Intriguing–and Disquieting–Analysis of Citizens United

A paper delivered at the Law and Society conference I attended raised some interesting points about the Citizens United decision that I haven’t seen elsewhere. While there has been a lot of criticism of the Court’s classification of corporations as people, this presentation asked a more basic (albeit related) question: what was the “speech” that the First Amendment protected?

The author argued pretty persuasively that what the founders intended was protection of an individual right of free expression. Later courts extended that to “expressive association”–meaning the right of individuals to associate with those who share their opinions and values. Thus Political Action committees should have the right to free speech, since the very act of banding together for a political purpose is in furtherance of individual expression.

By extending expressive freedom to corporations and unions formed for very different purposes–where the individuals involved arguably had very different political views–the Court arguably was disrespecting the very individual rights the First Amendment was protecting in favor of a newly created group right. Our system, however, has explicitly rejected recognition of “group rights.” For good or ill, in the United States, only individuals, singly or in expressive association, are “rights-bearing.” Citizens United thus represents a movement toward group rights at odds with the premises of our constitution.

Food for thought.


  1. This is an interesting angle in light of the growing belief among many that the Constitution was written to protect the majority. I don’t like where this is going and neither should many of those who think they’re “winning.”

  2. John, if that is really a view held by any significant number of people, it really underscores the very sad state of civic education in this country. The idea that the constitution protects the majority is right up there with Sarah Palin’s belief that Paul Revere warned the British and was concerned about the (then unwritten) Second Amendment.

  3. Forgive my ignorance, but I thought the thinking is that corporations are seen as legal “persons” in and of themselves, and that’s why they were given these rights.

    Regardless, what a slippery, dangerous slope.

  4. The idea that corporations are “legal persons” is a fiction to enable them to do business efficiently and to define their legal rights–especially to sue or be sued. Stretching that fiction to encompass a right to free speech equivalent to the rights enjoyed by real, in-the-flesh persons is definitely new.

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