BrianGarst.com

Liberals responded to the Citizens United decision – which upheld the basic principle of free speech even when it is most needed: during elections – with unhinged rage. As I explained at the time, they reacted so because they believe that people are fundamentally stupid and cannot be allowed to hear multiple points of view, for fear that they may stray from the liberal orthodoxy (naturally, I think the people’s tendency to reject liberalism when presented with the facts proves that the public is largely intelligent).

But there’s at least one liberal who isn’t completely dishonest. Touted as a potential Supreme Court nominee (I guarantee she’s off the list now), Professor Kathleen Sullivan analyzed the decision and its subsequent responses, in a paper published by the Harvard Law Review, in light of two different visions of free speech. One side, she described, is the egalitarian view which allows government subsidies for marginalized speech and restrictions for corporate or well funded speech.  This is the left-wing view. The other perspective is speech as a check on government and a necessary component of political liberty. This is the more conservative (and I’ll say, accurate) view.

She goes on to review the legal history of both views, which is interesting in its own right. But of political interest to the current political debate (I use the term debate very loosely, given the hysterical and overwrought nature of liberal criticisms to Citizens United) is her conclusion:

Citizens United has been unjustly maligned as radically departing from settled free speech tradition. In fact, the clashing opinions in the case simply illustrate that free speech tradition has different strands. The libertarian strand from which the majority draws support empha-sizes that freedom of speech is a negative command that protects a system of speech, not individual speakers, and thus invalidates government interference with the background system of expression no matter whether a speaker is individual or collective, for-profit or nonprofit, powerful or marginal. The egalitarian strand on which the dissent relies, in contrast, views speech rights as belonging to individual speakers and speech restrictions as subject to a one-way ratchet: impermissible when they create or entrench the subordination of political or cultural minorities, but permissible when aimed at redistributing speaking power to reduce some speakers’ disproportionate influence. In many First Amendment challenges, the two traditions converge upon the same outcome. For example, Justices favoring either tradition will typically vote to protect marginal or dissident speakers from regulation at the hands of expressive majorities. The traditions diverge, however, where government seeks to limit speech to reduce the influence of speakers deemed too dominant in public discourse, as in the segregated-fund requirements struck down in Citizens United.

…The Court’s pronounced willingness to uphold compelled disclosure requirements provides the best guide to future policymaking in the area of campaign finance. Coupled with the libertarian approach em-braced by the majority, it also suggests an emerging coherent vision of free speech that may characterize future Roberts Court decisions. In this vision, the more speech the better, with its distribution and assessment nearly always best left to the citizenry rather than the government. For a generation raised on YouTube and other channels of instantaneous access to information made possible by the internet, this may prove to be a congenial vision.

So this was no grand departure from free speech jurisprudence, nor any kind of judicial activism as popularly understood. Now that at least one well respected liberal academic has said so,can the left quit it with the end-of-democracy demagoguery? I’m not getting my hopes up.

Citizens United v. FEC free speech