The text of the First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Notably the First Amendment says nothing about restricting speech privileges to individuals. Ours is a Constitution of negative rights, protecting retained rights, i.e., those that Americans did not trade for government protection. Obvi then, as the Court just held in Citizens United, entities similarly retain the right to free speech, free from Congressional abridgment.
Citizens United addressed only corporations‘ rights to fund political speech absent government regulation. Tomorrow the DC Court of Appeals will hear SpeechNow, an IJ case in which a group of individuals maintain a website with the sole purpose of tracking free speech-oriented candidates.
What makes SpeechNow interesting is that the website, SpeechNow.org, does not contribute money to any party or candidate. There is no overt backing involved. SpeechNow merely provides an element of transparency to an otherwise-muddled process: It permits voters who care primarily about speech to find those political bodies that promote speech.
Ironic then that the FEC remains determined to tamp even discussion about discussion of free speech. From IJ’s press release:
IJ Senior Attorney Bert Gall said, “The FEC argues that the more effective speech is, the more it can be regulated. Under that reasoning, the only people who would be allowed to speak about candidates are those who have no hope of influencing anyone else. But as Chief Justice Roberts said in his concurring opinion in Citizens United, ‘The First Amendment protects more than the individual on a soapbox and the lonely pamphleteer.’”
By requiring any communicating group to speak through formal Political Action Committee status, the FEC ensures that “free speech is reduced to a whimper”:
Institute for Justice Staff Attorney Robert Frommer said, “Political Action Committees must fill out dozens of forms, keep track of every single penny that they receive or spend, and are subject to the constant threat of audits, fines, and even potential jail time. These complex and confusing regulations make speaking out an insider’s game, available only those who can afford to hire lawyers and accountants. In America, the only thing you should need to speak out is an opinion.”
There are a few arguments why corporate bodies deserve more “individual” status than other groups of people. But the First Amendment does not merely restrict Congress’s ability to regulate speech; it further protects the right to free association.
What’s the point of association without communication? By restricting speech merely on the basis of association (rather than coming from a single individual), the FEC neuters that “free assembly” clause critical to the very first of our Bill of Rights.
Perhaps more importantly, the premise behind free speech — and, by extension, free association — comes from James Madison’s Factions argument in Federalist 10. Association produces factions. Any group — including the varied interests even for a single individual’s divided mind — results in fractitioned urges.
A government dealing with popular factions has a choice. Says Madison:
By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.
There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.
There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.
In adopting the Constitution our founding fathers opted to celebrate factions. The framers decided to permit factions to promote their varied viewpoints, trusting the marketplace of ideas to separate wheat from chaff.
This has resulted in some results Madisonian conservatives deplore, like a lobbying chokehold that results in such atrocities as a corn subsidy. But free speech serves as a constitutional minimum. The structure of our government requires free association to remain hand-in-hand with free speech.