Ill wind blows for political speech from Stevens' Citizens United dissent 

As heartening as was Justice Anthony Kennedy's opinion for the 5-4 majority in the Citizens United v Federal Election Commission case before the Supreme Court, there are aspects of Justice John Paul Stevens dissent that are anything but encouraging.

Stevens adopts a view that if adopted by the Court could do tremendous damage to freedom of political speech in this country, according to Mark Fitzgibbons, a Virginia attorney, writing on American Thinker.

Essentially, Stevens argued that the Founders had no problem at all with the idea of federal regulation of corporations, and he cited an 1819 case, Trustees of Dartmouth College v Woodward for support of his argument that the First Amendment doesn't apply to corporations, except those which constitute the "institutional press." according to Fitzgibbons.

Because corporations are entirely "artificial" creations of "the sovereign," the government can regulate them in any manner including depriving them of First Amendment protections like freedom of speech Stevens argued. He thus ignores, either by choice or by oversight, the crucial distinction between private corporations like Dartmouth College and public corportions such as cities, townships, and Fannie Mae.

But Fitzgibbons points out that Dartmouth College actually is precedent for the view that private corporations - being creations of individuals and groups of individuals - are entitled to the same First Amendment protections. And he notes that none other Chief Justice John Marshall wrote the majority opinion in the the decision, which included this passage:

"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being a creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence.

"These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; properties, by which a perpetual succession of many persons are considered the same, and may act as a single individual."

Not only does a private corporation act as an individual, there is no government authority that can legally deprive a private corporation of protected rights with which it was vested at its creation. Since Dartmouth College was vested at its creation for fulfilling a purpose - teaching of religion - that is clearly protected by the First Amendment, it must follow that the corporation itself is protected as well.

Under Stevens' logic, Dartmouth College would only have those rights granted to it by the state and they could be changed or withdrawn entirely at the whim of the state, an outcome exactly opposite of what the Founders intended in writing the First Amendment.

Stevens is in the minority, for now, but that could change because, as Fitzgibbons notes, "left-wing and government lawyers will glom onto that language to attempt to justify the most invasive intrusions into corporations -- including nonprofits -- and their First Amendment, property, and other rights. That is why it is important to expose Justice Stevens' error now, before it becomes incorporated into our jurisprudence by mistake or design."

Put simply, Stevens' reasoning could be used to justify, among many forms of perniciousness, government regulation of what non-profits like the conservative Heritage Foundation and the liberal Brookings Institution can and cannot publish, a form of prior restrain that is absolutely inimical to the First Amendment.

You can read the entirety of Fitzgibbons post at American Thinker here.

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Mark Tapscott

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