleagues to hold off on its network neutrality proceeding until the U.S. Court of Appeals decides the Comcast Internet case – a point I had also made two weeks ago in the NRB filing with the FCC on that proposal.) But perhaps most important of all is the Court’s language regarding the free speech rights of media organizations, both for-profit and non-profit. The Justices noted that the same logic that would uphold the free-speech infringing BCRA could also be used to justify banning the expressive rights of media groups – a result that the Court described as “dangerous and unacceptable.” Bottom-line: this is a Supreme Court decision packed with free speech concepts that will be touted by us media minded folks for years to come.