Last week, the Supreme Court heard the oral argument Citizens United v. FEC, which could become a landmark First Amendment case. At issue is the constitutionality of the FEC’s ban of anti-Hillary documentary sponsored by corporate funds. The Court could decide the issue narrowly, on the grounds that this particular commercial speech was clearly political and thus warrants the highest level of First Amendment scrutiny. However, comments by several justices at the oral argument hint that the Court may use this case as a vehicle for establishing a new rule – that commercial speech merits the same strict scrutiny as does political speech. Until now, the Court has applied a lower level of scrutiny to commercial speech. The reason for this practice is that because commercial speech is for profit, there is less of a danger of chilling that speech than there is for political speech. If the Court does use Citizens United v. FEC as a vehicle for establishing a new level of review for commercial speech, thousands of statutes that currently regulate business and commercial speech will fall under attack, and may be struck down. Monied interests, which are already far too powerful in our political system, would become even more powerful.
If the Court issues a broad ruling in Citizens United v. FEC, that would be consistent with a trend on the Court to protect the interests of property owners and businesses. The Court has established a new regulatory takings doctrine which makes it considerably more difficult for the government to regulate property in the public interest (though the Court’s ruling in Kelo was a step backwards in this line of cases). The Court has established new limits on punitive damages in tort cases brought against multi-national corporations like Exxon. If the Court, as expected, issues a broad ruling in favor of corporate commercial speech in Citizens United v. FEC, it will be just another Supreme Court ruling in favor of the “haves” at the expense of the “have nots.”