i

No. 08-205 

In the 

Supreme Court of the United States 

CITIZENS UNITED, 

Appellant, 

v. 

FEDERAL ELECTION COMMITTEE, 

Appellee. 

On Appeal from 

 the United States District Court 

for the District of Columbia 

BRIEF AMICUS CURIAE OF CENTER 

FOR CONSTITUTIONAL JURISPRUDENCE 

IN SUPPORT OF APPELLANTS 

HONORABLE EDWIN MEESE III 

214 Massachusetts Avenue NE 

Washington, DC 20002 

Telephone: (202) 546-5400 

JOHN C. EASTMAN

Center for Constitutional 

 Jurisprudence 

c/o Chapman University 

 School of Law 

One University Drive 

Orange, California 92886 

ANTHONY T. CASO

Counsel of Record 

Law Office of Anthony T. Caso 

8001 Folsom Boulevard 

 Suite 100 

Sacramento, California 95826 

Telephone: (916) 386-4432 

Facsimile: (916) 307-5164 

Counsel for Amicus Curiae 

Center for Constitutional Jurisprudence
i

QUESTION PRESENTED 

 For the proper disposition of this case, should 

the Court overrule either or both Austin v. Michigan 

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

part of McConnell v. Federal Election Comm’n, 

540 U.S. 93 (2003), which addresses the facial 

validity of Section 203 of the Bipartisan Campaign 

Reform Act of 2002, 2 U.S.C. §441b? 
ii

TABLE OF CONTENTS 

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

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

IDENTITY AND 

INTEREST OF AMICUS CURIAE .......................1

SUMMARY OF ARGUMENT.....................................2

ARGUMENT ...............................................................2

I THE TYPE OF MESSAGE AT ISSUE IN 

THIS CASE—PORTRAYING AN ELECTED 

OFFICIAL IN A NEGATIVE LIGHT— 

FOLLOWS A LONG-STANDING PRACTICE 

IN AMERICAN POLITICS STRETCHING 

BACK TO THE ELECTION OF 1800..............2

II CONTROL OF MEDIA AND 

CONCENTRATION OF WEALTH 

ARE NOT NEW PHENOMENA......................6

CONCLUSION ............................................................9 
iii

TABLE OF AUTHORITIES 

Cases 

Austin v. Michigan Chamber of Commerce,

494 U.S. 652 (1990).............................................. 6-9 

Boy Scouts of America v. Dale,

530 U.S. 640 (2000)..................................................1 

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004)......................................................1 

Fed. Election Comm’n v. Nat’l Conservative 

Political Action Comm., 470 U.S. 480 (1985)..........6 

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ...................1 

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995)..................................................5 

New York Times Co. v. Sullivan,

376 U.S. 254 (1964).......................................... 4-5, 8 

Solid Waste Agency of N. Cook County 

v. United States Army Corps of Eng’rs,

531 U.S. 159 (2001)..................................................1 

United States v. Morrison, 529 U.S. 598 (2000).........1 

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) ......1 
iv

Other Authorities 

Ambrose, Douglas & Martin, Robert,

The Many Faces of Alexander Hamilton:

The Life and Legacy of America’s 

Most Elusive Founding Father (2006) ....................4 

History of Congress, February, 1799 ..........................4 

Knudson, Jerry W.,

Jefferson and the Press (2006).................................7 

Martin, Shannon E. & Hansen, Kathleen,

Newspapers of Record in a Digital Age (1998)........7 

Scher, Richard, The Modern Political Campaign:

Mudslinging, Bombast, and the 

Vitality of American Politics (1997) ........................3 

Rules of Court 

U.S. Sup. Ct. R. 37.3(a) ...............................................1 

 37.6 ...........................................................................1 

United States Constitution 

U.S. Const. amend. I .........................................passim 
1

IDENTITY AND 

INTEREST OF AMICUS CURIAE 

Amicus, Center for Constitutional Jurisprudence1

is dedicated to upholding the principles of the 

American Founding, including the important issue 

raised in this case of free expression on political 

issues. The Center is led by John Eastman, Dean of 

the Chapman University School of Law, and the 

Honorable Edwin Meese III serves as the honorary 

chair. The Board of Advisors for the Center includes 

a number of distinguished academics such as Hadley 

Arkes, Henry Jaffa, Douglas Kmiec, and John Yoo—

just to name a few. 

The Center participates in litigation defending 

the principles embodied in the United States 

Constitution. In addition to providing counsel for 

parties at all levels of state and federal courts, the 

Center has participated as amicus curiae before this 

Court in several cases including Hamdi v. Rumsfeld, 

542 U.S. 507 (2004); Elk Grove Unified Sch. Dist. v. 

Newdow, 542 U.S. 1 (2004); Zelman v. SimmonsHarris, 536 U.S. 639 (2002); Solid Waste Agency of N. 

Cook County v. United States Army Corps of Eng’rs, 

531 U.S. 159 (2001); Boy Scouts of America v. Dale, 

530 U.S. 640 (2000); and United States v. Morrison, 

529 U.S. 598 (2000). 

 

1 Pursuant to this Court’s Rule 37.3(a), all parties have 

consented to the filing of this brief. 

 Pursuant to Rule 37.6, Amicus Curiae affirms that no 

counsel for any 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

The Center believes the issue before this Court is 

one of special importance to political freedom 

protected by the First Amendment. 

SUMMARY OF ARGUMENT 

“Congress shall make no law . . . abridging the 

freedom of speech, or of the press.” The courts have 

agreed that at a minimum this restriction on 

congressional power prohibits attempts to 

criminalize criticism of the party in power. Amicus 

submits that it also prohibits attempts to criminalize 

speech on issues and candidates based on the 

identity of the speaker. Unequal distribution of 

wealth, concentration of media power, and negative 

campaigning existed since the founding of the 

republic. Yet there is no evidence that the First 

Amendment was originally understood to authorize 

Congress to prohibit speech related to an election 

based on any of these factors. 

ARGUMENT 

I 

THE TYPE OF MESSAGE AT ISSUE 

IN THIS CASE—PORTRAYING AN ELECTED 

OFFICIAL IN A NEGATIVE LIGHT— 

FOLLOWS A LONG-STANDING PRACTICE 

IN AMERICAN POLITICS STRETCHING 

BACK TO THE ELECTION OF 1800 

The appellee brief for the United States describes 

the content of the movie at issue as a negative 

portrayal of then Senator (now Secretary of State) 

Clinton, attacking her character and fitness for 

office. Appellee Brief at 19-20. In this, Secretary 

Clinton is in good company. American elections have 
3

rarely been defined by genteel discussion of 

philosophical issues. For instance, the presidential 

election campaign between John Adams and Thomas 

Jefferson, featured full-throated attacks of the type 

few politicians would dare make in today’s elections. 

One newspaper noted that if Jefferson were elected, 

“Murder, robbery, rape, adultery and incest will all 

be openly taught and practiced, the air will be 

soaked with blood, and the nation black with 

crimes.” Richard Scher, The Modern Political 

Campaign: Mudslinging, Bombast, and the Vitality 

of American Politics 31 (1997) (quoting the 

Connecticut Courant). Another writer published: 

Can serious and reflecting men look about 

them, and doubt that if Jefferson is elected, 

and the Jacobins get into authority, that those 

morals which protect our lives from the knife 

of the assassin—which guard the chastity of 

our wives and daughters from deduction and 

violence—defend our property from plunder 

and devastation, and shield our religion from 

contempt and profanation, will not be 

trampled upon and exploded? 

Id. 

Adams too was the target of attacks with one 

writer describing him as a “fool, hypocrite, criminal, 

and tyrant . . . his presidency was one ‘continued 

tempest of malignant passions.’” Id. 

The rhetorical attacks continued unabated after 

the election. The famous duel between Alexander 

Hamilton and Aaron Burr was purportedly sparked 

after Burr read a letter in a newspaper; a letter 

attributed to Hamilton characterizing Burr as “a 
4

dangerous man, and one who ought not to be trusted 

with the reins of government” Douglas Ambrose & 

Robert Martin, The Many Faces of Alexander 

Hamilton: The Life and Legacy of America’s Most 

Elusive Founding Father 10 (2006). 

This Court has noted that these “negative 

campaign” advertisements have continued 

throughout the history of the republic. New York 

Times Co. v. Sullivan, 376 U.S. 254, 273 n.14 (1964). 

Yet Congress’ one early attempt to regulate speech 

about office holders met with an immediate outcry 

that the regulation was contrary to the First 

Amendment. 

In the Sedition Act of 1798 Congress outlawed 

publication of “false, scandalous, and malicious 

writings against the Government, with intent to stir 

up sedition.” The supporters of the law argued that 

it was needed to carry out “the power vested by the 

Constitution in the Government.” History of 

Congress, February, 1799 at 2988. Opponents 

rejected that justification as one not countenanced by 

the First Amendment. In an earlier debate over the 

nature of constitutional power, Madison noted “‘If we 

advert to the nature of Republican Government, we 

shall find that the censorial power is in the people 

over the Government, and not in the Government 

over the people.’ 4 Annals of Congress, p. 934 

(1794).” New York Times Co., 376 U.S. at 275. 

The Virginia Resolutions of 1798 also condemned 

the act as the exercise of “‘a power not delegated by 

the Constitution, but, on the contrary, expressly and 

positively forbidden by one of the amendments 

thereto.’” Id. at 274. The particular evil in the 

Sedition Act, according to the Virginia General 
5

Assembly, was that it was “’levelled against the right 

of freely examining public characters and measures, 

and of free communication among the people 

thereon.’” Id. 

The Sedition Act expired by its own terms in 1801 

and the new Congress refused to extend or reenact 

the prohibitions. For his part, Jefferson pardoned 

those convicted and fines were reimbursed by an act 

of Congress based on Congress’ view that the 

Sedition Act was unconstitutional. Id. at 276. 

This Court in New York Times Co., noted that 

“[a]lthough the Sedition Act was never tested in this 

Court, the attack upon its validity has carried the 

day in the court of history.” Id. More important 

than the “court of history,” is the apparent political 

judgment at the time that the enactment was 

inconsistent with the Constitution. Where one 

Congress attempted to insulate itself from criticism, 

the subsequent Congress immediately recognized 

that attempt as contrary to the First Amendment. 

Congress and the President did not merely allow the 

law to lapse—they took affirmative action to undo its 

effects through repayment of fines and pardons. 

This is the clearest indication we have of the original 

understanding of the First Amendment’s speech and 

press clauses. See McIntyre v. Ohio Elections 

Comm’n, 514 U.S. 334, 360 (1995) (Thomas, J. 

concurring) (evidence of original understanding of 

the Constitution can be found in the “practices and 

beliefs held by the Founders”). 

In this case, the Court is again confronted with 

an act of Congress that is “leveled against the right 

of freely examining public characters and measures, 

and the free communication among the people 
6

thereon.” This law does not seek to regulate the 

content of the communication, as was the case with 

the Sedition Act, but instead regulates who may 

speak. 

II 

CONTROL OF MEDIA AND CONCENTRATION 

OF WEALTH ARE NOT NEW PHENOMENA 

This Court’s decision in Austin v. Michigan 

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

identified a new compelling interest to justify 

government prohibition of free speech. Previously, 

the Court had recognized the prevention of 

corruption or the appearance of corruption as “‘the 

only legitimate and compelling government interests 

thus far identified for restricting campaign 

finances,’” Austin, 494 U.S. at 658 (quoting Fed. 

Elections Comm’n v. Nat’l Conservative Political 

Action Comm., 470 U.S. 480, 496-97 (1985)). In 

addition to the concern over quid pro quo corruption 

that may occur with direct contributions, this Court 

in Austin also found compelling restrictions on 

independent election expenditures to combat “a 

different type of corruption in the political arena: 

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.” Id. at 660. Although 

the use of “immense aggregations of wealth” by 

individuals to influence elections are also unrelated 

to the “public’s support” for the political message, the 

Court in Austin apparently limited this interest to 

restrictions on corporate expenditures. The Austin

Court permitted the state to extend the prohibition 
7

on independent expenditures to a nonprofit 

expressive corporation if the corporation received 

contributions from business corporations—without 

regard to whether those contributions were made 

possible by “immense aggregations of wealth.” Id. 

at 660 (citation omitted). 

This restriction on political speech is not 

supported by the original understanding of the First 

Amendment. Uneven distribution of wealth is not a 

new phenomenon, nor is the use of wealth to 

broadcast an individual’s political sentiments. In the 

founding era, the methods of communicating political 

ideas were much more limited. This served to 

emphasize differences in wealth as political 

partisans used their wealth to fund newspapers that 

would further their political viewpoint. Jerry W. 

Knudson, Jefferson and the Press 2-4 (2006); 

Shannon E. Martin & Kathleen Hansen, Newspapers 

of Record in a Digital Age 21 (1998). Thomas 

Jefferson funded the National Gazette as a means of 

publicizing the “republican” viewpoint on politics, 

while Alexander Hamilton founded the New York 

Evening Post to help publicize his political point of 

view. Knudson, supra, at 2-3. 

Even with this dominance of the channels of 

available communication, Congress’ one attempt to 

regulate the press in that era—the Sedition Act—

was widely understood to violate the First 

Amendment. There was no suggestion that Congress 

had the power to regulate newspapers because they 

were funded by individuals who had managed to 

accumulate more wealth than others (whether from 

business transactions or from inheritance) and there 

is no suggestion that the First Amendment allows 
8

regulation in order to ensure that the amount spent 

on a message is proportional to the public support for 

the viewpoint. 

The Report on the Virginia Resolutions notes the 

purpose of the First Amendment is to maximize the 

information made available to the electorate. New 

York Times, 376 U.S. at 275 n.15. “The value and 

efficacy of this right [of electing public officials] 

depends on the knowledge of the comparative merits 

and demerits of the candidates for public trust, and 

on the equal freedom, consequently, of examining 

and discussing these merits and demerits of the 

candidates respectively.” Id. (citation omitted). The 

goal was to design “a system in which popular ideas 

would ultimately prevail; but also, through the First 

Amendment, a system in which true ideas could 

readily become popular.” Austin, 494 U.S. at 693 

(Scalia, J., dissenting). 

In contrast to the founding era, access to mass 

communication is readily available to individuals 

and groups of limited means. Anyone with access to 

a computer and the internet has the opportunity to 

add their voice to a debate and have their voice 

heard throughout the nation. No longer is the means 

of mass communication held in the hands of the few 

who choose to use their wealth to support their 

personal political viewpoint. If there was no basis for 

regulating speakers in the founding era in order to 

“equalize” rather than “maximize” political debate, 

there is even less of a reason to do so today. The 

rationale of Austin cannot stand as a matter of 

original understanding of the First Amendment. 
9

CONCLUSION 

Elections have rarely been polite affairs in 

American History. Yet the First Amendment was 

designed to maximize information available to the 

public. The Founders were interested in ensuring 

that the government had no power to censor political 

debate. The Court’s decision in Austin does not serve 

that goal and the decision should, therefore, be 

overruled. 

DATED: July, 2009. 

Respectfully submitted, 

THE HONORABLE

EDWIN MEESE III 

214 Massachusetts 

 Avenue NE 

Washington, DC 20002 

Telephone: 

 (202) 546-5400 

JOHN C. EASTMAN

Center for 

 Constitutional 

 Jurisprudence 

c/o Chapman University 

 School of Law 

One University Drive 

Orange, CA 92886 

ANTHONY T. CASO

Counsel of Record 

Law Office of 

Anthony T. Caso 

8001 Folsom Boulevard 

 Suite 100 

Sacramento, CA 95826 

Telephone: (916) 386-4432 

Facsimile: (916) 307-5164 

Counsel for Amicus Curiae 

Center for Constitutional Jurisprudence