Bench Memos

Prof. Kathleen Sullivan: Citizens United Has Been “Unjustly Maligned”

In an article in the new issue of the Harvard Law Review, Stanford law professor Kathleen M. Sullivan—who is often mentioned as a leading “progressive” candidate for a Supreme Court nomination—distances herself from the bashing of the Citizens United ruling that so many others on the Left have engaged in. From her conclusion (boldface added):

Citizens United has been unjustly maligned as radically departing from settled free speech tradition. In fact, the clashing opinions in the case simply illustrate that free speech tradition has different strands. The libertarian strand from which the majority draws support emphasizes that freedom of speech is a negative command that protects a system of speech, not individual speakers, and thus invalidates government interference with the background system of expression no matter whether a speaker is individual or collective, for-profit or nonprofit, powerful or marginal. The egalitarian strand on which the dissent relies, in contrast, views speech rights as belonging to individual speakers and speech restrictions as subject to a one-way ratchet: impermissible when they create or entrench the subordination of political or cultural minorities, but permissible when aimed at redistributing speaking power to reduce some speakers’ disproportionate influence.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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