In the Business of Free Speech: The Roberts Court and Citizens United

Abstract

The Supreme Court’s Citizens United decision is perhaps the Roberts Court’s most well-known and controversial ruling. It has been criticized and, indeed, reviled, by the President of the United States on down. It is also cited as Exhibit A for the proposition that the Roberts Court is a relentlessly pro-business institution in its key decisions. In this chapter of a book entitled Business and the Roberts Court, I contend that both the criticism of the decision and of the Court is wrong. In my view, Citizens United is a decision which embodied and applied classic First Amendment principles. In doing so, the Court freed labor unions, non-profit organizations and yes, business corporations, from unwarranted restraints on their ability to speak on behalf of their members, supporters, shareholders and adherents. In protecting free speech and political freedom, the landmark decision was part of a larger Roberts Court pattern of deregulatory rulings, not just in the campaign finance area, but in a number of First Amendment contexts far removed from that area. Indeed, many of the Court’s rulings manifest a strongly libertarian caste to them with a pervading theme that where free speech is concerned, it is the people, not the government, who get to decide what form and content that speech will take. In the end, the Citizens United decision, embodying these principles, reflects the work not of a pro-business Court, but of a pro-free speech Court.

Keywords: United States Supreme Court, Robert’s Court, First Amendment, Free Speech, Campaign Finance