Is the Supreme Court using the First Amendment to empower corporations, the right?

Longtime Berkeley lawyer and educator William Bennett Turner has been increasingly disillusioned by First Amendment decisions by the U.S. Supreme Court.

Turner practiced constitutional law for 45 years, argued cases before the court and has published widely on free-speech issues. He has taught courses on freedom of speech and the press at UC Berkeley for more than three decades. Now, he’s written a book charging that the court, under Chief Justice John Roberts, has been deploying the First Amendment in ways that serve the interests of corporations and the religious right —instead of the individuals who traditionally need the amendment’s protection to get their voices heard. Turner says the court has taken free speech principles developed decades ago to shield and empower oppressed citizens and applied them to further conservative political interests.

The book, just published by Roaring Forties Press in Berkeley, is Free Speech for Some: How the Supreme Court is Weaponizing the First Amendment to Empower Corporations and the Religious Right. I wondered what had convinced him that more people need to know what the Supreme Court is doing these days about free speech.

Free speech has been loudly proclaimed, especially in Berkeley, for decades. Most recently, the First Amendment was tested in the violent protests surrounding the appearance of Milo Yiannopoulos and others on the UC Berkeley campus throughout 2017. Security for the events cost the campus and local law enforcement millions of dollars.


Turner and I talked about his book at the Baker & Commons Café, a calm venue on College Avenue in the Elmwood, which itself has been in the past the site of more than one bitter community controversy. The conversation has been edited for clarity and concision.

Having taught generations of Berkeley students about these explosive issues, you say, “What the First Amendment means is what at least five current justices say it means.” So the meaning can change as the composition of the court changes?

It can and does. The text of the amendment doesn’t give us any answers, not even clues, to the free speech issues that come before the court. Now that the Roberts Court has a solid majority of political conservatives, they are free to decide cases in ways that favor conservative political and economic interests, and that’s what they’ve been doing—systematically.

The “originalists” on the court, including the late Justice Antonin Scalia and Clarence Thomas, hold that the Constitution should be interpreted as it was in 1787?

Yes, the Originalists, now also including Neil Gorsuch and to some extent, Samuel Alito and Brett Kavanaugh, say the Constitution should be interpreted the way the framers would have understood it. But there’s precious little information about what the framers had in mind in adopting the First Amendment. It’s pretty clear they wanted to protect political speech, but that’s about it. How they would think about Facebook, Twitter, violent video games and 21st-century communications is anybody’s guess.

Is there historical precedent for the First Amendment being used in favor of business and corporations?

Traditionally, the amendment was used to shield individuals and groups — like civil rights demonstrators, antiwar activists, and eccentrics —who needed the amendment to get their voices heard. There’s some precedent for corporations having free speech rights, and Citizens United took that precedent and ran with it. Generally, corporations don’t have more or better free speech rights than individuals. But the Roberts Court has decided that certain categories of individuals don’t have full First Amendment rights: students, prisoners, government employees and military personnel. The court in Citizens United didn’t satisfactorily explain why corporations should have greater speech protection than these real human beings.

Could you explain the Lochner ruling, which used the “Due Process Clause” of the Fourteenth Amendment to target social welfare legislation like Franklin D. Roosevelt’s New Deal? How was that similar to what you see happening in the court’s free speech decisions today?

That’s complicated but important. Lochner, in 1905, used the Due Process clause to strike down all kinds of laws opposed by business. It said the “liberty” protected by Due Process included a fictional “liberty of contract” between, for example, employers and employees, so laws that set minimum wages and hours interfered with that liberty and violated the Constitution. During the Lochner era, the court threw out maybe 200 state and federal laws on this reasoning. Lochner is now viewed as a disgraceful period in the court’s history. Even Chief Justice Roberts has denounced it. What he doesn’t acknowledge is that his court is accomplishing much the same results—getting government off the backs of business—by using a different amendment, the First. In other words, a new Lochner era is afoot, with the majority justices using a broad, unspecific constitutional provision and reading into it their political and economic preferences.

The Roberts Court is the most business-friendly since the Lochner era. It has consistently struck down environmental and consumer protections, limited the rights of injured individuals to receive fair compensation, restricted class actions, hobbled labor unions and made it more difficult for ordinary citizens to get access to the courts to redress their grievances. This pro-business bent has been widely recognized. What’s new is the court’s now deploying the First Amendment to further business interests.

The court’s Citizens United decision overturned the McCain-Feingold Act, which had limited corporate spending in campaigns. What else did it do?

Citizens United drew an important distinction between contributions to candidates’ campaigns, which are still limited and were not involved in Citizens United at all, and “independent expenditures,” which is spending on elections that is not coordinated with any candidate or campaign. The court said independent expenditures — for example, spending your own money to take out television ads expressing your candidate or policy preferences — are incapable of creating corruption, and therefore beyond government’s authority to limit. They’re “speech” protected by the First Amendment.

There’s a misconception that the Roberts Court invented the concept of corporate personhood for constitutional purposes. It didn’t. Another misconception is that the court blessed Super PACs. It didn’t; none existed at the time of the decision. The creation of Super PACs was probably an unintended consequence of the decision. And the court did not rule that corporations could now put “dark money” into political campaigns. The court, in fact, upheld the disclosure provisions of McCain-Feingold. A lot of dark money (undisclosed, unlimited) goes through 501(c)(4) “social welfare” advocacy groups like the Chamber of Commerce, Karl Rove’s Crossroads GPS and others, but that wasn’t involved in Citizens United at all.

Will you discuss the court’s decision in the ruling on violent video games?

The court struck down California’s law prohibiting the sale of extremely violent video games to minors. Justice Scalia’s caustic, cynical, playful opinion is a classic. The court held that video games are “speech,” as deserving of First Amendment protection as books, movies, etc. The court rejected the state’s contention that violent games are of so little social value that they don’t deserve any constitutional protection. The court found no evidence that playing the games caused actual violence and no credible evidence that gamers’ own psyches were harmed.

You could say this is just another pro-business effort by the court, this time benefitting the highly profitable video game industry. But it was more. The opinion was an impressive display of how potent an engine, for better or for worse, the modern First Amendment has become.

Where do libertarian principles fit into Free Speech rulings?

The Roberts Court has not abandoned the First Amendment’s libertarian tradition. It has continued to find protection for unpopular and even disturbing speech, including bigoted funeral protests, racial insults, and hate speech. It has protected the speech rights of congenital liars and registered sex offenders. Some political conservatives — including judges — are also libertarian, not trusting the government to make the decisions about what speech is valuable and what isn’t.

You have practiced law for many years, have argued First Amendment cases before the Supreme Court, have seen many changes. Is it possible that the First Amendment can be retooled?

Not likely that the current justices will renounce their background, training, personal philosophy and track record. But not impossible that some justice, perhaps most likely the chief (the court will forever bear his name), will shift position and call a halt to subserviently carrying out the agenda of a particular party. No justice should want to be viewed by history as a political hack whose votes are entirely predictable and congenial to special interests.

Frances Starn’s recent writings are online at francessmithstarn.in