Justice Sotomayor, Judicial Minimalism And Citizens United

By Big Tent Democrat, Section Supreme Court
Posted on Wed Sep 09, 2009 at 01:59:56 PM EST
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Associate Justice Sonia Sotomayor cleverly asks whether conservatives really are judicial minimalists (recording of the argument in Citizens United here, transcript here (pdf):

Theodore B. Olson, a lawyer for Citizens United, argued for a broad ruling that would reverse two precedents allowing the government to restrict the campaign speech of all sorts of corporations notwithstanding the First Amendment. That prompted a question from Justice Sonia Sotomayor, her first as a Supreme Court justice. “Are you giving up on your earlier arguments that there are statutory interpretations that would avoid the constitutional question?” she asked Mr. Olson.

(Emphasis supplied.) A basic tenet of Supreme Court jurisprudence is constitutional avoidance (link to Conservapedia.) Do not decide the constitutional question unless you have to. Those opposed to "judicial activism," as conservatives purport to be, would want Citizens United decided on narrow statutory grounds, rather than on sweeping constitutional grounds. But the extreme right wing Roberts Gang of 5 plow forth with their judicially activist right wing agenda. And so would extreme Republicans like Mitch McConnell, who hired Floyd Abrams to argue for judicial activism on his behalf:

Arguing on behalf of Senator Mitch McConnell of Kentucky, the Republican leader, Floyd Abrams reminded the court that it could have decided New York Times v. Sullivan, the 1964 decision that revolutionized the law of libel, on quite narrow grounds. When First Amendment rights are in danger, Mr. Abrams said, bold action is sometimes required.

(Emphasis supplied.) Bold action by the courts in support of corporations is something McConnell has always favored. After all, Republicans, despite their pronouncements of fealty to "judicial restraint," have forwarded an activist court for decades now.

Good on Justice Sotomayor for calling them out with her very first question.

Speaking for me only

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Justice Sotomayor, Judicial Minimalism And Citizens United | 32 comments (32 topical)

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Well, bold actions in favor of corporations (5.00 / 1) (#1)
by Maryb2004 on Wed Sep 09, 2009 at 02:13:20 PM EST

means they are in favor of the little guy. After all:

Much of the extraordinary 90-minute argument was taken up by discussions of whether the speech of corporations may be treated differently than that of individuals. Mr. Olson and Justice Antonin Scalia noted that most corporations are quite small, with limited assets and often owned by a single shareholder.

Yes, Justice Scalia, protector of the little people. :)

From scotuswiki (5.00 / 1) (#4)
by Big Tent Democrat on Wed Sep 09, 2009 at 02:18:20 PM EST

"Moreover, the brief goes further, urging the Court to strike down a 1990 decision -- Austin v. Michigan State Chamber of Commerce -- that upheld a compelling interest for the government in regulating expression by corporations who may be very wealthy. That decision, it contended, "is flatly at odds with the well-established principle that First Amendment protection does not depend upon the identity of the speaker.""

My emphasis. In a sense, this is flatly wrong, in that commercial speech is made by commercial actors, and is treated differently.

It is absurd to imagine a for profit corporation whose speech is not commercial in its nature.

I wonder if that argument was made.


Campaign Speech Is Not Commercial Speech (none / 0) (#18)
by Michael Masinter on Wed Sep 09, 2009 at 03:14:02 PM EST

Commercial speech is speech that merely proposes a commercial transaction. Campaign / issue speech, whether by a candidate, an individual, a nonprofit corporation, or a publicly traded for profit corporation is not commercial speech; no Justice on the Court would suggest otherwise. The four Justices who hope to preserve Austin have characterized corporate campaign and issue speech as commercial speech.


Whoops (none / 0) (#19)
by Michael Masinter on Wed Sep 09, 2009 at 03:15:30 PM EST

The last sentence should read: The four Justices who hope to preserve Austin have never characterized corporate campaign and issue speech as commercial speech.


: They sort of do at the end of the argument (none / 0) (#26)
by Big Tent Democrat on Wed Sep 09, 2009 at 03:47:02 PM EST

I did not know corporations ran for office? (none / 0) (#25)
by Big Tent Democrat on Wed Sep 09, 2009 at 03:46:34 PM EST

Anyway, what yuou meant to say was political speech isnot commerical speech. I say, that is my point.

Do corporations have political views unconnected to their business? Isn't a corporations sole purpose to serve its shareholders' pecuniary interests? And therefore isn't its "political" speech really just a type of commercial speech?


The Real Question is Whether Corporation = Person (none / 0) (#27)
by Michael Masinter on Wed Sep 09, 2009 at 05:08:44 PM EST

Unfortunately, SCOTUS decided that one a long time ago; corporations have the same rights as the rest of us under the Bill of Rights. The reason why the Court may overrule Austin is that its treatment of corporate electioneering speech in Austin is at war with its treatment of corporate speech in every other context. Once you accept (and I don't but it's too late for the argument) that a corporation is a person for purposes of constitutional rights, it's hard to offer a principled rationale for why corporations have the same protection as individuals in every respect save electioneering speech.


That's not the real question (none / 0) (#28)
by Big Tent Democrat on Wed Sep 09, 2009 at 05:37:14 PM EST

Corporations are treated differently in many ways.

you want that to be the real question, and it seems so does the Gang of 5. But for 100 years, that was NOT the real question.

It took this group of Right Wing radical extremist judicial activists to make that the "real question."


: Corporations as speakers (none / 0) (#31)
by Michael Masinter on Thu Sep 10, 2009 at 12:09:39 PM EST

We treat corporations and individuals differently in many ways, but we have no constitutional history of treating corporate and individual speech differently except in the specific context of electioneering speech. No other part of free speech law asks whether the speaker is an individual or a corporation; no other part of free speech law applies differentt standards (strict scrutiny or intermediate scrutiny) to speech restrictions based on whether the restriction affects an individual or a corporation. The reason so many groups nominally thought of as progressive (eg the ACLU) line up with Citizens United is precisely because Citizens United restricts otherwise protected speech based on the status of the speaker, not on a content neutral basis.

See my other comment (none / 0) (#3)
by Big Tent Democrat on Wed Sep 09, 2009 at 02:13:54 PM EST

in this thread.


One actual interesting argument (5.00 / 2) (#2)
by Big Tent Democrat on Wed Sep 09, 2009 at 02:13:31 PM EST

is the treatment of profit vs. not for profit corporations.

Just reading the reviews of the oral argument, I was struck by CJ Roberts' dismissal of the notion, given the Court's long history of treating commercial and non-commercial speech differently.

I have not kept up with this case, but I do want to read and see if the briefs not this dissonance.

I haven't followed this case (5.00 / 1) (#5)
by Maryb2004 on Wed Sep 09, 2009 at 02:21:52 PM EST

so I don't know the arguments.

It's tempting to assume they should be treated differently but in reality I don't know that I would treat them any differently. The fact that the ENTITY isn't going to make a financial profit doesn't mean it can't be spreading a message that would benefit commercial enterprises. There's no reason commercial enterprises can't be members of a not-for-profit. And benefit indirectly from their work.

And for your other commenters I will point out that not-for-profit does not automatically equal charitable, educational or the statuses required for 501(c)(3) tax exempt treatment.


Certainly (5.00 / 1) (#6)
by Big Tent Democrat on Wed Sep 09, 2009 at 02:26:45 PM EST

a logical regime of regulation could be constructed that makes sense.


: skimming the solicitor general's brief (none / 0) (#16)
by Maryb2004 on Wed Sep 09, 2009 at 03:07:15 PM EST

and the oral arguments it seems that the MCFL exceptions already get us exactly where we need to be as far as distinctions between non-profits go. This isn't my area of law though.
Although Justice Roberts questioning seems to indicate that he's either going to broadly expand the MCFL exceptions or, more likely, overrule Austin.

One interesting historical note (5.00 / 1) (#8)
by andgarden on Wed Sep 09, 2009 at 02:42:00 PM EST

Ted Olson argued FEC v. McConnell on the other side as Solicitor General.

Here's a question I have: if this case comes out as predicted, what impact will there be on law against false advertising? (I haven't taken a 1st amendment law class, so I don't know the cases).

: Well (5.00 / 1) (#11)
by Big Tent Democrat on Wed Sep 09, 2009 at 02:45:32 PM EST

the commercial speech/non-commercial speech differences in First Amendment jurisprudence become interesting imo but strictly speaking, this would not impact the Lanham Act or state unfair competition laws.

: Erm, McConnell v. FEC (none / 0) (#9)
by andgarden on Wed Sep 09, 2009 at 02:42:40 PM EST

Well said. (5.00 / 0) (#32)
by Hannah McCrea on Thu Sep 10, 2009 at 02:54:59 PM EST

Not only were they more inclined toward judicial minimalism than conservatives, but the liberal justices were also doing a better job invoking constitutional text and history. It's high time we do away with the myth that the Constitution, as a matter of practice, upholds the conservative view.

pure ad hominem snark (2.00 / 0) (#29)
by diogenes on Wed Sep 09, 2009 at 08:11:18 PM EST

"When First Amendment rights are in danger, Mr. Abrams said, bold action is sometimes required.

(Emphasis supplied.) Bold action by the courts in support of corporations is something McConnell has always favored"

I guess you can't win on the facts.

I am curious (none / 0) (#7)
by Steve M on Wed Sep 09, 2009 at 02:38:23 PM EST

how Ted Olson answered that one.

The transcript... (none / 0) (#10)
by Tony on Wed Sep 09, 2009 at 02:44:43 PM EST

is here(.pdf).

That exchange begins on page 24.


: Thanks (none / 0) (#12)
by Big Tent Democrat on Wed Sep 09, 2009 at 02:47:53 PM EST

: Thanks (none / 0) (#13)
by andgarden on Wed Sep 09, 2009 at 02:51:32 PM EST

Ginsburg starts off with a fairly populist question. Scalia's first is more interesting IMO.

One point (none / 0) (#14)
by andgarden on Wed Sep 09, 2009 at 02:57:55 PM EST

If the Court does what I expect it to, I would probably be in favor of Congress uncapping personal contributions.

Looks like Justice Sotomayor (none / 0) (#15)
by KeysDan on Wed Sep 09, 2009 at 03:01:27 PM EST

and Justice Stevens are of one mind on constitutional avoidance in this case.

Oh man (none / 0) (#17)
by Steve M on Wed Sep 09, 2009 at 03:11:25 PM EST

they will love this one at Daily Kos:

JUSTICE SOTOMAYOR: ...Because what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court's error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.

: Wow (none / 0) (#30)
by Peter G on Wed Sep 09, 2009 at 09:31:21 PM EST

Thanks for posing that question, Justice Sotomayor. That is indeed really the first proposition that should be placed in issue in this case. Supreme Court jurisprudence is a jumble of baseless, made-up nonsense on this point. Corporations are treated as part of "the people" so as to be endowed with Fourth Amendment rights -- essentially, privacy rights -- against unreasonable searches and seizures, and as a species of "the accused" under the Sixth Amendment so as to be embued with trial rights when charged with a crime, but -- most oddly, imho -- as "persons" under the Fifth Amendment for due process and double jeopardy purposes, but not as "persons" under the same Fifth Amendment when the privilege against self-incrimination is invoked. Do corporations have the constitutional right to "bear arms" under the Second Amendment as now interpreted in Heller? Who knows? Just bizarre.

John Roberts, extremist: (none / 0) (#20)
by andgarden on Wed Sep 09, 2009 at 03:29:21 PM EST

But it is extraordinary -- I mean, the -- the idea and as I understand the rationale, we -- we the government, big brother, has to protect shareholders from themselves. They might give money, they might buy shares in a corporation and they don't know that the corporation is taking out radio ads. The government has to keep an eye on their interests.

Shouldn't rhe court permit labor (none / 0) (#23)
by oculus on Wed Sep 09, 2009 at 03:40:25 PM EST

Unions to use members' dues for support of political issues?


: That comes up later (none / 0) (#24)
by andgarden on Wed Sep 09, 2009 at 03:45:41 PM EST

in a back-and-forth between (I think) Kagan and Ginsburg.

Glad to learn Justice Sotomayor (none / 0) (#21)
by oculus on Wed Sep 09, 2009 at 03:32:16 PM EST

is asking important questions of counsel. Jump right in.

: must be (5.00 / 1) (#22)
by CST on Wed Sep 09, 2009 at 03:36:04 PM EST

that "fiery latina" temperment. Thank goodness for that.