Summary of Two Concepts of Freedom of Speech

Citizens United v. FEC sparked controversy by allowing corporations to make independent expenditures from their general treasuries to advocate for or against political candidates.
This decision led to political uproar, including criticism from the President, proposed legislation, and calls for a constitutional amendment.

The article argues that both sides in Citizens United are committed to free speech but have different visions: free speech as equality and free speech as liberty.

Focuses on political equality and protecting ideological minorities.
Supports antidiscrimination and affirmative action for marginal, dissident, or unpopular viewpoints.
Views political equality as prior to speech; regulation promoting political equality prevails over speech.
Government may redistribute speaking power along viewpoint-neutral dimensions.
Affirms public subsidies for speech via unconditioned access to government property, jobs, facilities, or funds.

Sees the First Amendment as a check on government tyranny; skeptical of government efforts at speech suppression.
Trusts the public to evaluate speech individually; forbids government intervention for paternalistic or redistributive reasons.
Ideas are best left to a freely competitive ideological market.
Well-financed causes do not merit special judicial protection from political regulation.

Tension exists between free speech as serving equality and free speech as serving liberty.
Illuminated by analysis of possible political reforms post-Citizens United:

Invalidating limits on political contributions directly to candidates.
- Attractive to libertarians, not egalitarians.
Allowing independent electoral expenditures by nonprofits but not for-profits.
- Attractive to egalitarians, not libertarians.
Increasing disclosure requirements for corporations making political campaign expenditures.
- Attractive to both libertarians and egalitarians.
Conditioning government benefits to corporations on limiting political campaign expenditures.
- Attractive to libertarians, not egalitarians.

Government classifies all the time, but equal protection jurisprudence treats only certain grounds of differentiation (for example, race, ancestry, national origin, alienage, and qualifiedly gender) as suspect or “invidious,” while treating all others (for example, age, disability, and economic status) as presumptively permissible.$$

Justice Stevens' dissent emphasizes that limitations on corporate use of treasuries for political candidates are viewpoint-neutral.
The dissent views corporate features like limited liability and perpetual life as compelling them to engage the political process instrumentally to maximize shareholder value rather than advance the public good.
Would follow Austin v. Michigan State Chamber of Commerce, allowing the government to prevent "corrosive and distorting effects of immense aggregations of wealth."
Kennedy’s opinion for the majority articulates free speech as serving political liberty.

The former bars government from discriminating against marginal, dissident, or unpopular viewpoints that are likely to suffer political subordination or hostility.
The latter enforces a kind of preference or forced subsidy for marginal, dissident, or unpopular viewpoints by barring the attachment of speech-restrictive conditions to the receipt of public benefits.

Government regulation is suspect not only when it discriminates among viewpoints but also when it discriminates among speakers.
The Free Speech Clause protects a system or process of free speech, not the rights of any determinate set of speakers.

Invalidating limits on direct contributions to candidates: controversial but theoretically possible.
Distinguishing for-profit from nonprofit corporations: allowing expenditure bans only for for-profit entities.
Increasing disclosure and disclaimer requirements.
Conditioning government benefits to corporations.