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Deflating the Myths Behind Citizens United Part 1 First Truths of the First Amendment

In my next set of blog entries, I’ll be discussing the fallout of the Supreme Court’s opinion in Citizens United. A national confusion has arisen over the meaning of the case and its role, positive or negative, in our democratic process. Amidst many shouting voices, some historic truths have been overlooked.

It is important to recall that our celebrated American tradition of open debate was a radical departure from history in its own right. As detailed in the Wyoming Liberty Group’s briefings in the case, and relied upon by the Court, English licensing laws were commonplace to ensure that only speech favorable of the Crown would abound. The American experiment in self-government in that sense was radical — trusting average citizens to speak, favorably, poorly, or caustically about all sorts of issues, including the performance of public officials.

Since our experiment in embracing wide-open, robust, and uncontrolled debate, the idea of this sacred trust has been seen as folly by some would be censors. This mistrust of the constitutional values standing behind the First Amendment has led our nation to sometimes devalue its worth. But the framers of our American constitutional tradition embraced a different, and more absolute, truth — that robust discussion of public officeholders and affairs is the surest protection against tyranny. The Wyoming Liberty Group stands by this truth today.

A corollary of the right to speak is the right of association. Association permits everyday citizens to come together and amplify their own speech, making it more effective. Think NRA, Sierra Club, or National Right to Life. Were it so that the First Amendment protected just the right of individual speech, and never the speech of people gathered together, only the most wealthy and powerful among us would have any effective voice.

Let’s get back to the Citizens United Challenge. Here, the Supreme Court examined what appeared to be an easy question. Did people retain the freedom to: (1) gather together, (2) create a documentary film critical of Hillary Clinton, and (3) distribute and advertise the movie in question in the days leading up to elections? At the time of the challenge, the clearest answer under federal law and thousands of pages of interpretative Federal Election Commission rules was, oddly enough, “no.”

The resounding success of Citizens United is found in its simple return to the basic truth of the First Amendment. No longer would the Court permit citizens gathered together to be criminalized and penalized because they spoke critically of public officials. No longer would the Court entrust a federal bureaucracy with the power to decide which speech was appropriate for us to hear and which was not. Freedom would win the day, but with a return of the protection of free speech came the feverish and frightened appeal of naysayers. Those who naysay Citizens United focus not on these truths, but opt instead to fixate on the looming fear of imagined hobgoblins when you protect freedom.

My next three blog posts will focus on the fears and confusion popularly discussed about what Citizens United means for our democratic process. For now, the surest implications of the Court’s holding translate into more speech, heightened competition, and increased accountability for public officials. That all boils down to another simple truth: Citizens United is an opinion to celebrate, not castigate.

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Sunday, 22 October 2017
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