16

494 U.S. at 692-693.
Scalia concludes on this point,

“Despite all the talk of ‘corruption and the
appearance of corruption’ — evils that are not
significantly implicated and that can be avoided
in many other ways — it is entirely obvious that
the object of the law we have approved today is
not to prevent wrongdoing but to prevent speech.”

494 U.S. at 694. Scalia adds,

“The Michigan law appears to be
designed...neither to protect shareholders, nor
even (impermissibly) to ‘balance’ general political
debate, but to protect political candidates.”

494 U.S. at 686.

For all of these reasons, this Court should
overrule Austin as fundamentally inconsistent with
the protections of the First Amendment for core
political speech. We respectfully submit that the
Court should issue a broad ruling establishing the
clear principle that the government may not restrict
the core political speech of non-profit corporations
involving independent expenditures. It should
expressly reserve the issue of protections for the core
political speech of for-profit corporations based on
independent expenditures for a case involving for-
profit corporations.

CONCLUSION


10

Representatives in a June, 1985 special election.
Since violation of the state campaign finance statute
was punishable as a felony, the Michigan Chamber
sued for injunctive relief against enforcement of the
statute, on the grounds that it unconstitutionally
violated the free speech guarantee of the First
Amendment.

The Austin majority found a compelling state
interest to restrict core political speech based on “a
different type of corruption in the political arena.”
494 U.S. at 660.. That was, again, “the corrosive and
distorting effects of immense aggregations of
wealth,” that are both “accumulated with the help of
the corporate form,” and that “have little or no
correlation to the public’s support for the
corporation’s political ideas.” Id.

This concern that the resources of some may
enable them to engage in too much speech, which is
somehow unfair to others, is inconsistent with the
whole notion of the First Amendment’s free speech
guarantee. That guarantee is focused on maximizing
freedom of speech, not equalizing or balancing
speech. The Court recognized this point in Buckley,
in expressly rejecting the argument later embraced
by the Austin majority, saying,

“But the concept that government may restrict
the speech of some elements of our society in
order to enhance the relative voice of others is
wholly foreign to the First Amendment, which
was designed ‘to secure the widest possible
dissemination of information from diverse and
antagonistic sources,’ and ‘to assure unfettered


INTEREST OF THE AMICUS CURIAE!

The American Civil Rights Union (ACRU) is a
non-partisan legal policy organization dedicated to
defending all constitutional rights, not just those
that might be politically correct or fit a particular
ideology. It was founded in 1998 by long time
Reagan policy advisor and architect of modern
welfare reform Robert B. Carleson, and since then
has filed amicus curiae briefs on constitutional law
issues in cases all over the country.

Those setting the organization’s policy as
members of the Policy Board are former U.S.
Attorney General Edwin Meese III; Pepperdine Law
School Dean Kenneth W. Starr; former Assistant
Attorney General for Civil Rights William Bradford
Reynolds; John M. Olin Distinguished Professor of
Economics at George Mason University Walter E.
Williams; former Harvard University Professor, Dr.
James Q. Wilson; Ambassador Curtin Winsor, Jr.;
and Dean Emeritus of the UCLA Anderson School of
Management J. Clayburn LaForce.

This case is of interest to the ACRU because we
want to ensure that all constitutional rights are fully
protected, not just those that may advance a

' Peter J. Ferrara authored this brief for the American Civil Rights
Union (ACRU). No counsel for either party authored the brief in whole
or in part and no one apart from the ACRU made a monetary
contribution to the preparation or submission of this brief. All parties
consented to the filing of this brief and were timely notified.


17

For all of the foregoing reasons, Austin should
be overruled, and the judgment of the District Court
below should be reversed.

Peter Ferrara

Counsel of Record
American Civil Rights Union
1232 Pine Hill Rd.
McLean, VA 22101
703-582-8466

Counsel for Amicus Curiae
American Civil Rights Union


14

speech, are why the fact that corporations
accumulate their wealth in part with government
help is irrelevant to whether there is a compelling
government interest justifying restrictions on core
political speech. However corporations may
accumulate their wealth, what is involved is still just
speech that listeners may accept or reject, espousing
competing rather than monolithic political interests,
and the policy of the First Amendment is to protect
the freedom to engage in such speech to the
maximum extent possible, not hopelessly try to
balance such speech through restrictions on freedom
of speech.

That is why, as Scalia says in answer to the legal
advantages granted to corporations,

“[S]o are other associations and private
individuals given all sorts of special advantages
that the state need not confer, ranging from tax
breaks to contract awards to public employment
to outright cash subsidies. It is rudimentary that
the State cannot exact as the price of those
special advantages the forfeiting of First
Amendment rights.”

494 U.S. at 680.

These points are reflected in FCC v. League of
Women Voters of California, 468 U.S. 364 (1984). In
that case, this Court protected the free speech rights
of corporate noncommercial broadcasting stations
that received federal funds to operate, in striking
down a Congressional ban on editorializing by those
stations. Advocates of the ban tried to justify it


6

As this Court said in NCPACG, “[P]reventing
corruption or the appearance of corruption are the
only legitimate and compelling government interests
thus far identified for restricting campaign finances.”
470 U.S. at 496-497. But there is no such corruption
or the appearance of corruption in this case.

Citizens United is a modest non-profit corporation
whose expenditures in producing and promoting the
movie were all completely independent of any
campaign. Such independent expenditures do not
involve any “actual or apparent quid pro quo
arrangements.” Wisconsin Right to Life, 127 S. Ct.
at 2672 (opinion of Roberts, C.J.).

As this Court said in Buckley, the

“absence of prearrangement and coordination of
an expenditure with the candidate or his agent
not only undermines the value of the expenditure
to the candidate, but also alleviates the danger
that expenditures will be given as a guid pro quo
for improper commitments from the candidate.”

424 US. at 47. The Court also recognized in NCPAC
that there is a “fundamental constitutional difference
between money spent to advertise one’s views
independently of the candidate’s campaign and
money contributed to the candidate to be spent on
his campaign.” 470 U.S. at 496-497.

Kennedy adds in dissent in Austin,

“Our cases acknowledge the danger that
corruption poses for the electoral process, but


3

involves simple speech, which the listener can accept
or reject. If the speech persuades many listeners,
then it was all the more important to protect. If the
speech does not persuade many listeners, then it
cannot be harmful.

Moreover, corporate interests are not monolithic
in their views on politics and public policy. Their
views are generally in competition with each other,
and there are many corporate supporters of both
political parties. Many corporate interests favor
public policies that will give them competitive
advantages over other corporate interests, which are
then naturally opposed by those disfavored corporate
interests.

This Court should protect the free speech rights
of Citizens United with a broad ruling establishing
that the government may not restrict the core
political speech of non-profit corporations involving
independent expenditures. It should expressly
reserve the issue of protections for the core political
speech of for-profit corporations based on
independent expenditures for a case involving for-
profit corporations.

This Court should overrule Austin as
fundamentally inconsistent with the protections of
the First Amendment for core political speech. The
government may not restrict core political speech on
an impossible mission of balancing all such speech in
society. The Constitution’s policy is far more
realistically for all such speech to compete, with the
public making the ultimate decision as to what is
right, within constitutional limitations.


particular ideology. That includes the right to
Freedom of Speech under the First Amendment.

SUMMARY OF ARGUMENT

This case involves core political speech, which is
at the heart of the First Amendment. The freedom to
engage in such core political speech has been
recognized since the Founding as a fundamental
foundation of our democracy. It can be restricted
only in the most extreme circumstances, where the
restriction is narrowly tailored to serve a compelling
state interest. Such extreme circumstances are not
present in this case, and the free speech rights of
appellant Citizens United have consequently been
violated.

There is no corruption or appearance of
corruption in the case of a non-profit corporation
engaging only in independent expenditures. The
facts of this case clearly show no guid pro quo or
appearance of any such quid pro quo.

Moreover, Citizens United is a modest non-profit
with no “immense aggregation of wealth.” The entire
corporate treasury of Citizen’s United does come
precisely from those who support the corporation’s
political ideas, because the corporation was formed
precisely to advance a particular, stated, ideological
viewpoint.

The First Amendment’s free speech guarantee is
focused on maximizing freedom of speech, not
equalizing or balancing speech. Indeed, what has
not been sufficiently recognized is that this case


15

based on the federal assistance, but this Court
rejected that justification.

The policy of the First Amendment protecting
freedom of speech rather than balancing of speech is
based in part on the judgment that the government
cannot be trusted to balance speech without
favoritism among political viewpoints. Scalia again
explained this in his dissent in Austin, saying,

“[Glovernmental abridgement of liberty is always
undertaken with the very best of announced
objectives (dictators promise to bring order, not
tyranny), and often with the very best of
genuinely intended objectives (zealous policemen
conduct unlawful searches in order to put
dangerous felons behind bars). The premise of
our Bill of Rights, however, is that there are some
things — even some seemingly desirable things —
that government cannot be trusted to do. The
very first of these is establishing the restrictions
upon speech that will assure ‘fair’ political debate.
The incumbent politician who says he welcomes
full and fair debate is no more to be believed than
the entrenched monopolist who says he welcomes
full and fair competition. Perhaps the Michigan
Legislature...was trying to give unincorporated
unions...political advantage over major
employers. Or perhaps...it knows that with
evenly balanced speech incumbent officeholders
generally win. The fundamental approach of the
First Amendment...was to assume the worst, and
to rule the regulation of political speech ‘for
fairness sake’ simply out of bounds.”


5

Committee, 470 U.S. 480 (1985)(“NCPAC’); Williams
v. Rhodes, 393 U.S. 23 (1968).

Yet, acting under the authority of the BCRA (The
Bipartisan Campaign Reform Act of 2002), the
Appellee Federal Election Commission effectively
banned the movie for the entire 2008 election season.
This amounts to a gross violation of the fundamental
political free speech rights of Appellant Citizens
United, which must be corrected so that Citizens
United will be free to distribute future movies
reflecting the political views and opinions of its
members.

The First Amendment states, “Congress shall
make no law...abridging the freedom of speech....”
The well-established precedents of this Court allow
regulation of protected speech only when the
restrictions are narrowly tailored to serve a
compelling state interest. E.g., Buckley; MCFL,;
NCPAC; Bellotti; Wisconsin Right to Life.

But there is no compelling state interest that
would justify the severe restriction on the political
free speech of Appellant Citizens United in this case.
The restriction on free speech is also not narrowly
tailored, but that is a secondary consideration when
there is no compelling state interest to justify the
restriction in the first place.

II. | THERE IS NO COMPELLING STATE
INTEREST TO JUSTIFY THE
RESTRICTION ON CORE POLITICAL
SPEECH IN THIS CASE.


No. 08-205

IN THE
Supreme Court of the United States

Citizens United, Appellant,
v.

Federal Election Commission, Appellee.

On Appeal from the United States District Court
for the District of Columbia

SUPPLEMENTAL BRIEF FOR AMICUS CURIAE
THE AMERICAN CIVIL RIGHTS UNION
IN SUPPORT OF APPELLANT CITIZENS UNITED

Peter Ferrara

Counsel of Record
American Civil Rights Union
1232 Pine Hill Rd.
McLean, VA 22101
703-582-8466

Counsel for Amicus Curiae
American Civil Rights Union

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002


8

associations do not raise a sufficient threat of
corruption to justify prohibition.” 494 U.S. at 682.

The facts of this case clearly show no quid pro quo
or appearance of any such guid pro quo. If the FEC
had not prevented Citizens United from distributing
and broadcasting the movie about Hillary Clinton
during the Democratic party primaries last year, it is
inconceivable that President Obama would now feel
in any way obligated to repay the ideologically
conservative Citizens United with policy
accommodations to those conservative views or other
political favors.

The majority in Austin v. Michigan Chamber of
Commerce, 494 U.S. 652 (1990) saw a compelling
state interest justifying restrictions on political
speech to counter,

“the corrosive and distorting effects of immense
aggregations of wealth that are accumulated with
the help of the corporate form and that have little
or no correlation to the public’s support for the
corporation’s political ideas.”

494 U.S. at 660. But Citizens United is a modest
non-profit with no such “immense aggregation of
wealth.” Moreover, the entire corporate treasury of
Citizen’s United does come precisely from those who
support the corporation’s political ideas, because the
corporation was formed precisely to advance a
particular, stated, ideological viewpoint. The
independent expenditures here, therefore, are the
same as the independent expenditures in NCPAC,


draw a line in permissible regulation between
payments to candidates (‘contributions’) and
payments or expenditures to express one’s views
(independent expenditures).”

494 U.S. at 702. Kennedy also stated,

In NCPAC...[wle distinguished between the
campaign contributions at issue in FEC v,
National Right to Work Committee, supra, and
independent expenditures, by noting that while
‘the compelling governmental interest in
preventing corruption supported the restriction of
the influence of political war chests funded
through the corporate form’ with regard to
candidate campaign contributions, a similar
finding could not be supported for independent
expenditures. NCPAC, supra, at 500-501.”

494 U.S. at 705.
Similarly, Scalia stated in dissent in Austin,

“Independent advocacy, moreover, unlike
contributions, ‘may well provide little assistance
to the candidate’s campaign and indeed may
prove counterproductive,’ thus reducing the
danger that it will be exchanged ‘as a quid pro
quo for improper commitments from the
candidate.”

494 U.S. at 683-684 (quoting Buckley 424 U.S. at 47).
That is why, as Scalia also said in Austin, this Court
held in Buckley “that independent expenditures to
express the political views of individuals and


ARGUMENT

L THIS CASE INVOLVES CORE
POLITICAL SPEECH, ENTITLED TO
THE HIGHEST POSSIBLE
CONSTITUTIONAL PROTECTION.

This case involves a movie discussing the public
record of Hillary Clinton, a top candidate for
President of the United States at the time the movie
was to be distributed. It is the cinematic equivalent
of an opinion commentary in a newspaper or
magazine, or a book presenting political opinions.
See Jenkins v. Georgia, 418 U.S. 153 (1974); Board of Educ.
Island Trees Union Free School Dist. No. 26 v. Pico, 457
U.S. 853 (1982). As such, it involves core political
speech at the very heart of the First Amendment.

The freedom to engage in such core political
speech has been recognized since the Founding as a
fundamental foundation of our democracy. The
freedom to engage in such speech is exactly what the
First Amendment is all about. Such political speech,
not pornography or nude dancing, is the core concern
of the Amendment, and consequently entitled to its
highest possible protection. E.g., Buckley v. Valeo,
424 U.S. 1 (1976); FEC v. Massachusetts Citizens for
Life, Inc., 479 U.S. 238 (1986)(“MCFL’); First
National Bank of Boston v. Bellotti, 435 U.S. 765
(1978); McIntyre v. Ohio Elections Commission, 514
U.S. 334 (1995); Boos v. Barry, 485 U.S. 312 (1988);
FEC v. Wisconsin Right to Life, 1278. Ct. 2652
(2007); FEC v. National Conservative Political Action


iii

Williams v. Rhodes, 393 U.S. 23 (1968)..........6:0000:5
Other Authorities

The Bipartisan Campaign Reform Act of 2002......... 5

U.S. Constitution, First Amendment....


11

interchange of ideas for the bringing about of
political and social changes desired by the people.’
The First Amendment’s protection against
governmental abridgement of free expression
cannot properly be made to depend on a person’s
financial ability to engage in public discussion.”

424 U.S. at 48-49 (citations omitted). This Court
reiterated this same principle just last term in Davis
v. FEC, 128 S. Ct. 2759, 2771 (2008), holding that
“the interest in equalizing the relative ability of
individuals and groups to influence the outcome of
elections cannot support a cap on expenditures for
express advocacy of the election or defeat of
candidates.”

Kennedy added in dissent in Austin, “The
regulatory mechanism adopted by the Michigan
statute is aimed at reducing the quantity of political
speech, a rationale endorsed by today’s majority.
The First Amendment rests on quite the opposite
theory.” 494 U.S. at 704. Kennedy also stated,

“The suggestion that the government has an
interest in shaping the political debate by
insulating the electorate from too much exposure
to certain views is incompatible with the First
Amendment. ‘[T]he people in our democracy are
entrusted with the responsibility for judging and
evaluating the relative merits of conflicting
arguments.’ Id., at 791.”

494 U.S. at 706 (Quoting Bellotti).


13

doesn’t force anyone to do anything. If it is accepted
by a majority of listeners, then the speech is highly
desirable from a social perspective, and if it is
rejected by a majority, then there is no harm. As
this Court said in Belloti, “[T]he fact that advocacy
may persuade the electorate is hardly a reason to
suppress it.” 435 U.S. at 790. Scalia added in
dissent in Austin,

“The advocacy of such entities that have ‘amassed
great wealth’ will be effective only to the extent
that it brings to the people’s attention ideas
which — despite the invariably self-interested and
probably uncongenial source — strike them as
true.”

494 U.S. at 684.

Another fundamental error of Austin is that the
political and policy views of corporate interests are
not monolithic. Indeed, a sophisticated economic
understanding recognizes that corporate interests
are always jockeying for competitive advantage over
one another by law, known as “economic rents.”
Much if not most corporate advocacy is aimed at
achieving such artificial advantages through law and
politics, rather than advancing a general “corporate
interest.” The failure to recognize this reflects an
unsophisticated, “neo-Marxist” mindset assuming
that corporate interests will always be advancing a
mythical “class interest,” rather than what they see
as their narrow individual corporate interests.

These two reasons, and the focus of the First
Amendment on maximizing rather than equalizing


ii

TABLE OF AUTHORITIES

Cases Page
Austin v. Michigan Chamber of Commerce,

494 U.S. 652 (1990)... ce eseeceeeee cesses serene PASSIID
Boos v. Barry, 485 U.S. 312 (1988)......ccecceeeesee 4
Buckley v. Valeo, 424 U.S. 1 (1976)..........4,5,6,8, 10
Board of Educ. Island Trees Union Free School
Dist. No. 26 v. Pico, 457 U.S. 853 (1982).........0006 4
Davis v. FEC, 128 S. Ct. 2759, 2771 (2008)..........11

FCC v. League of Women Voters of California,
468 U.S. 364 (1984)... eee eee eeeeetee ces eeeneeeneaes 14

FEC v. Massachusetts Citizens for Life, Inc.,
479 U.S. 238 (1986)..

FEC v. Wisconsin Right to Life,

127 S. Ct. 2652 (2007).......cceccecceseneceeseeeeeeeneeee 4,5,6
FEC v. National Conservative Political Action
Committee, 470 U.S. 480 (1985)......cseceecceeeees 4-5,6,8
First National Bank of Boston v. Bellotti,

435 U.S. 765 (1978)......cccecccesscceeeeseeecesaeecees 4,5,13
Jenkins v. Georgia, 418 U.S. 153 (1974)..........0000 4

McIntyre v. Ohio Elections Commission,
514 ULS. 334 (1995)... sce cceeceeeeeeeesseeeeetereneeee 4


TABLE OF CONTENTS
Table of Authorities...............ccccecce cee eeeeeee eee ee eee ceeenenee i
Interest of Amicus Curiae................00ccceeeeeeeeeeeeeeeee eee 1
Summary of Argument................0cccsseseeeeeeseeeeeeeeeeeen 2
ATQUMENL...... 0. cece cece eee ee eee eee een eeeeecneenetee eee eenees! 4

L THIS CASE INVOLVES CORE
POLITICAL SPEECH, ENTITLED TO
THE HIGHEST POSSIBLE
CONSTITUTIONAL PROTECTION........ 4

II. | THERE IS NO COMPELLING STATE
INTEREST TO JUSTIFY THE
RESTRICTION ON CORE POLITICAL
SPEECH IN THIS CASE...............:00000+ 5

Il. .AUSTINSHOULD BE OVERRULED
BECAUSE IT IS NOT CONSISTENT
WITH THE FIRST AMENDMENT’S
PROTECTIONS FOR CORE POLITICAL


9

which this Court held could not be banned under the
First Amendment.

Consequently, while we do not agree that the
state interest advanced in Austin can justify
restricting political speech, that interest in any event
is not present in this case. As Scalia said in dissent
in Austin,

“If narrow tailoring means anything, surely it
must mean that action taken to counter the effect
of amassed ‘war chests’ must be targeted, if
possible, at amassed ‘war chests.’ And surely
such targeting is possible...”

494 USS. at 688.

For these reasons, there is no compelling state
interest to justify the restriction on core political
speech in this case.

Ill. AUSTINSHOULD BE OVERRULED
BECAUSE IT IS NOT CONSISTENT
WITH THE FIRST AMENDMENT’S
PROTECTIONS FOR CORE POLITICAL
SPEECH.

Austin involved a Michigan campaign finance
statute prohibiting corporations from using their
general corporate treasury funds for contributions or
independent expenditures in support of, or in
opposition to, any candidate in state elections. The
Michigan Chamber of Commerce, a non-profit
corporation, wanted to pay for a newspaper ad
supporting a candidate for the Michigan House of


12

Similarly, Scalia stated in dissent in Austin
regarding the compelling interest argument of the
majority,

“This is not an argument that our democratic
traditions allow — neither with respect to
individuals associated in corporations nor with
respect to other categories of individuals whose
speech may be ‘unduly’ extensive (because they
are rich) or ‘unduly’ persuasive (because they are
movie stars) or ‘unduly respected’ (because they
are clergymen). The premise of our system is that
there is no such thing as too much speech — that
the people are not foolish but intelligent, and will
separate the wheat from the chaff.”

494 U.S. at 695.

Indeed, if this concern of the Austin majority is a
valid basis for restricting core political speech, then
as Scalia asks in dissent in Austin, “Why is it
perfectly all right if advocacy by an individual
billionaire is out of proportion with ‘actual public
support’ for his positions?” 494 U.S. at 685. As
Scalia adds, the state interest in balancing speech
advanced by the Austin majority cannot be
“sufficient justification for the suppression of
political speech, unless one thinks it would be lawful
to prohibit men and women whose net worth is above
a certain figure from endorsing political candidates.”
494 U.S. at 680.

The most fundamental error of the Austin
majority is that what is involved here is just speech,
which can be accepted or rejected by the listener, and