Comment & Debate
Chief Justice Roberts said that limitations on an anti-Clinton movie called “Hillary: the Movie.” before the 2008 primary elections would lead to broader restrictions: “would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern.”[1]
Citizens United vs. Federal Election Commission 5-4 Majority Ruling: “It is well known that the public begins to concentrate on elec-tions only in the weeks immediately before they are held.There are short timeframes in which speech can have influence. The need or relevance of the speech will often first be apparent at this stage in the campaign. The deci-sion to speak is made in the heat of political campaigns,when speakers react to messages conveyed by others. A speaker’s ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first commence a protracted lawsuit. By the time the lawsuit concludes, the election will be over and the litigants in most cases will have neither the incentive nor, perhaps, the resources to carry on, even if they couldestablish that the case is not moot because the issue is “capable of repetition, yet evading review.” WRTL, supra, at 462 (opinion of ROBERTS, C. J.) (citing Los Angeles v. Lyons, 461 U. S. 95, 109 (1983); Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911)). Here, Citizens United decided to litigate its case to the end. Today,Citizens United finally learns, two years after the fact,whether it could have spoken during the 2008 Presidential primary—long after the opportunity to persuade primaryvoters has passed.
Third is the primary importance of speech itself to theintegrity of the election process. As additional rules are created for regulating political speech, any speech argua-bly within their reach is chilled. See Part II–A, supra. Campaign finance regulations now impose “unique and complex rules” on “71 distinct entities.” Brief for Seven Former Chairmen of FEC et al. as Amici Curiae 11–12. These entities are subject to separate rules for 33 differenttypes of political speech. Id., at 14–15, n. 10. The FEC has adopted 568 pages of regulations, 1,278 pages of ex-planations and justifications for those regulations, and 1,771 advisory opinions since 1975. See id., at 6, n. 7. In fact, after this Court in WRTL adopted an objective “ap-peal to vote” test for determining whether a communica-tion was the functional equivalent of express advocacy, 551 U. S., at 470 (opinion of ROBERTS, C. J.), the FEC adopted a two-part, 11-factor balancing test to implement WRTL’s ruling. See 11 CFR §114.15; Brief for WyomingLiberty Group et al. as Amici Curiae 17–27 (filed Jan. 15, 2009).
This regulatory scheme may not be a prior restraint onspeech in the strict sense of that term, for prospectivespeakers are not compelled by law to seek an advisory opinion from the FEC before the speech takes place. Cf. Near v. Minnesota ex rel. Olson, 283 U. S. 697, 712–713 (1931). As a practical matter, however, given the complex-ity of the regulations and the deference courts show toadministrative determinations, a speaker who wants toavoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a govern-mental agency for prior permission to speak. See 2
U. S. C. §437f; 11 CFR §112.1. These onerous restrictions thus function as the equivalent of prior restraint by givingthe FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmen-tal practices of the sort that the First Amendment was drawn to prohibit. See Thomas v. Chicago Park Dist., 534
U. S. 316, 320 (2002); Lovell v. City of Griffin, 303 U. S. 444, 451–452 (1938); Near, supra, at 713–714. Because the FEC’s “business is to censor, there inheres the dangerthat [it] may well be less responsive than a court—part of an independent branch of government—to the constitu-tionally protected interests in free expression.” Freedman
v. Maryland, 380 U. S. 51, 57–58 (1965). When the FEC issues advisory opinions that prohibit speech, “[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 soci-ety as a whole, which is deprived of an uninhibited mar-ketplace of ideas.” Virginia v. Hicks, 539 U. S. 113, 119 (2003) (citation omitted). Consequently, “the censor’s determination may in practice be final.” Freedman, supra, at 58.
This is precisely what WRTL sought to avoid. WRTL said that First Amendment standards “must eschew ‘the open-ended rough-and-tumble of factors,’ which ‘invit[es]complex argument in a trial court and a virtually inevita-ble appeal.’” 551 U. S., at 469 (opinion of ROBERTS, C. J.) (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 547 (1995); alteration in original). Yet, the FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests. If parties want to avoid litiga-tion and the possibility of civil and criminal penalties, theymust either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question. Government officials pore over each word of a text to see if, in their judgment, it accords with the 11-factor test they have promulgated. This is an unprece-dented governmental intervention into the realm of speech.
The ongoing chill upon speech that is beyond all doubt protected makes it necessary in this case to invoke the earlier precedents that a statute which chills speech can and must be invalidated where its facial invalidity hasbeen demonstrated. For these reasons we find it necessary to recon-sider Austin.