Last Thursday the Supreme Court advanced the cause of free political speech when it handed down its 5-4 ruling in Citizens United v. Federal Election Commission, an important case involving a provision of the Bipartisan Campaign Reform Act of 2002 banning independent campaign advertisements by corporations and unions in the days before an election. The majority opinion, authored by Justice Kennedy, struck down this provision on the grounds that “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” The case raised some thorny legal issues because it held that the “freedom of speech” protected by the First Amendment covered not just the political speech of individual citizens, but that of corporations. What about Justice Stevens’ claim in his dissent that the First Amendment does not apply because corporations “are not human beings” and therefore their speech is not entitled to First Amendment protection? The flaw with that reasoning is that corporations are not distinct entities in and of themselves, but “associations of citizens” – workers, managers, investors, etc. – organized together through a specific legal and contractual arrangement. Corporations do not speak; people speak in their role as a corporate actor. Therefore the question is not “Do corporations have a right to free speech?” but “Are citizens’ right to free speech suspended when they organize in a corporation?” Nothing in the text of the Constitution supports answering that question with a “Yes.” The Court has well-established precedents that upheld the First Amendment rights of corporations, specifically New York Times Co. v. Sullivan, decided in 1964, and New York Times Co. v. United States, decided in 1971. Admittedly both of those cases dealt with freedom of press rather than freedom of speech, but there is no good reason to believe that some but not all of the rights of the First Amendment apply to corporations. The best case one could make is that “the press” in the First Amendment was meant to refer to the industry, and therefore corporations that are part of that industry are protected. However, according to UCLA School of Law professor and legal blogger Eugene Volokh, “the press” refers to printing technology and was viewed “not as a right that belong to members of a particular industry.” True, the Court also had precedents upholding that provision, among others, of the BCRA – McConnell v. FEC in 2003 – and similar state-level restrictions – Austin v. Michigan Chamber of Commerce in 1990 – both of which were overturned by Citizens United, although the portions of McConnell unrelated to the independent expeditures were left untouched. The basic reasoning behind those rulings was that the accumulation of wealth made possible by access to the corporate form provided, in the words of the Austin ruling, “an unfair advantage in the political market place.” However, as Justice Kennedy pointed out, “the State cannot exact as the price of those advantages the forfeiture of First Amendment rights,” a legal doctrine know as the unconstitutional conditions doctrine. As a result, the existing differential treatment of corporate political speech and individual political speech was irreconcilable with the rest of the Courts’ holdings. Either the Supreme Court had to uphold the provision of BCRA and keep the muddled, inconsistent status-quo or it could use the throw out the poorly-reasoned precedents while keeping the properly decided ones. The court rightly chose the second course of action.