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What if Citizens Unite d had been decided the way Neuborne and Chemerinsky wanted, that is, by holding that corporations don’t have “full free speech rights?” Would they then think DeSantis could punish Disney for its opposition to the legislation barring discussion of gay issues? Is it their position that it violates the First Amendment to bar corporate speech selectively, but it doesn’t violate the First Amendment to bar all corporate speech on political issues?įinally, they, perhaps slyly, say they oppose the Citizens United decision, which they characterize as granting “full free speech rights to corporations like Disney. They regret that, but as long as they do, they say, Florida should not be able to engage in viewpoint discrimination. So their support for the First Amendment right of Disney to criticize the legislation barring discussion of gay issues is only because of a Supreme Court decision holding that corporations have free speech rights.
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They say, and I agree, that what DeSantis is trying to do to Disney violates the First Amendment.īut they also say that they think “the Supreme Court was wrong in Citizens United when it granted full free speech rights to corporations like Disney.” DeSantis has tried to do by punishing the Disney company for opposing legislation limiting discussion of gay issues in Florida’s public schools. Unsurprisingly, my former colleagues Burt Neuborne and Erwin Chemerinsky and I have the same view on the unconstitutionality of what Gov.
These are the difficulties encountered when First Amendment principles are forsaken for content-driven ones. So what now, liberals and conservatives? Do you support Florida’s speech-restrictive act against the Disney corporation? Or do you oppose it?Īnd what if when Ron DeSantis runs for president and the Disney corporation decides to run ads opposing his election? Will liberals oppose Disney’s corporate electoral advocacy, and denounce Citizens United for permitting it? And will conservatives supporting DeSantis change their position on Citizens United and call for restrictions on corporate speech? Remember that Citizens United was not a business corporation like Disney, but an incorporated-cause organization criticizing Hillary Clinton, much as the ACLU was an incorporated-cause organization that criticized Richard Nixon, or Donald Trump.Īs usual, after the Citizens United decision, many on both sides focused on the content of the speech being restricted (and not on the content-neutral principles of the First Amendment) in determining whether they liked the Citizens United holding or hated it. What, respectively, would they make of the Citizens United holding now?Ĭitizens United involved a statute that restricted electoral advocacy but its restrictions were intended to apply, and in practice did apply, far more broadly to reach advocacy that was not electoral but took place in an election year (e.g., the ACLU’s criticism of an elected official who was also a candidate running for re-election). Now Disney, a corporation, speaks in a manner pleasing to liberals and displeasing to conservatives. amicus brief of Pacific Legal Foundation in Citizens United ).
Forum), while conservatives applauded it (see e.g. Floyd Abrams, “ Citizens United and Its Critics ,” Yale L. Liberals generally hated that holding (see e.g. Federal Election Commission (2010) held that corporations’ speech was protected by the First Amendment. I imagine many liberals would agree with him, and that many conservatives would not.
Robert Corn-Revere’s recent analysis of the Disney controversy is, in my view, exactly right, and I commend it. The following commentary is by Ira Glasser, who served as the executive director of the American Civil Liberties Union from 1978 to 2001.