Two Concepts of Freedom of Speech
![handle is hein.journals/hlr124 and id is 145 raw text is: TWO CONCEPTS OF FREEDOM OF SPEECH
Kathleen M. Sullivan*
By holding that corporations may make independent expenditures
from their general treasuries advocating the election or defeat of politi-
cal candidates, Citizens United v. FECI unleashed a torrent of popular
criticism, a pointed attack by the President in the State of the Union
address,2 a flurry of proposed corrective legislation in Congress,3 and
various calls to overturn the decision by constitutional amendment.4
Political uproar over a 5-4 Supreme Court decision upholding a con-
troversial free speech right is not new; the Court's two 5-4 decisions
upholding a right to engage in symbolic flag burning,5 for example,
elicited widespread public condemnation and efforts in Congress to
overturn the Court by statute and by constitutional amendment.6 But
Citizens United surely marks the first time a controversial victory for
* Former Dean and Stanley Morrison Professor of Law, Stanford Law School; Partner, Quinn
Emanuel Urquhart & Sullivan.
1 130 S. Ct. 876 (2010).
2 President Barack Obama, State of the Union Address (Jan. 27, 2010), in 156 CONG. REC.
H418 (daily ed. Jan. 27, 2010) (With all due deference to the separation of powers, last week, the
Supreme Court reversed a century of law that I believe will open the floodgates for special inter-
ests - including foreign corporations - to spend without limit in our elections.).
3 Some measure of the level of political outrage expressed in these bills can be found in the
titles conferred upon them by their sponsors. See, e.g., Prevent Foreign Influence in our Elections
Act, H.R. 4540, 111th Cong. (2010); Corporate and Labor Electioneering Advertisement Reform
Act, H.R. 4527, 111th Cong. (2010); Save Our Democracy from Foreign Influence Act of 2010,
H.R. 4523, 111th Cong. (2010); Prohibiting Foreign Influence in American Elections Act, H.R.
4522, 111th Cong. (2oo); Freedom from Foreign-Based Manipulation in American Elections Act
of 2010, H.R. 4517, 111th Cong. (2010); Pick Your Poison Act of 2oso, H.R. 4511, 111th Cong.
(2010); End the Hijacking of Shareholder Funds Act, H.R. 4487, 11th Cong. (2010).
4 Professor Lawrence Lessig, for example, has advocated the adoption of a constitutional
amendment that would provide: [n]othing in this Constitution shall be construed to restrict the
power to limit, though not to ban, campaign expenditures of non-citizens of the United States dur-
ing the last 60 days before an election. Lawrence Lessig, Citizens Unite, HUFFINGTON POST
(Mar. 16, 2010, 7:32 AM), http://www.huffingtonpost.comlawrence-lessig/citizens-united_b_5oo
438.html.
s United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (r989).
6 In response to Texas v. Johnson, which invalidated the application to symbolic flag burning
of a state criminal statute protecting venerated objects, Congress enacted the Flag Protection Act
of 1989, Pub. L. No. 101-131, 103 Stat. 777 (codified at 18 U.S.C. § 700 (2o06)), which the Court
then invalidated as applied in United States v. Eichman. For an account of the origins of the fed-
eral statute including a pre-Eichman defense of its constitutionality, see Geoffrey R. Stone, Flag
Burning and the Constitution, 75 IOWA L. REV. 111 (1989). Miscellaneous proposals to amend
the Constitution to permit prohibition of flag burning failed in Congress, although one commenta-
tor thought such an amendment would be less damaging to other First Amendment values than a
flag-protective statute. See Frank Michelman, Saving Old Glory: On Constitutional Iconography,
42 STAN. L. REV. 1337, 1339-54 (1990)
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Two Concepts of Freedom of Speech
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