It is not judicial restraint to accept an unsound, narrow argument just so the Court canavoid another argument with broader implications. In-deed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling.
That comes from the (metaphorical) pen of Justice Anthony Kennedy. It’s difficult to fathom that Kennedy is capable of making such an eloquent argument, but his Majority Opinion in the case of Citizens United v. Federal Election Commission is a homerun.
Some of the key passages:
The ongoing chill upon speech that is beyond all doubt protected makes it necessary in this case to invoke the earlier precedents that a statute which chills speech can and must be invalidated where its facial invalidity hasbeen demonstrated. See WRTL, supra, at 482–483 (ALITO, J., concurring); Thornhill v. Alabama, 310 U. S. 88, 97–98 (1940). For these reasons we find it necessary to recon-sider Austin.
. . . For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadver-tence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to provethat the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464 (opinion of ROBERTS, C. J.). While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, see Simon & Schuster, 502 U. S., at 124 (KENNEDY, J., concurring in judgment), the quoted language from WRTL provides asufficient framework for protecting the relevant FirstAmendment interests in this case. We shall employ it here.
. . . If the First Amendment has any force, it prohibits Con-gress from fining or jailing citizens, or associations ofcitizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, itwould permit Government to ban political speech simply because the speaker is an association that has taken onthe corporate form. The Government contends that Austin permits it to ban corporate expenditures for almost all forms of communication stemming from a corporation.See Part II–E, supra; Tr. of Oral Arg. 66 (Sept. 9, 2009); see also id., at 26–31 (Mar. 24, 2009). If Austin were correct, the Government could prohibit a corporation fromexpressing political views in media beyond those pre-sented here, such as by printing books. The Government responds “that the FEC has never applied this statute to abook,” and if it did, “there would be quite [a] good as-applied challenge.” Tr. of Oral Arg. 65 (Sept. 9, 2009). This troubling assertion of brooding governmental power cannot be reconciled with the confidence and stability incivic discourse that the First Amendment must secure.
Political speech is “indispensable to decisionmaking in ademocracy, and this is no less true because the speech comes from a corporation rather than an individual.” Bellotti, 435 U. S., at 777 (footnote omitted); see ibid. (theworth of speech “does not depend upon the identity of itssource, whether corporation, association, union, or indi-vidual”); Buckley, 424 U. S., at 48–49 (“[T]he concept thatgovernment may restrict the speech of some elements of our society in order to enhance the relative voice of othersis wholly foreign to the First Amendment”); Automobile Workers, 352 U. S., at 597 (Douglas, J., dissenting); CIO, 335 U. S., at 154–155 (Rutledge, J., concurring in result).This protection for speech is inconsistent with Austin’s antidistortion rationale. Austin sought to defend the antidistortion rationale as a means to prevent corpora-tions from obtaining “‘an unfair advantage in the politicalmarketplace’” by using “‘resources amassed in the eco-nomic marketplace.’” 494 U. S., at 659 (quoting MCFL, supra, at 257). But Buckley rejected the premise that the Government has an interest “in equalizing the relativeability of individuals and groups to influence the outcomeof elections.” 424 U. S., at 48; see Bellotti, supra, at 791, n. 30. Buckley was specific in stating that “the skyrocket-ing cost of political campaigns” could not sustain the governmental prohibition. 424 U. S., at 26. The First Amendment’s protections do not depend on the speaker’s “financial ability to engage in public discussion.” Id., at 49.
. . . It is irrelevant for purposes of the First Amendment that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Id., at 660 (majority opinion). All speakers, includingindividuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas. See id., at 707 (KENNEDY, J., dissenting) (“Many persons can trace theirfunds to corporations, if not in the form of donations, then in the form of dividends, interest, or salary”).
Austin’s antidistortion rationale would produce the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations.
. . . There is simply no support for the view that the FirstAmendment, as originally understood, would permit the suppression of political speech by media corporations.
. . . Rapid changes in technology—and the creative dynamicinherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. See Part II–C, supra. Today, 30-second television ads may be the most effectiveway to convey a political message. See McConnell, supra, at 261 (opinion of SCALIA, J.). Soon, however, it may bethat Internet sources, such as blogs and social networkingWeb sites, will provide citizens with significant informa-tion about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were createdwith corporate funds. See 2 U. S. C. §441b(a); MCFL, supra, at 249. The First Amendment does not permitCongress to make these categorical distinctions based onthe corporate identity of the speaker and the content ofthe political speech.
This is really one of Kennedy’s best opinions. Kudos to he and (four of) his colleagues.