Citizens United: An Important Case for Broadcasters

On Wednesday, September 9th, the U.S. Supreme Court heard arguments in the case of Citizens United v. Federal Election Commission. This case is very important for broadcasters, as the Court will reconsider the constitutionality of laws, in particular, McCain-Feingold, that prohibit corporations and unions from funding broadcasting ads that influence elections. A reversal of the Court's prior rulings upholding such laws should unleash a flood of election and issue-related advertising as early as next year. Of course, that is important to broadcasters as sustainable businesses.

The case involves a challenge to the earlier campaign finance laws and the McCain-Feingold law, which bars corporate and union financing of ads that identify a federal candidate, and are aired on radio, television, cable or satellite in the run-up to an election. Ads in print media or over the Internet are not affected. Citizens United, a non-profit group that accepts corporate funding, wanted to air an anti-Hillary Clinton documentary through a cable television video on-demand service, and advertise for it on broadcast and cable television. Rather than rule on the narrow question of whether the McCain-Feingold ban could be constitutionally applied in this instance, the Court announced that it would reconsider whether government may ban political speech by corporations and unions.

At stake is not just the McCain-Feingold law, but also a federal law that bans corporations and unions from paying for communications that expressly advocate for the election or defeat of a candidate, and many similar state laws. Importantly, the Court asked for briefs and scheduled an argument before its regular term begins, signaling a desire to move quickly, in time for the 2010 campaign season.

On behalf of 10 state broadcaster associations, two of my colleagues at Womble Carlyle and I filed a brief in the case as amicus curie. The broadcasters associations argued that the prohibition unconstitutionally singles out broadcast media (as well as cable and satellite) by barring corporate and union political ads during the weeks prior to an election. His period is similar to, but not exactly the same as the Lowest Unit Charge periods familiar to broadcasters.

Our focus was that the McCain-Feingold bar on certain corporate and union financed messages that identify a federal candidate and only targeting those that are aired on radio or television, violates the First Amendment right of speakers to choose their preferred medium of communication for themselves and impermissibly discriminates against broadcasting for the delivery of political speech.

These bans unconstitutionally criminalize speech based on content and the nature of the speaker. They channel speech into lawful and unlawful modes of communication that infringe the constitutional rights of the speaker to choose their own mode of communication. As trustees of the airwaves and of the First Amendment, we believe that broadcasters had a right and an obligation to stand up for this principle fundamental to our democracy.

We also argued that laws restricting broadcast ads about elections and issues deprive Americans of the source they most rely on to inform their decision-making. An April 2009 study by the Pew Internet and American Life Project found that television remains the dominant medium for political news: nearly 80% of those surveyed report getting most of their campaign news from television. The recent election cycle demonstrates that radio is just as important to campaign strategy and is actually increasing in importance.

In addition, laws prohibiting the financing of ads that contain "express advocacy" or constitute "electioneering communications," two phrases relied upon in the legislation and prior reviewing courts, raise difficult interpretive questions. Entities that lack significant financial resources will self-censor rather than face substantial fines or the costs of litigation to fight them. Ultimately the broadcaster is called upon to make difficult decisions of law that should not be its role.

This was the first Supreme Court case for new Justice Sonia Sotomayor. It is very hard to predict a decision from the questions and comments of the Justices, but it appears to many observers that a reversal is in the works. Four of the justices asked very pointed questions. Justice Sotomayor seemed to be looking for a way to rule narrowly, but appeared to understand that some changes were coming.

Keep tuned to this case. It has major ramifications for political broadcast spending in the 2010 election season.

For a copy of Womble Carlyle's brief for the broadcasters associations go to

www.wcsr.com/political

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.