Supreme Court Decision on Free Speech: January 21, 2010

Posted by courage On January - 24 - 2010


Writing for the majority, parts of Justice Anthony Kennedy’s main opinion:

When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.  This is unlawful.  The First Amendment confirms the freedom to think for ourselves.


Modern day movies, television comedies, or skits on might portray public officials or public policies in unflattering ways.  Yet if a covered transmission during the blackout period creates the background for candidate endorsement or opposition, a felony occurs solely because a corporation, other than an exempt media corporation, has made the “purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value” in order to engage in political speech.  Speech would be suppressed in the realm where its necessity is the most evident: in the public dialogue preceding a real election.  Governments are often hostile to speech, but under our law and tradition it seems stranger than fiction for our Government to make this political speech a crime.  Yet this is the statute’s purpose and design.

The Government urges us in this case to uphold a direct prohibition on political speech.  It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions find useful in expressing theirs views on matters of public concern.  Its theory, if accepted would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations- as the major ones are.  First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.

The Court rejects that theory, and I join its opinion in full.  The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.


Moreover, if speech can be prohibited because, in the view of the Government, it leads to “moral decay” or does not serve “public ends,” then there is no limit to the Government’s censorship power.


All the provisions of the Bill of Rights set forth the rights of individual person’s to speak includes the right to speak in association with other individual persons. Surely the dissent does not believe that speech by the Republican Party or Democratic Party can be censored because it is not the speech of “an individual American.”  It is the speech of many individual Americans, who have associated in a common cause, giving leadership of the party the right to speak on their behalf.  The association of individuals in a business corporation is no different- or at least cannot be denied the right to speak on the simplistic ground that it is not “an individual American.”

Dissenters on the decision were Justices Stevens, Ginsburg, Breyer and Sotomayor.

You can read the entire decision here.

Comments are closed.