Bench Memos

Justice Kennedy Vigorously Defends Citizens United

The National Law Journal reports (registration required) that at an event at Harvard Law, Justice Anthony Kennedy vigorously defended his opinion in Citizens United v. FEC (2010), the often-mischaracterized case about whether the government can ban a movie near an election.

As Justice Kennedy clearly remembered six years later, the Obama Administration’s position at the first oral argument was preposterous (and perhaps a little bit too candid):

Remember: the government of the United States stood in front our court and said it was lawful and necessary under the [McCain-Feingold] Act to ban a book written about Hillary Clinton in the prohibited period of six, three months before the election. That can’t be right.

No, that wasn’t right at all. Justice Kennedy also pointed out a major problem with left-wing criticisms of Citizens United:

I wasn’t surprised The New York Times was incensed their little monopoly to affect our thinking was taken away. I was surprised how virulent their attitude was [toward corporate speech]. Last time I looked, The New York Times was a corporation. This [attitude] meant the Sierra Club, the chamber of commerce in a small town couldn’t take out an ad.

Spot on. 

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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