A Dangerous Dissent on Citizens United

The dissenting opinion in Citizens United, written by Justice Stevens and joined by the court's other three liberals (including Justice Sotomayor), is remarkable for a number of reasons. Justice Stevens attempts to base his opinion in originalism, which is quite welcome for the mere fact that it better exposes the sometimes-camouflaged antipathy towards freedom held by liberal, big-government types.

Citing Trustees of Dartmouth College v. Woodward (decided in 1819) to support his thesis that the First Amendment does not extend fully to corporations, except for the "institutional press" as he so names it, Justice Stevens writes,

"The Founders thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare" since "the legitimacy of every corporate activity was thought to rest entirely in a concession of the sovereign."

That contradicts the fact the Dartmouth College was established to fulfill a mission protected by the First Amendment (the teaching of religion), and Trustees of Dartmouth College said that no legislature in America has the authority to deprive a chartered entity of "vested rights."

Trustees of Dartmouth College was decided long before the 14th Amendment was ratified, which courts in the 20th century claimed as the basis to apply the Bill of Rights to state actions. But even in 1819, due process was considered beyond the authority of states to violate, and courts recognized that legislative power was limited. The decision also acknowledges the fact that corporations may be established with express or implied purposes that include the free exercise of rights.

The common law recognized that the sovereign does have the authority to regulate the formation of corporations and imposes certain conditions on their existence and operations. Trustees of Dartmouth College discusses the clear distinctions between "private" corporations (established by individuals) and "public" or "civic" corporations such as cities, townships, and those established by the government.

Justice Stevens' conclusion that the sovereign may interfere with First Amendment or other rights of privately founded and financed corporations because they are "artificial" creations is not only absent in the Trustees of Dartmouth College decision, but it is contradictory to it.

Founder and our fourth Chief Justice John Marshall wrote:

A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being a creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; properties, by which a perpetual succession of many persons are considered the same, and may act as a single individual.

In other words, Justice Marshall's written opinion supports the principle that corporations may act and speak as any individual may, and the opinion notes that legislatures lack the power to take away "vested" rights. The position that follows from Justice Stevens' must be that First Amendment rights are not vested. That is as dangerous a judicial notion as any I know.

Perhaps an even more radical and equally dangerous statement in the liberals' dissent is that "every corporate activity ... rest[s] entirely in a concession of the sovereign," and therefore could be "comprehensively regulated in the service of the public welfare." As I mentioned earlier, the opinion in Trustees of Dartmouth College makes the clear distinction between private corporations versus public (or civic) corporations such as cities and townships. Justice Stevens' language is pulled from the description of public corporations found in Trustees of Dartmouth College.

I do not know whether Justice Stevens' intent in failing to acknowledge this important distinction between private and public corporations was to influence more than just restrictions on First Amendment rights. The Marshall court makes clear, however, that government may not intrude on private corporations the way it may on public ones, and it must respect the private nature of private corporations even when their purposes may be for the public benefit. That may be just horribly incompetent lawyering on Justice Stevens' part (although the other three liberal justices signed onto his dissenting opinion).

I can, however, guarantee this: Left-wing and government lawyers will glom onto that language to attempt to justify the most invasive intrusions into corporations -- including nonprofits -- and their First Amendment, property, and other rights. That is why it is important to expose Justice Stevens' error now, before it becomes incorporated into our jurisprudence by mistake or design.

Justice Stevens also writes about the "unique role played by the institutional press in sustaining the public debate." Justice Scalia's concurrence with the majority opinion helps expose the fallacy of Justice Stevens' First Amendment favoritism and bias. In footnote 6 to his opinion, Justice Scalia writes, "It is passing strange to interpret the phrase 'the freedom of speech, or of the press' to mean, not everyone's right to speak or publish, but rather everyone's right to speak or the institutional press's right to publish."

"Liberty of the press," he continues (and I omit the cite), "in civil policy, is the free right of publishing books, pamphlets, or papers without previous restraint; or the unrestrained right which every citizen enjoys of publishing his thoughts and opinions, subject only to punishment for publishing what is pernicious to morals or to the peace of the state."

Justice Scalia notes correctly that the freedom of the press -- i.e., the freedom to publish one's thoughts -- rests with each individual. It is not a right reserved to some professional society. It strikes me as of no small inconsequence that the corporate media are among the biggest whiners about Citizens United. They are rapidly losing the artificial monopoly, created in part by Congress and in part by the courts, but not by the First Amendment, on the protections afforded under the freedom of the press.

Justice Stevens, in his footnote 16, sums it up best: "We do not share [the majority's] view of the First Amendment." That may be the most accurate statement in his dissenting opinion.

(Excerpted from a speech to be delivered at the January 29-31 Leadership Tea Party Class, Dallas, Texas.)