Parties: CITIZENS UNITED, Appellant v. FEDERAL ELECTION COMMISSION
Date: 2010-01-21
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Paragraph: 55 - N96* The First Amendment provides that [***LEdHR15] "Congress shall make no law . . . abridging the freedom of speech." Laws enacted to control or suppress speech may operate at different points in the speech process. The following are just a few examples of restrictions that have been attempted at different stages of the speech process--all laws found to be invalid: restrictions requiring a permit at the outset, Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U.S. 150, 153, 122 S. Ct. 2080, 153 L. Ed. 2d 205 (2002); imposing a burden by impounding proceeds on receipts or royalties, Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 108, 123, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991); seeking to exact a cost after the speech occurs, New York Times Co. v. Sullivan, 376 U.S., at 267, 84 S. Ct. 710, 11 L. Ed. 2d 686; and subjecting the speaker to [**897] criminal penalties, Brandenburg v. Ohio, 395 U.S. 444, 445, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969) (per curiam).
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Paragraph: 213 - The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why "the freedom of speech" that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored.
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Paragraph: 223 - Historical evidence relating to the textually similar clause "the freedom of . . . the press" also provides no support for the proposition that the First Amendment excludes conduct of artificial legal entities from the scope of its protection. The freedom of "the press" was widely understood to protect the publishing activities of individual editors and printers. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 360, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995) (Thomas, J., concurring in judgment); see also McConnell, 540 U.S., at 252-253, 124 S. Ct. 619, 157 L. Ed. 2d 491 (opinion of SCALIA, J.). But these individuals often acted through newspapers, which (much like corporations) had their own names, outlived the individuals who had founded them, could be bought and sold, were sometimes owned by more than one person, and were operated for profit. See generally F. [**928] Mott, American Journalism: A History of Newspapers in the United States Through 250 Years 3-164 (1941); J. Smith, Freedom's Fetters (1956). Their activities were not stripped of First Amendment protection simply because they were carried out under the banner of an artificial legal entity. And the notion which [***815] follows from the dissent's view, that modern newspapers, since they are incorporated, have free-speech rights only at the sufferance of Congress, boggles the mind.
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Paragraph: 224 - It is passing strange to interpret the phrase "the freedom of speech, or of the press" to mean, not everyone's right to speak or publish, but rather everyone's right to speak or the institutional press's right to publish. No one thought that is what it meant.
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Paragraph: 230 - The dissent says that "'speech'" refers to oral communications of human beings, and since corporations are not human beings they cannot speak. Post, at 428, n. 55, 175 L. Ed. 2d, at 838. This is sophistry. The authorized spokesman of a corporation is a human being, who speaks on behalf of the human beings who have formed that association -- just as the spokesman of an unincorporated association speaks on behalf of its members. The power to publish thoughts, no less than the power to speak thoughts, belongs only to human beings, but the dissent sees no problem with a corporation's enjoying the freedom of the press.
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Paragraph: 329 - "Our jurisprudence over the past 216 years has rejected an absolutist interpretation" of the First Amendment. WRTL, 551 U.S., at 482, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (opinion of Roberts, C. J.). The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press." Apart perhaps from measures designed to protect the press, that text might seem to permit no distinctions of any kind. Yet in a variety of contexts, we have held that speech can be regulated differentially on account of the speaker's identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students,41 prisoners,42 members of the Armed Forces,43 foreigners,44 and its own employees.45 When such restrictions are justified by a legitimate governmental interest, [**946] they do not necessarily raise constitutional [***834] problems.
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Paragraph: 355 -
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Paragraph: 356 - In normal usage then, as now, the term "speech" referred to oral communications by individuals. See, e.g., 2 S. Johnson, Dictionary of the English Language 1853-1854 (4th ed. 1773) (reprinted 1978) (listing as primary definition of "speech": "The power of articulate utterance; the power of expressing thoughts by vocal words"); 2 N. Webster, American Dictionary of the English Language (1828) (reprinted 1970) (listing as primary definition of "speech": "The faculty of uttering articulate sounds or words, as in human beings; the faculty of expressing thoughts by words or articulate sounds. Speech was given to man by his Creator for the noblest purposes"). Indeed, it has been "claimed that the notion of institutional speech . . . did not exist in post-revolutionary America." Fagundes, State Actors as First Amendment Speakers, 100 Nw. U. L. Rev. 1637, 1654 (2006); see also Bezanson, Institutional Speech, 80 Iowa L. Rev. 735, 775 (1995) ("In the intellectual heritage of the eighteenth century, the idea that free speech was individual and personal was deeply rooted and clearly manifest in the writings of Locke, Milton, and others on whom the framers of the Constitution and the Bill of Rights drew"). Given that corporations were conceived of as artificial entities and do not have the technical capacity to "speak," the burden of establishing that the Framers and ratifiers understood "the freedom of speech" to encompass corporate speech is, I believe, far heavier than the majority acknowledges.
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Paragraph: 357 - The Court observes that the Framers drew on diverse intellectual sources, communicated through newspapers, and aimed to provide greater freedom of speech than had existed in England. Ante, at 353, 175 L. Ed. 2d, at 790-791. From these (accurate) observations, the Court concludes that "[t]he First Amendment was certainly not understood to condone the suppression of political speech in society's most salient media." Ibid. This conclusion is far from certain, given that many historians believe the Framers were focused on prior restraints on publication and did not understand the First Amendment to "prevent the subsequent punishment of such [publications] as may be deemed contrary to the public welfare." [**951] Near v. Minnesota ex rel. Olson, 283 U.S. 697, 714, 51 S. Ct. 625, 75 L. Ed. 1357 (1931). Yet, even if the majority's conclusion were correct, it would tell us only that the First Amendment was understood to protect political speech in certain media. It would tell us little about whether the Amendment was understood to protect general treasury electioneering expenditures by corporations, and to what extent.
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Paragraph: 361 - Justice Scalia also emphasizes the unqualified nature of the First Amendment text. Ante, at 386, 392-393, 175 L. Ed. 2d, at 812, 815-816. Yet he would seemingly read out the Free Press Clause: How else could he claim that my purported views on newspapers must track my views on corporations generally? Ante, at 390, 175 L. Ed. 2d, at 814.57 Like virtually all modern lawyers, Justice [**952] Scalia presumably believes that the First Amendment restricts the Executive, even though its language refers to Congress alone. In any event, the text only leads us back to the questions who or what is guaranteed "the freedom of speech," and, just as critically, what that freedom consists of and under what circumstances it may be limited. Justice Scalia appears to believe that because corporations are created and utilized by individuals, it follows (as night the day) that their electioneering must be equally protected by the First Amendment and equally immunized from expenditure limits. See ante, at 391-392, 175 L. Ed. 2d, at 815. That conclusion certainly does not follow as a logical matter, and Justice Scalia fails to explain why the original public meaning leads it to follow as a matter of interpretation.
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Paragraph: 445 - One fundamental concern of the First Amendment is to "protec[t] the individual's interest in self-expression." Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U.S. 530, 534, n. 2, 100 S. Ct. 2326, 65 L. Ed. 2d [***863] 319 (1980); see also Bellotti, 435 U.S., at 777, n. 12, 98 S. Ct. 1407, 55 L. Ed. 2d 707. Freedom of speech helps "make men free to develop their faculties," Whitney v. California, 274 U.S. 357, 375, 47 S. Ct. 641, 71 L. Ed. 1095 (1927) (Brandeis, J., concurring), it respects their "dignity and choice," Cohen v. California, 403 U.S. 15, 24, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971), and it facilitates the value of "individual self-realization," Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591, 594 (1982). Corporate speech, however, is derivative speech, speech by proxy. A regulation such as BCRA § 203 may affect the way in which individuals disseminate certain messages through the corporate form, but it does not prevent anyone from speaking in his or her own voice. "Within the realm of [campaign spending] generally," corporate spending is "furthest from the core of political expression."
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Paragraph: 365 - We have long since held that corporations are covered by the First Amendment, and many legal scholars have long since rejected the concession theory of the corporation.
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Paragraph: 213 - It never shows why "the freedom of speech" that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored.
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Paragraph: 225 - N219* "Liberty of the press, in civil policy, is the free right of publishing books, pamphlets or papers without previous restraint; or the unrestrained right which every citizen enjoys of publishing his thoughts and opinions, subject only to punishment for publishing what is pernicious to morals or to the peace of the state."
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Paragraph: 62 - The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. [***LEdHR16] The First Amendment "'has its fullest and most urgent application' to speech uttered during a campaign for political office."
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Paragraph: 110 - N220* The purpose and effect of this law is to prevent corporations, including small and nonprofit corporations, from presenting both facts and opinions to the public. This makes Austin's antidistortion rationale all the more an aberration. [***LEdHR33] [33] N221* "[T]he First Amendment protects the right of corporations to petition legislative and administrative bodies."
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Paragraph: 38 - As the Government stated, this case "would require a remand" to apply a de minimis standard. Tr. of Oral Arg. 39 (Sept. 9, 2009). Applying this standard would thus require case-by-case determinations. But archetypical political speech would be chilled in the meantime. [***LEdHR7] [7] "'First Amendment freedoms need breathing space to survive.'" WRTL, supra, at 468-469, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (opinion of Roberts, C. J.) (quoting NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963)). We decline to adopt an interpretation that requires intricate case-by-case determinations to verify whether political speech is banned, especially if we are convinced that, in the end, this corporation has a constitutional right to speak on this subject.
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Paragraph: 477 - Congress may not abridge the "right to anonymous speech" based on the N139* "'simple interest in providing voters with additional relevant information,'" i
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Paragraph: 65 - Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker's voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.
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Paragraph: 106 - So even assuming the most doubtful proposition that a news organization has a right to speak when others do not, the exemption would allow a conglomerate that owns both a media business and an unrelated business to influence or control the media in order to advance its overall business interest. At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue. This differential treatment cannot be squared with the First Amendment.
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Paragraph: 224 - N138* The dissent seeks to avoid this conclusion (and to turn a liability into an asset) by interpreting the Freedom of the Press Clause to refer to the institutional press (thus demonstrating, according to the dissent, that the Founders "did draw distinctions -- explicit distinctions -- between types of 'speakers,' or speech outlets or forms"). Post, at 431, 175 L. Ed. 2d, at 840, and n. 57. It is passing strange to interpret the phrase "the freedom of speech, or of the press" to mean, not everyone's right to speak or publish, but rather everyone's right to speak or the institutional press's right to publish. No one thought that is what it meant.
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Paragraph: 229 - But the individual person's right to speak includes the right to speak in association with other individual persons. Surely the dissent does not believe that speech by the Republican Party or the Democratic Party can be censored because it is not the speech of "an individual American." It is the speech of many individual Americans, who have associated in a common cause, giving the leadership of the party the right to speak on their behalf. The association of individuals in a business corporation is no different -- or at least it cannot be denied the right to speak on the simplistic ground that it is not "an individual American."
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Paragraph: 237 - All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided.
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Paragraph: 355 - The Framers thus took it as a given that corporations could be comprehensively [**950] regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.55 While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends.
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Paragraph: 359 - Although Justice Scalia makes a perfectly sensible argument that an individual's right to speak entails a right to speak with others for a common cause, cf. MCFL, 479 U.S. 238, 107 S. Ct. 616, 93 L. Ed 2d 539, he does not explain why those two rights must be precisely identical, or why that principle applies to electioneering by corporations that serve no "common cause." Ante, at 392, 175 L. Ed. 2d, at 815. Nothing in his account dislodges my basic point that members of the founding generation held a cautious view of corporate power and a narrow view of corporate rights (not that they "despised" corporations, [***840] ante, at 386, 175 L. Ed. 2d, at 812), and that they conceptualized speech in individualistic terms. If no prominent Framer bothered to articulate that corporate speech would have lesser status than individual speech, that may well be because the contrary proposition--if not also the very notion of "corporate speech"--was inconceivable.56
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Paragraph: 450 - In short, regulations such as § 203 and the statute upheld in Austin impose only a limited burden on First Amendment freedoms not only because they target a narrow subset of expenditures and leave untouched the broader "public dialogue," ante, at 341, 175 L. Ed. 2d, at 783, but also because they leave untouched the speech of natural persons. Recognizing the weakness of a speaker-based critique of Austin, the Court places primary emphasis not on the corporation's right to electioneer, but rather on the listener's interest in hearing what every possible speaker may have to say. The Court's central argument is that laws such as § 203 have "'deprived [the electorate] of information, knowledge and opinion vital to its function,'" ante, at 354, 175 L. Ed. 2d, at 792 (quoting CIO, 335 U.S., at 144, 68 S. Ct. 1349, 92 L. Ed. 1849 (Rutledge, J., concurring in judgment)), and this, in turn, "interferes with the 'open marketplace' of ideas protected by the First Amendment," ante, at 354, 175 L. Ed. 2d, at 791 (quoting New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 208, 128 S. Ct. 791, 169 L. Ed. 2d 665 (2008)
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Paragraph: 71 - This protection has been extended by explicit holdings to the context of political speech. See, e.g., Button, 371 U.S., at 428-429, 83 S. Ct. 328, 9 L. Ed. 2d 405; Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S. Ct. 444, 80 L. Ed. 660 (1936). Under the rationale of these precedents, [***LEdHR23] [23] political speech does not lose First Amendment protection N54* "simply because its source is a corporation." Bellotti, supra, at 784, 98 S. Ct. 1407, 55 L. Ed. 2d 707; see Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 8, 106 S. Ct. 903, 89 L. Ed. 2d 1 (1986) (plurality opinion) N55* ("The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the 'discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster"
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Paragraph: 101 - The rule that political speech cannot be limited based on a speaker's wealth is a necessary consequence of the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker's identity.
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Paragraph: 134 - Austin is undermined by experience since its announcement. Political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws. See, e.g., McConnell, 540 U.S., at 176-177, 124 S. Ct. 619, 157 L. Ed. 2d 491 ("Given BCRA's tighter restrictions on the raising and spending of soft money, the incentives . . . to exploit [26 U.S.C. § 527] organizations will only increase"). Our Nation's speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights. Speakers have become adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle. Corporations, like individuals, do not have monolithic views. On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials.
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Paragraph: 182 - The text and purpose of the First Amendment point in the same direction: Congress may not prohibit political speech, even if the speaker is a corporation or union.
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Paragraph: 233 - The Amendment is written in terms of "speech," not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals -- and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is "speech" covered by the First Amendment. No one says otherwise. A documentary film critical of a potential Presidential candidate is core political speech, and its nature as such does not change simply because it was funded by a corporation. Nor does the character of that funding produce any reduction whatever in the N56* "inherent worth of the speech" and "its capacity for informing the public," First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 777, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.
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Paragraph: 355 - In light of these background practices and understandings, it seems to me implausible that the Framers believed "the freedom of speech" would extend equally to all corporate speakers, much less that it would preclude legislatures from taking limited measures to guard against corporate capture of elections.
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Paragraph: 356 - In normal usage then, as now, the term "speech" referred to oral communications by individuals. See, e.g., 2 S. Johnson, Dictionary of the English Language 1853-1854 (4th ed. 1773) (reprinted 1978) (listing as primary definition of "speech": "The power of articulate utterance; the power of expressing thoughts by vocal words"); 2 N. Webster, American Dictionary of the English Language (1828) (reprinted 1970) (listing as primary definition of "speech": "The faculty of uttering articulate sounds or words, as in human beings; the faculty of expressing thoughts by words or articulate sounds. Speech was given to man by his Creator for the noblest purposes"). Indeed, it has been "claimed that the notion of institutional speech . . . did not exist in post-revolutionary America." Fagundes, State Actors as First Amendment Speakers, 100 Nw. U. L. Rev. 1637, 1654 (2006); see also Bezanson, Institutional Speech, 80 Iowa L. Rev. 735, 775 (1995) ("In the intellectual heritage of the eighteenth century, the idea that free speech was individual and personal was deeply rooted and clearly manifest in the writings of Locke, Milton, and others on whom the framers of the Constitution and the Bill of Rights drew"). Given that corporations were conceived of as artificial entities and do not have the technical capacity to "speak," the burden of establishing that the Framers and ratifiers understood "the freedom of speech" to encompass corporate speech is, I believe, far heavier than the majority acknowledges.
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Paragraph: 445 - Freedom of speech helps N57* "make men free to develop their faculties," Whitney v. California, 274 U.S. 357, 375, 47 S. Ct. 641, 71 L. Ed. 1095 (1927) (Brandeis, J., concurring), it respects their "dignity and choice," Cohen v. California, 403 U.S. 15, 24, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971), and it facilitates the value of "individual self-realization," Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591, 594 (1982). Corporate speech, however, is derivative speech, speech by proxy. A regulation such as BCRA § 203 may affect the way in which individuals disseminate certain messages through the corporate form, but it does not prevent anyone from speaking in his or her own voice. N58* "Within the realm of [campaign spending] generally," corporate spending is "furthest from the core of political expression."
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Paragraph: 109 - The censorship we now confront is vast in its reach. The Government has N125* "muffle[d] the voices that best represent the most significant segments of the economy." McConnell, supra, at 257-258, 124 S. Ct. 619, 157 L. Ed. 2d [***792] 491 (opinion of Scalia, J.). And N126* "the electorate [has been] deprived of information, knowledge and opinion vital to its function." CIO, 335 U.S., at 144, 68 S. Ct. 1349, 92 L. Ed. 1849 (Rutledge, J., concurring in result). By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.
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Paragraph: 112 - When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control [***793] thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.
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Search time: 2018-03-29 14:11:32 Searcher: clm6u Editor: ars9ef tcs9pk Segmenter: ars9ef tcs9pk
Paragraph: 233 - The Amendment is written in terms of "speech," not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals -- and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is "speech" covered by the First Amendment. No one says otherwise. A documentary film critical of a potential Presidential candidate is core political speech, and its nature as such does not change simply because it was funded by a corporation. Nor does the character of that funding produce any reduction whatever in the N4* "inherent worth of the speech" and "its capacity for informing the public,"First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 777, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy.
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Search time: 2018-03-28 15:58:04 Searcher: searcher Editor: ars9ef Segmenter: ars9ef
Paragraph: 51 - Because the FEC's N124* "business is to censor, there inheres the danger that [it] may well be less responsive than a court--part of an independent branch of government--to the constitutionally protected interests in free expression." Freedman v. Maryland, 380 U.S. 51, 57-58, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965). When the FEC issues advisory opinions that prohibit speech, N125* "[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech--harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas."
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Search time: 2018-04-26 09:34:45 Searcher: clm6u Editor: ars9ef tcs9pk Segmenter: ars9ef tcs9pk
Paragraph: 71 - political speech does not lose First Amendment protection N282* "simply because its source is a corporation." Bellotti, supra, at 784, 98 S. Ct. 1407, 55 L. Ed. 2d 707; see Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 8, 106 S. Ct. 903, 89 L. Ed. 2d 1 (1986) (plurality opinion) N283* ("The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the 'discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster"
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Search time: 2018-04-12 08:37:53 Searcher: clm6u Editor: ars9ef tcs9pk Segmenter: ars9ef tcs9pk