‘Citizens United’ another example of the Supreme Court’s dangerous expansion of the First Amendment

George Anastaplo‘s letter to the editor regarding the Citizens United case appeared in the Chicago Daily Law Bulletin on Thursday, February 18, 2010 (Volume: 156 Issue: 33)

To the editor:

The recent U.S. Supreme Court decision in the Citizens United case seems to permit business corporations and labor unions to spend as lavishly as they wish in our political campaigns. Critics of that decision go so far, in response, as to call for an amendment to the Constitution to permit strict regulation, by both Congress and state legislatures, of such disruptive expenditures.

But it is not only here that the Supreme Court has gone woefully astray in interpreting the speech and press provision of the First Amendment, also extending as it has the historic protection secured by that provision to obscenity, pornography, commercial advertising, and much more. Prudence cautions that any constitutional amendment here runs the risk of confirming, in effect, some of the even more dubious things that the Supreme Court has done the past century about such matters. We need, indeed, development of arguments about the essentially political-discussion concerns of the speech and press provision of the First Amendment, a provision intended to protect the extensive, if not even unlimited, right and duty of a self-governing people to discuss public affairs.

At the root of the steady corruption here, to which we have become accustomed, may be the “clear and present danger” test proclaimed by the Supreme Court in 1919, thereby decisively limiting the original understanding of our vital right to freedom of speech. We, as citizens, are entitled, if not even obliged, to challenge vigorously (but in a responsible manner) what the Supreme Court has done, again and again, both in dangerously limiting and in improperly extending the reach of the First Amendment.

George Anastaplo
Professor of Law
Loyola University Chicago School of Law

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