2
CITIZENS UNITED v. FEDERAL ELECTION COMM’N
Syllabus
and cable television. Concerned about possible civil and criminal
penalties for violating §441b, it sought declaratory and injunctive re
lief, arguing that (1) §441b is unconstitutional as applied to Hillary;
and (2) BCRA’s disclaimer, disclosure, and reporting requirements,
BCRA §§201 and 311, were unconstitutional as applied to Hillary
and the ads. The District Court denied Citizens United a prelimi
nary injunction and granted appellee Federal Election Commission
(FEC) summary judgment.
Held:
1. Because the question whether §441b applies to Hillary cannot be
resolved on other, narrower grounds without chilling political speech,
this Court must consider the continuing effect of the speech suppres
sion upheld in Austin. Pp. 5–20.
(a) Citizen United’s narrower arguments—that Hillary is not an
“electioneering communication” covered by §441b because it is not
“publicly distributed” under 11 CFR §100.29(a)(2); that §441b may
not be applied to Hillary under Federal Election Comm’n v. Wisconsin
Right to Life, Inc., 551 U. S. 449 (WRTL), which found §441b uncon
stitutional as applied to speech that was not “express advocacy or its
functional equivalent,” id., at 481 (opinion of ROBERTS, C. J.), deter
mining that a communication “is the functional equivalent of express
advocacy only if [it] is susceptible of no reasonable interpretation
other than as an appeal to vote for or against a specific candidate,”
id., at 469–470; that §441b should be invalidated as applied to movies
shown through video-on-demand because this delivery system has a
lower risk of distorting the political process than do television ads;
and that there should be an exception to §441b’s ban for nonprofit
corporate political speech funded overwhelming by individuals—are
not sustainable under a fair reading of the statute. Pp. 5–12.
(b) Thus, this case cannot be resolved on a narrower ground
without chilling political speech, speech that is central to the First
Amendment’s meaning and purpose. Citizens United did not waive
this challenge to Austin when it stipulated to dismissing the facial
challenge below, since (1) even if such a challenge could be waived,
this Court may reconsider Austin and §441b’s facial validity here be
cause the District Court “passed upon” the issue, Lebron v. National
Railroad Passenger Corporation, 513 U. S. 374, 379; (2) throughout
the litigation, Citizens United has asserted a claim that the FEC has
violated its right to free speech; and (3) the parties cannot enter into
a stipulation that prevents the Court from considering remedies nec
essary to resolve a claim that has been preserved. Because Citizen
United’s narrower arguments are not sustainable, this Court must, in
an exercise of its judicial responsibility, consider §441b’s facial valid
ity. Any other course would prolong the substantial, nationwide