Cengage Advantage Books: Foundations of the Legal Environment of Business 3rd Edition by Marianne Jennings

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Citizens United v. Federal Election Commission 558 U.S. 310 (2010)
The Case That Caused a Dust-Up Between a Justice and the President During the State of the Union Address1
Facts
In January 2008, Citizens United, a nonprofit corporation, released the film Hillary: The Movie , a 90-minute documentary about then-Senator Hillary Clinton, who was a candidate in the Democratic Party's 2008 Presidential primary elections. Most of the commentators in the film were quite critical of Senator Clinton. Hillary was released in theaters and on DVD, but Citizens United wanted to increase distribution by making it available through video-on-demand.
Citizens United produced two 10-second ads and one 30-second ad for Hillary that included short, pejorative statements about Senator Clinton, followed by the name of the movie and the movie's website address. Citizens United wanted to run the ads on broadcast and cable television. However, if Citizens United's ads violated the BCRA restrictions on corporate political speech and prohibitions on TV ads too close to elections, it faced criminal penalties, so it filed suit to stop the Federal Election Commission (FEC) from stopping the ads or imposing criminal penalties.
The District Court denied Citizens United (appellant) a preliminary injunction and granted the FEC (appellee) summary judgment. Citizens United requested and was granted certiorari.
Judicial Opinion
KENNEDY, Justice
It is well known that the public begins to concentrate on elections only in the weeks immediately before they are held. There are short time frames in which speech can have influence. The decision to speak is made in the heat of political campaigns, when speakers react to messages conveyed by others. A speaker's ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first commence a protracted lawsuit. Today, Citizens United finally learns, two years after the fact, whether it could have spoken during the 2008 Presidential primary- long after the opportunity to persuade primary voters has passed.
[A] speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. These onerous restrictions [give] the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit. The law before us is an outright ban, backed by criminal sanctions.
[The BCRA] is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak. Even if a PAC could somehow allow a corporation to speak-and it does not-the option to form PACs does not alleviate the First Amendment problems. PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations.
PACs have to comply with these regulations just to speak. This might explain why fewer than 2,000 of the millions of corporations in this country have PACs. Given the onerous restrictions, a corporation may not be able to establish a PAC in time to make its views known regarding candidates and issues in a current campaign. The BCRA prohibition on corporate independent expenditures is thus a ban on speech.
By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech. The Government may not deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.
Citizens United [also] challenges BCRA's disclaimer and disclosure provisions. Under BCRA, televised electioneering communications funded by anyone other than a candidate must include a disclaimer that "_______ is responsible for the content of this advertising."
Disclaimer and disclosure requirements may burden the ability to speak, but they "impose no ceiling on campaign-related activities," and "do not prevent anyone from speaking." The Court has explained that disclosure is a less restrictive alternative to more comprehensive regulations of speech.
This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages. [W]e affirm their application to Hillary. We find no constitutional impediment to the application of BCRA's disclaimer and disclosure requirements to a movie broadcast via video-ondemand.
The judgment of the District Court is reversed on restrictions on corporate independent expenditures. The judgment is affirmed with respect to BCRA's disclaimer and disclosure requirements.
Case Questions
1. Why does the court uphold the provisions of the BCRA that require disclosure of funding for ads?
2. What issues are raised about controls on the funding of political ads?
3. What are the concerns of the court in making political speech criminal?