40
CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Opinion of STEVENS, J.
have lesser status than individual speech, that may well
be because the contrary proposition—if not also the very
notion of “corporate speech”—was inconceivable.56
JUSTICE SCALIA also emphasizes the unqualified nature
of the First Amendment text. Ante, at 2, 8. Yet he would
seemingly read out the Free Press Clause: How else could
he claim that my purported views on newspapers must
track my views on corporations generally? Ante, at 6.57
Like virtually all modern lawyers, JUSTICE SCALIA pre
sumably believes that the First Amendment restricts the
Executive, even though its language refers to Congress
alone. In any event, the text only leads us back to the
questions who or what is guaranteed “the freedom of
speech,” and, just as critically, what that freedom consists
of and under what circumstances it may be limited.
JUSTICE SCALIA appears to believe that because corpora
tions are created and utilized by individuals, it follows (as
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56 Postratification practice bolsters the conclusion that the First
Amendment, “as originally understood,” ante, at 37, did not give corpo
rations political speech rights on a par with the rights of individuals.
Well into the modern era of general incorporation statutes, “[t]he
common law was generally interpreted as prohibiting corporate politi
cal participation,” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765,
819 (1978) (White, J., dissenting), and this Court did not recognize any
First Amendment protections for corporations until the middle part of
the 20th century, see ante, at 25–26 (listing cases).
57 In fact, the Free Press Clause might be turned against JUSTICE
SCALIA, for two reasons. First, we learn from it that the drafters of the
First Amendment did draw distinctions—explicit distinctions—between
types of “speakers,” or speech outlets or forms. Second, the Court’s
strongest historical evidence all relates to the Framers’ views on the
press, see ante, at 37–38; ante, at 4–6 (SCALIA, J., concurring), yet while
the Court tries to sweep this evidence into the Free Speech Clause, the
Free Press Clause provides a more natural textual home. The text and
history highlighted by our colleagues suggests why one type of corpora
tion, those that are part of the press, might be able to claim special
First Amendment status, and therefore why some kinds of “identity”
based distinctions might be permissible after all. Once one accepts that
much, the intellectual edifice of the majority opinion crumbles.