Alison Frankel

If you hate the current state of campaign finance, in which corporations and non-profits exert influence through trade associations, political action committees and so-called super PACs, you can’t lay all of the blame at the doorstep of the U.S. Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission, which held that corporations and labor unions have the same First Amendment rights to free speech as individuals.

Nor can you say that the root of the problem was the court’s 2007 ruling in Federal Election Commission v. Wisconsin Right to Life that corporations and labor unions are permitted to spend money on election ads as long as those ads do not contain “express advocacy” for or against a candidate.

Instead, you have to look back to 1976, when the Supreme Court decided in Buckley v. Valeo that the constitution permits limits on direct campaign contributions to candidates by corporations. Such restrictions, the Buckley court held, do not violate the First Amendment.

That bar on direct contributions to candidates, reaffirmed by the U.S. Supreme Court in 2003 in FEC v. Beaumont, has remained in place despite repeated assaults in recent years. As Rick Hasen, an election-law expert at the University of California, Irvine, School of Law wrote Wednesday at his Election Law Blog, the current justices may well overturn Beaumont‘s holding on direct corporate contributions to candidates if they decide to take up the issue, but so far they haven’t.

Direct contributions, however, weren’t the only issue in that seminal 1976 ruling in Buckley. The court drew a line between direct contributions and “independent expenditures,” in which people (or groups) exercise their First Amendment rights to express political support for a candidate. Buckley said that while corporations can’t make direct contributions, people and groups cannot be barred from independent political expenditures. More than a quarter-century later, in Citizens United, the Supreme Court explicitly extended that reasoning to corporations and unions, ruling that the First Amendment protects their right to independent political expenditures.

In the mid-1950s, a small-time New York publisher named Samuel Roth was indicted for distributing books, magazines, photos and advertising circulars that were accused of being “obscene, lewd, lascivious, filthy and of an indecent character.” The precise content of Roth’s offensive mailings has been lost to history, although it’s probably tame by modern standards. Nevertheless, a federal jury in New York concluded that the publisher violated a law barring distribution of pornography, and the court sentenced Roth to five years in prison. The case eventually made its way to the U.S. Supreme Court. In 1957, the justices upheld Roth’s conviction, in a landmark ruling that obscenity is not entitled to First Amendment protection. The court said that the law had always assumed sexual material is not covered by the Constitution’s free speech provision, so its ruling merely codified that assumption. The Roth decision placed obscenity in the tiny category of exceptions to First Amendment freedom, along with incitement and fighting words.

Fifty-three years later, the Supreme Court was called upon to decide the constitutionality of another federal law, this one making it a criminal offense to create or possess depictions of cruelty to animals. In its 2010 opinion in United States v.  Stevens, the court reminded us that violence – unlike sex – is protected speech, despite Congress’s efforts in the animal-cruelty law to equate violence with obscenity. The justices struck down the law and vacated the conviction of Robert Stevens, a man who sold videos of pit bulls attacking and killing other animals. The government had argued that some speech, such as depiction of the brutal death of innocent animals, comes at too high a societal cost to deserve First Amendment protection. The Supreme Court called that argument “startling and dangerous.”

The issue of First Amendment protection for even the most blood-soaked materials is sure to become part of the discussion of why the alleged Batman killer, James Holmes, opened fire at a movie theater in Aurora, Colorado, killing 12 moviegoers and injuring dozens more. Whenever one of these horrific mass murders is perpetrated we ask the same questions. Why is it so easy for people with no legitimate purpose to get hold of assault weapons? And does increasingly violent, gruesome entertainment, especially in video and computer games, contribute to violence in real life?

Even tobacco companies are entitled to the free speech protections of the First Amendment.

As U.S. District Judge Richard Leon of Washington, D.C. federal court explained in a fascinating ruling Monday, the Constitution grants not just the right to speak, but also the right not to. “Compelled speech” violates the First Amendment, except in a narrow commercial context; the U.S. government can require businesses to make “purely factual and uncontroversial” disclosures to protect consumers.

Judge Leon found that nine graphic images the Food and Drug Administration and the Department of Health and Human Services planned to require tobacco companies to carry on every pack of cigarettes amounted to compelled speech. He granted the tobacco companies an injunction against the requirement, finding that “unfortunately for the government, the evidence here overwhelmingly suggests that the rule’s graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are [permissible].” “Indeed, the fact alone that some of the graphic images here appear to be cartoons, and others appear to be digitally enhanced or manipulated, would seem to contravene the very definition of ‘purely factual.’”