Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Monday, January 23, 2012

Citizens Disunited

Late last year, I had the privilege of speaking to an audience of several hundred patient souls who were attending a lecture series offered by the Osher Lifelong Learning Institute. The theme of this particular series: political issues that divide us. My topic: the Supreme Court's decision in the Citizens United case. I love speaking to these Osher audiences, but in light of the fact that so far they've invited me to address such hot-button topics as Bush v. Gore, civil liberties during wartime, and Citizen United, I'm starting to wonder whether they love me back.

All joking aside, it was a characteristically welcoming crowd that remained so even after I told them that I would probably foil their expectations. I told them that I had not come to join all of those pundits who have happily piled on the Supreme Court as if it had just fumbled on its own one yard line. Instead, I told them that I hoped to persuade them that things were more complicated than they might have been led to believe. And, more specifically, I told them that I wanted to try to disabuse them of some of the criticisms of Citizens United that I believe to be unfair--for example, that in Citizen United the Supreme Court broke startling new ground by treating corporations, unions, and other legal entities as "persons" for purposes of First Amendment analysis.

Alas, my insights did not spread across the nation like brushfire and so the debate continues. Just recently, the Wall Street Journal printed an editorial on the subject that I think well done and worth reading (you may need a subscription to access the entire piece). Indeed, a rich--if occasionally misleading--literature has quickly grown up around the case.

In any event, I was reminded of the risks of oversimplified thinking about these issues just this past weekend when I happened to drive by a collection of protesters on a street corner, one of whom was holding a sign that said "Honk if you think corporations are not people." Now, I am enthusiastically supportive of just about anyone who wishes to express their views through such a peaceful, lawful demonstration of their convictions. Indeed, a few years ago I brought hot chocolate to some people who were protesting on a dangerously frigid day.

Still, I couldn't help but wince at the irony. It is far from self-evident that the text of the First Amendment reaches so far as an invitation to honk a horn. To get to such a result, one must read the text of that Amendment expansively--indeed, I would say in all of its expansive glory. It is the same sort of reading that leads one to conclude that the First Amendment also protects expression by legal entities. Indeed, if it does not, then a long and impressive history of expression through mobilization, unification, and incorporation is at peril.

It is a nice point to make to a room full of people whose presence was achieved through the efforts of an organization.