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 

--------------------------------- ♦ --------------------------------- 

BRIEF OF AMICUS CURIAE FIDELIS 

CENTER FOR LAW AND POLICY AND 

CATHOLICVOTE.COM IN SUPPORT OF THE 

APPELLANT ON SUPPLEMENTAL QUESTION 

--------------------------------- ♦ --------------------------------- 

PATRICK T. GILLEN

Counsel of Record

FIDELIS CENTER FOR LAW

AND POLICY

190 South LaSalle Street 

Suite 2130 

Chicago IL 60603 

(312) 276-5109 

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
i 

QUESTION PRESENTED

As per the Court’s order entered June 29, 2009, this 

amicus curiae addresses whether this Court should 

overrule Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990). 
ii 

TABLE OF CONTENTS 

Page 

QUESTION PRESENTED ..................................... i 

TABLE OF CONTENTS ......................................... ii 

TABLE OF AUTHORITIES ................................... iii 

INTEREST OF THE AMICI .................................. 1 

 Austin Should Be Overruled Because It Defies 

The Gravamen Of First Amendment Precedent ................................................................... 2 

CONCLUSION ....................................................... 16 
iii 

TABLE OF AUTHORITIES 

Page 

CASES

Austin v. Mich. State Chamber of Commerce,

494 U.S. 652 (1990) ......................................... passim

BE&K Construction Co. v. NLRB, 536 U.S. 516 

(2002) ....................................................................... 12 

Bigelow v. Virginia, 421 U.S. 809 (1975) ..................... 3 

Bill Johnson’s Restaurants, Inc. v. NLRB, 461 

U.S. 731 (1983) ........................................................ 13 

Board of County Commissioners, Wabaunsee 

County, Ka. v. Umbehr, 518 U.S. 668 (1996)...... 8, 10 

Board of Educ., Island Trees Union Free School 

Dist. No. 26 v. Pico, 457 U.S. 853 (1982) .................. 4 

Board of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217 (2000) ..................................... 11 

Bose Corp. v. Consumers Union, 466 U.S. 485 

(1984) ......................................................................... 5 

Brentwood Academy v. Tenn. Secondary School 

Athletic Assoc., 531 U.S. 288 (2001) ......................... 9 

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. 

Comm’n, 447 U.S. 557 (1980) ................................. 15 

Citizens Publishing Co. v. United States, 394 

U.S. 131 (1969) .......................................................... 5 

Cohen v. Cal., 403 U.S. 15 (1971) ............................... 11 

Davis v. Federal Election Commission, 128 

S.Ct. 2759 (2008) ..................................................... 10 
iv 

TABLE OF AUTHORITIES – Continued 

Page 

Eu v. San Francisco City, Democratic Central 

Comm., 489 U.S. 221 (1989) ..................................... 7 

FCC v. League of Women Voters of Cal., 468 

U.S. 364 (1984) .......................................................... 8 

First Nat’l Bank v. Bellotti, 435 U.S. 765 

(1978) ....................................................... 2, 4, 5, 7, 12 

Florida Bar v. Went For It, Inc., 515 U.S. 618 

(1995) ....................................................................... 15 

Follett v. Town of McCormick, 321 U.S. 573 

(1944) ....................................................................... 14 

Friedman v. Rogers, 440 U.S. 1 (1979) ...................... 15 

Garrison v. Louisiana, 379 U.S. 64 (1964) .................. 7 

Healy v. James, 408 U.S. 169 (1972) ........................ 8, 9 

Hustler Magazine v. Falwell, 485 U.S. 46 

(1988) ....................................................................... 14 

Illinois ex rel. Madigan v. Telemarketing Assocs.,

538 U.S. 600 (2003) ................................................. 14 

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 

(1952) ....................................................................... 12 

Lamb’s Chapel v. Center Moriches Union Free 

School Dist., 508 U.S. 384 (1993) ............................. 8 

Legal Service Corporation v. Velazquez, 531 

U.S. 533 (2001) .................................................... 4, 10 

McDonald v. Smith, 472 U.S. 479 (1985) .................. 13 

Miami Herald Pub. Co., Div. of Knight Newspapers, Inc. v. Tornillo, 418 U.S. 241 (1974) .......... 13 
v 

TABLE OF AUTHORITIES – Continued 

Page 

Milkovich v. Lorain Journal Co., 497 U.S. 1 

(1990) ....................................................................... 14 

Mills v. Alabama, 384 U.S. 214 (1966) ........................ 7 

NAACP v. Claiborne Hardware Co., 458 U.S. 

886 (1982) ................................................................ 13 

New York Times, Inc. v. Sullivan, 376 U.S. 254 

(1964) ....................................................................... 15 

O’Hare Truck Service v. City of Northlake, 518 

U.S. 712 (1996) ...................................................... 8, 9 

Pacific Gas & Electric Co. v. Public Utilities 

Com., 475 U.S. 1 (1988) .......................................... 13 

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) ....................... 15 

Professional Real Estate Investors, Inc. v. Columbia Pictures Indus. Inc., 508 U.S. 49 

(1993) ....................................................................... 13 

Reno v. American Civil Liberties Union, 521 

U.S. 844 (1997) ........................................................ 11 

Riley v. National Federation of Blind of N.C.,

Inc., 487 U.S. 781 (1988) ......................................... 13 

Rumsfeld v. Forum For Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) ............... 8, 11 

Rutan v. Republican Party of Illinois, 497 U.S. 

62 (1990) .................................................................... 8 

Santa Clara County v. Southern P. R. Co., 118 

U.S. 394 (1886) .......................................................... 2 
vi 

TABLE OF AUTHORITIES – Continued 

Page 

Schaumburg v. Citizens for Better Env’t, 444 

U.S. 620 (1980) ........................................................ 14 

Simon & Schuster, Inc. v. New York State 

Crime Victims Board, 502 U.S. 105 (1991) ...... 2, 3, 4 

Texas v. Johnson, 491 U.S. 397 (1989) ....................... 11 

The Florida Star v. B.J.F., 491 U.S. 524 (1989) ........ 14 

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 

(1976) ................................................................... 4, 15 

WatchTower Bible and Tract Society of New 

York, Inc. v. Village of Stratton, 536 U.S. 150 

(2002) ....................................................................... 14 

West Virginia Bd. of Ed. v. Barnette, 319 U.S. 

624 (1943) ................................................................ 14 

Wooley v. Maynard, 430 U.S. 705 (1977) ................... 14 

Zauderer v. Office of Disciplinary Counsel, 471 

U.S. 626 (1985) ........................................................ 15 

MISCELLANEOUS

U.S. Const. amend. I .......................................... passim

Susan W. Dana, “Restrictions On Corporate 

Spending On State Ballot Measure Campaigns: A Re-Evaluation of Austin v. Michigan Chamber of Commerce,” 27 Hastings 

Const. L.Q. 309, 354-59 (2000) ............................... 10 
1 

INTEREST OF THE AMICI1

Fidelis Center For Law And Policy (“Fidelis”) is 

a not-for-profit public interest organization that is 

dedicated to the sanctity of life, religious liberty, 

marriage and family. In an effort to protect and 

promote these fundamental rights and institutions, 

Fidelis engages in public education and public 

interest litigation. 

 Fidelis submits this brief on behalf of itself and 

those who support CatholicVote.org, a nonpartisan 

voter education program devoted to building a culture 

that embodies in its law respect for the fundamental 

rights and institutions described above. Members of 

CatholicVote.org seek to serve their country by 

supporting educational activities designed to promote 

an authentic understanding of ordered liberty and 

the common good as seen in light of the Roman 

Catholic religious tradition. See www.youtube.com/ 

catholicvote. Fidelis submits this brief in support of 

Citizens United because it believes that this Court’s 

decision in Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990) has a chilling effect upon speech 

and undercuts discussion about law and policy in a 

way that is fundamentally inconsistent with First 

Amendment jurisprudence. 

 1 No counsel for a party authored this brief in whole or in 

part, and no counsel or party made a monetary contribution 

intended to fund the preparation or submission of this brief. No 

person other than amicus curiae, its members, or its counsel 

made a monetary contribution to its preparation or submission. 
2 

Austin Should Be Overruled Because It Defies 

The Gravamen Of First Amendment Precedent.

Fidelis Center For Law And Policy respectfully 

submits that this Court’s decision in Austin v. Mich. 

State Chamber of Commerce, 494 U.S. 652 (1990), 

represents a deeply flawed departure from well 

established principles of First Amendment jurisprudence. As long ago as Santa Clara County v. Southern 

P. R. Co., 118 U.S. 394 (1886), this court recognized 

that corporations were entitled to constitutional 

protection. About one hundred years later, in First 

Nat’l Bank v. Bellotti, 435 U.S. 765 (1978), this Court 

extended to corporations the protection provided by 

the First Amendment, reasoning that “the inherent 

worth of . . . speech in terms of its capacity for 

informing the public does not depend upon the 

identity of its source.” Id. at 777. Austin departed 

from this obvious truth by embracing the farfetched 

notion that speech from a particular source (corporate) about a particular subject (views on political 

candidates) has “corrosive and distorting effects” on 

public discourse. Id. at 660. 

Austin contradicts the great weight of First 

Amendment precedent and should be overruled. 

First, Austin cannot be squared with precedent 

holding that the First Amendment prohibits laws that 

burden speech based on the identity of the speaker 

and content of speech. In Simon & Schuster, Inc. v. 

New York State Crime Victims Board, 502 U.S. 105 

(1991), this Court struck down a state law requiring 

 
3 

criminals who derived income from works about their 

crime to pay funds into an escrow account designed to 

compensate victims. This Court observed that “[a] 

statute is presumptively inconsistent with the First 

Amendment if it imposes a financial burden on 

speakers because of the content of their speech,” 

noting that “in the context of financial regulation . . . 

the government’s ability to impose content-based 

burdens on speech raises the specter that the 

government may effectively drive certain ideas or 

viewpoints from the marketplace.” Id. at 115. 

Austin should be overruled because it imposes a 

financial penalty on corporate speakers based on the 

content of their speech, contradicting a principle “so 

engrained in . . . First Amendment jurisprudence . . . 

[and] so ‘obvious’ as to not require explanation.” 

Simon & Schuster, 502 U.S. at 115. In this regard, 

this Court must reject any claim that Austin falls 

outside the rule in Simon & Schuster because Austin

targets speech deemed “corrupt.” Although Austin

purports to focus on “corruption”, it looks to nothing 

more than the identity of the speaker and the content 

of the speech. Just as only criminals were subject to 

the regulation at issue in Simon & Schuster, only 

corporations are subject to the regulation here. It is 

fundamental that government “cannot foreclose the 

exercise of constitutional rights by mere labels,” see, 

Bigelow v. Virginia, 421 U.S. 809, 826 (1975), and 

government cannot satisfy its burden of justifying 

regulation on expressive activity by means of a 

circular argument which defines the state’s interest 
4 

with reference to nothing more than the content of 

the speech that is regulated. See Simon & Schuster, 

502 U.S. at 119-20; see also, Legal Service Corporation v. Velazquez, 531 U.S. 533, 547 (2001) (reasoning 

that “Congress cannot recast a condition on funding 

as a mere definition of its program in every case, lest 

the First Amendment be reduced to a simple 

semantic exercise.”). 

Austin cannot be squared with another axiom 

of First Amendment jurisprudence, i.e., the First 

Amendment protects speech (regardless of its source) 

in order to protect the rights of the willing listener. 

This Court has long recognized that the protection 

provided to speech by the First Amendment includes 

the right to listen for “[i]t would be a barren marketplace of ideas that had only sellers and no buyers.” 

See, e.g., Board of Educ., Island Trees Union Free 

School Dist. No. 26 v. Pico, 457 U.S. 853, 866-67 

(1982). In Virginia State Bd. of Pharmacy v. Virginia 

Citizens Consumer Council, Inc., 425 U.S. 748 (1976), 

this Court relied upon a wide array of prior decisions 

protecting speech with reference to the interests of 

the willing listener to protect speech about matters of 

public interest. See Virginia State Bd. of Pharmacy, 

425 U.S. at 756-57. 

Austin defies this axiomatic First Amendment 

principle. Whereas Bellotti refused to ban speech 

based on the identity of the speaker, because “the 

inherent worth of . . . speech in terms of its capacity 

for informing the [listening] public does not depend 

upon the identity of its source, whether corporation, 
5 

association, union, or individual,” Bellotti, 435 U.S. at 

777, Austin failed to give this vital interest (or the 

voters) any credit, approving a per se ban of speech 

deemed corrupting based on nothing more than its 

source (corporate) and its content (concerning political candidates). Austin should be overruled because 

it disregarded the willing listener’s interest in hearing speech by corporations about political candidates, 

and more broadly, failed to acknowledge that the 

First Amendment places responsibility for discerning 

true from false in the people (not officeholders). See, 

e.g., Citizens Publishing Co. v. United States, 394 U.S. 

131, 139-40 (1969) (The First Amendment “rests on 

the assumption that the widest possible dissemination of information from diverse and antagonistic 

sources is essential to the welfare of the public. . . .”); 

Bose Corp. v. Consumers Union, 466 U.S. 485, 503-04 

(“The First Amendment presupposes that the freedom 

to speak one’s mind is not only an aspect of individual 

liberty . . . but also is essential to . . . the vitality of 

society as a whole.”). 

Austin’s stripping of First Amendment protection 

from corporate speech about political candidates is 

anomalous for another reason: it makes First Amendment protection turn on whether speech implicates 

economic interests. In Austin this Court accepted a 

claim that “the resources in the treasury of a business 

corporation . . . reflect . . . the economically motivated 

decisions of investors and customers,” See Austin, 

494 U.S. at 659, to find a new kind of corruption, 

“the corrosive and distortive effects of immense 
6 

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.” Id. at 660. 

 But the hostility to economic motivations that 

justifies the total ban on corporate speech authorized 

under Austin is at odds with the longstanding 

case law converging around that point that speech 

does not lose protection because it can be connected 

to economic considerations. See Virginia State Board 

of Pharmacy, 425 U.S. at 761-66 (citing a wide variety 

of cases extending First Amendment protection to 

speech without regard for pecuniary considerations 

involved). Austin’s definition of corruption is grounded 

in nothing more than the fact that corporate speech is 

linked to the economic interests of shareholders. 

Austin, 494 U.S. at 559-60. In this way, Austin makes 

First Amendment protection turn on the link between 

speech and profit-motive in a manner wholly inconsistent with the great weight of this Court’s precedent 

on point, which has consistently held that speech 

does not lose First Amendment protection because it 

is linked to pecuniary considerations. 

 The per se ban on speech too closely wed to 

economic motivations blessed by Austin gives rise to 

an irony that provides yet another way Austin cuts 

against the grain of First Amendment jurisprudence. 

This Court has long recognized that “[w]hatever 

differences may exist about the interpretations of the 

First Amendment, there is practically universal 

agreement that a major purpose of that Amendment 
7 

was to protect free discussion of governmental 

affairs.” Mills v. Alabama, 384 U.S. at 218. “For 

speech concerning public affairs is more than selfexpression; it is the essence of self-government.” 

Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). For 

this reason, this Court has stated that “the First 

Amendment has its fullest and most urgent application to speech uttered during a campaign for 

political office.” Eu v. San Francisco City, Democratic 

Central Comm., 489 U.S. 221, 23 (1989). 

Bellotti observed this architectonic principle of 

First Amendment law by protecting corporate speech 

about political matters in the interest of informed 

public discourse, but Austin disregards the principle 

by categorically excluding views about candidates 

advanced by corporations on the grounds such views 

are driven by economic motivations. The odd result 

produced by Austin’s animosity toward economic 

interest is that the First Amendment provides no 

protection to core political speech by corporations, but 

it provides greater protection to corporate speech 

about matters further removed from free speech 

concerns at the core of the First Amendment – and 

more tightly wed to economic motivations. Austin

should be overruled because it inverts the hierarchy 

of values that lies at the heart of current First 

Amendment jurisprudence. 

Austin also legitimizes an unconstitutional condition that is inimical to First Amendment freedom. 

As this Supreme Court has long held, “[w]hat the 

First Amendment precludes the government from 
8 

commanding directly, it also precludes the government from accomplishing indirectly.” Rutan v. Republican Party of Illinois, 497 U.S. 62, 77-78 (1990). 

“[T]his principle, known as the unconstitutional 

conditions doctrine,” see Rumsfeld v. Forum For 

Academic & Institutional Rights, Inc., 547 U.S. 47, 59 

(2006), has a simple yet compelling rationale: “[i]f the 

government could deny benefits to a person because 

of his constitutionally protected speech or associations, his exercise of those freedoms would be in effect 

penalized and inhibited. . . . Such interference with 

constitutional rights is impermissible.” O’Hare Truck 

Service v. City of Northlake, 518 U.S. 712, 717 (1996). 

In keeping with this principle, this Court has 

repeatedly struck down efforts to burden activity 

protected by the First Amendment, justified by claims 

that the restriction is simply a condition of eligibility 

for government benefits. See, e.g., Board of County 

Commissioners, Wabaunsee County, Ka. v. Umbehr, 

518 U.S. 668, 675, 680 (1996) (noting that “government may not deny a benefit to a person on a basis 

that infringes his constitutionally protected . . . freedom of speech,” listing cases dealing with “users of 

public facilities and recipients of small government 

subsidies . . . ” and citing Lamb’s Chapel v. Center 

Moriches Union Free School Dist., 508 U.S. 384 

(1993); Healy v. James, 408 U.S. 169 (1972) (access to 

campus facilities for student meetings and activities); 

FCC v. League of Women Voters of Cal., 468 U.S. 364 

(1984) (government subsidy for private speech). 
9 

Austin should be overruled because it amounts to 

an unconstitutional condition. In Austin this Court 

allowed a total ban on corporate speech about 

political candidates justified with reference to benefits conferred on corporations by state law. Austin, 

494 U.S. at 658-59. In so doing, Austin endorsed what 

must be seen as an unconstitutional condition 

because the benefits of incorporating now come at a 

price, i.e., shareholders are not free to use their 

corporate treasury to fund political speech about 

candidates. Such a result epitomizes the concern that 

“[i]f the government could deny benefits to a person 

because of . . . constitutionally protected speech or 

associations . . . exercise of those freedoms would be 

in effect penalized and inhibited,” see, O’Hare Truck 

Service, 518 U.S. 712, 717 (1996), but defies the 

principle that “[s]uch interference with constitutional 

rights is impermissible.” Id. In this regard, it makes 

no difference that state law gives and federal law 

takes away because when dealing with constitutional 

rights of the first order this Court is “not free to 

discard practical realities.” See Healy, 408 U.S. at 

183; see also, Brentwood Academy v. Tenn. Secondary 

School Athletic Assoc., 531 U.S. 288 (2001) (noting 

that “if . . . formalism were the sine qua non of state 

action, the doctrine would vanish owing to the ease 

and inevitability of its evasion, and for just that 

reason formalism has never been controlling.”). 

Austin unconstitutionally justifies forfeiture of fundamental First Amendment rights with reference to 

benefits extended by law. 
10 

 In this regard, Austin has pernicious and far 

reaching implications for free speech that will yield a 

bitter harvest if the decision is left standing. If the 

conception of corruption legitimated by Austin is 

sound, then government may restrict the First 

Amendment activity of a vast range of business 

entities and individuals which receive similar benefits under state law, as so many do. See Susan W. 

Dana, “Restrictions On Corporate Spending On State 

Ballot Measure Campaigns: A Re-Evaluation of 

Austin v. Michigan Chamber of Commerce,” 27 

Hastings Const. L.Q. 309, 354-59 (2000) (noting that 

a variety of business entities receive benefits the 

same or similar to those extended to corporations). 

This fear would be a reality for wealthy individuals if 

it had not been foreclosed by Davis v. Federal Election 

Commission, 128 S.Ct. 2759 (2008) (striking down the 

“millionaires amendment”). But the decision in Davis

simply shows that Austin is flawed. For it is painfully 

clear that Austin can only be squared with Davis by 

elevating (corporate) form above substance contrary 

to this Court’s longstanding admonition that when 

dealing with fundamental rights it must avoid 

“[d]etermining constitutional claims on the basis of 

. . . formal distinctions, which can be manipulated 

largely at the will of the government agencies 

concerned. . . .” Board of County Commissioners, 

Wabaunsee County, Kansas, v. Umbehr, 518 U.S. 668, 

679-80 (1996) (holding that eligibility for government 

contracts cannot be conditioned on political fealty and 

citing cases for the proposition that the law must 

focus on substance not form); see also Legal Service 
11 

Corporation, 531 U.S. 533, 547 (2001) (holding that 

Congress cannot recast a condition on funding as a 

mere definition of its program in every case, lest the 

First Amendment be reduced to a simple semantic 

exercise). Austin should be overruled because it 

endorses a pernicious principle that can be used to 

eviscerate the First Amendment rights of all 

speakers. 

 More broadly, Austin’s effort to justify a gag on 

corporate speech out of solicitude for dissenting 

shareholders contradicts the approach this Court 

takes in other areas of First Amendment law implicating like concerns. In a long line of cases this Court 

has consistently refused to restrict the expression of 

some based on the objections of others. In the context 

of government speech, this Court has recognized that 

government must be permitted to speak despite the 

objection of dissenting citizens, see, e.g., Rumsfeld, 

547 U.S. at 64, because “[w]hen the government 

speaks . . . it is, in the end, accountable to the electorate and the political process for its advocacy. . . .” 

Board of Regents of Univ. of Wis. Sys. v. Southworth, 

529 U.S. 217, 235 (2000). Behind this principle is the 

more general one: government must not empower a 

heckler’s veto. See, e.g., Texas v. Johnson, 491 U.S. 

397 (1989) (striking down a law that prohibited flag 

burning); Cohen v. Cal., 403 U.S. 15, 22 (1971); e.g., 

Reno v. American Civil Liberties Union, 521 U.S. 844, 

880 (1997) (striking down restriction on transmission 

of indecent material to persons under 18 on grounds 

it effectively gave opponents of indecent speech a 
12 

heckler’s veto); Joseph Burstyn, Inc. v. Wilson, 343 

U.S. 495, 505 (1952) (striking down regulation empowering board to restrict display of movies deemed 

sacrilegious). 

Austin should be overruled because it defies the 

principle that government should not use its power to 

distort private decisions about whether to speak and 

what to say. Whereas Bellotti respects the principle 

based on a realistic appreciation for shareholder 

democracy, see Bellotti, 435 U.S. at 795, Austin gags 

corporate speech by effectively giving supposedly 

dissenting members a heckler’s veto. See Austin, 494 

U.S. at 661-63 (justifying gag rule based on reluctance of dissenting members to withdraw from 

corporation). Austin should be overruled because it 

allows supposedly dissenting members to exercise a 

heckler’s veto – and the result is a total gag of 

corporate speech about political candidates that is 

anathema to the First Amendment. 

 More generally, Austin’s singling-out of corporations for disfavored treatment under the First 

Amendment presents a radical departure from many 

other strains of First Amendment jurisprudence 

which treat corporations like other speakers. 

• This Court has treated corporations and other 

speaks alike when evaluating burdens on 

petitioning protected by the First Amendment. 

See BE&K Construction Co. v. NLRB, 536 U.S. 

516, 537 (2002) (employer’s unsuccessful retaliatory lawsuit against unions could not serve as a 

basis for imposition of liability for unfair labor 
13 

practices absent a showing that the lawsuit was 

objectively baseless); see also, Professional Real 

Estate Investors, Inc. v. Columbia Pictures Indus. 

Inc., 508 U.S. 49 (1993) (barring antitrust 

liability for litigation because suit was both objectively and subjectively baseless); Bill Johnson’s 

Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 

(lawsuit brought for improper motive cannot be 

enjoined provided it is not a sham) (1983); cf. 

NAACP v. Claiborne Hardware Co., 458 U.S. 886 

(1982) (no personal liability for torts committed 

by fellow protestors absent specific intent via 

authorization, direction, ratification of specific 

tortious activity, incitement of imminent lawless 

action, or specific instructions to carry out violent 

acts or threats); McDonald v. Smith, 472 U.S. 

479, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985) (no 

tort liability for petition to President absent 

reckless disregard for the truth). 

• This court has extended the same First 

Amendment protection from coerced speech to 

corporations and other speakers alike. Pacific 

Gas & Electric Co. v. Public Utilities Com., 475 

U.S. 1, 21 (1988) (holding it was a violation of the 

corporation’s First Amendment rights and that 

the freedom from compelled speech extended 

equally from individuals to corporations); Riley v. 

National Federation of Blind of N.C., Inc., 487 

U.S. 781, 797-98 (1988) (compelled disclosure of 

fee arrangement violated First Amendment); 

Miami Herald Pub. Co., Div. of Knight Newspapers, Inc. v. Tornillo, 418 U.S. 241, 258 (1974) 

(holding that a statute forcing a newspaper 

corporation to publish editorial replies was a 

violation of the corporation’s First Amendment 
14 

rights); cf. Wooley v. Maynard, 430 U.S. 705, 717 

(1977) (compelled display of “Live Free or Die” 

violated First Amendment); West Virginia Bd. of 

Ed. v. Barnette, 319 U.S. 624, 642 (1943) (state 

law compelling recitation of Pledge of Allegiance 

violated First Amendment). 

• This Court has treated corporations like other 

speakers with respect to charitable solicitations. 

See, Illinois ex rel. Madigan v. Telemarketing 

Assocs., 538 U.S. 600, 611 (2003) (noting that 

“[t]he First Amendment protects the right to 

engage in charitable solicitation,” and extending 

First Amendment protection to corporations 

engaged in charitable solicitation); Schaumburg 

v. Citizens for Better Env’t, 444 U.S. 620, 622 

(1980) (ordinance that required a permit for 

charitable solicitations by a non-profit corporation was constitutional); cf. WatchTower Bible 

and Tract Society of New York, Inc. v. Village of 

Stratton, 536 U.S. 150 (2002) (citing numerous 

cases); Follett v. Town of McCormick, 321 U.S. 

573 (1944). 

• This Court has applied the same First Amendment standards for defamatory speech to 

corporations and others. See Milkovich v. Lorain 

Journal Co., 497 U.S. 1, 14-17 (1990) (same 

applied to defamation claims involving corporations and other speakers); Hustler Magazine v. 

Falwell, 485 U.S. 46 (1988) (no liability for 

emotional distress based on protected speech 

absent heightened showing); The Florida Star v. 

B.J.F., 491 U.S. 524 (1989) (invalidating statute 

that allowed punishment for publication of 

lawfully obtained truthful information where 
15 

state law imposed a negligence per se standard 

for liability); New York Times, Inc. v. Sullivan, 

376 U.S. 254, 256, 283 (1964) (this court 

determined that a newspaper corporation must 

act with actual malice to be liable in a defamation suit). 

• This Court has treated corporations and individuals alike with respect to commercial speech. 

See Virginia State Bd. of Pharmacy v. Virginia 

Citizens Consumer Council, 425 U.S. 748, 753 

(1976) (focusing on content of the speech and not 

the identity of the speaker); Cent. Hudson Gas & 

Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 

571 (1980) (endorsing a system of prior restraints 

as an acceptable method of regulating commercial speech to ensure it is truthful, accurate, 

not misleading); cf. Florida Bar v. Went For It, 

Inc., 515 U.S. 618, 623-24 (1995) (“commercial 

speech . . . may freely be regulated if it is 

misleading”); Friedman v. Rogers, 440 U.S. 1, 9, 

(1979) (citations omitted) (“The First Amendment 

. . . does not prohibit the State from insuring that 

the stream of commercial information flows 

cleanly as well as freely.”); Zauderer v. Office of 

Disciplinary Counsel, 471 U.S. 626 (1985) (rule 

requiring disclosure to ensure information is not 

misleading is consistent with First Amendment);

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791 

(1992) (informed consent disclosure requirements 

are constitutional). 

 These varied lines of precedent illustrate some of 

the countless ways that Austin’s treatment of 

corporate speech about political candidates defies 
16 

long-standing strains of First Amendment jurisprudence that are well rooted in fundamental principles and mutually reinforcing. And what justifies 

this aberration? Nothing. Rather, Austin’s per se ban 

on certain speech by certain speakers represents a 

deeply flawed departure from this Court’s vigilant 

service to the First Amendment. 

--------------------------------- ♦ ---------------------------------

CONCLUSION 

As demonstrated above, Austin cannot be incorporated (dare we say) into that great body of First 

Amendment precedent that protects our freedom of 

speech about issues of public importance. Quite the 

contrary, Austin represents an outlying precedent 

inimical to the fundamental First Amendment values 

that have served the common good so well. This Court 

should use this case to overrule Austin. 

Respectfully submitted, 

PATRICK T. GILLEN

Counsel of Record 

FIDELIS CENTER FOR LAW AND POLICY

190 South LaSalle Street 

Suite 2130 

Chicago IL 60603 

P.O. Box 2709 

Chicago IL 60690 

Ph/fax: (312) 276-5109 

July 2009