You’ve heard about the recent Supreme Court decision in Citizens United v. Federal Election Commission. Overturning the heart of the McCain-Feingold Act, the Court said that corporate donations to elections cannot be limited because it would violate the First Amendment.
How bad is this? Said the New York Times, “The Supreme Court has handed lobbyists a new weapon. A lobbyist can now tell any elected official: if you vote wrong, my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election.”
Former Supreme Court Justice Sandra Day O’Connor added she is concerned that “the problem of campaign contributions in judicial elections might get considerably worse, and quite soon.”
There’s a very troubling sexual angle to this. And no, it’s not about a large bank or insurance company donating a dozen naked women to their favorite congressional candidate.
Quite simply, the Supreme Court—so concerned about supporting the First Amendment rights of non-persons—has shown a remarkable interest in limiting those same rights in individuals when it comes to sex.
Yes, we have Lawrence v Texas (2003), which overturned a law criminalizing private consensual sodomy. However, Justice Scalia wrote a scathing dissent in that case, in which he predicted that the decision would be the end of civilization as we know it. Who knew he was so concerned about people marrying their sisters—or their horses?
Justice Scalia has reaffirmed his opposition to your First Amendment rights around sexuality many times, particularly around obscenity—one of the very few types of speech that enjoys no First Amendment protection. If the government wants to punish a TV network, an artist, a teacher, or the average person with a nasty website, they just have to get 12 jurors to say that your speech, painting, or blog is “obscene,” and you lose one of the most precious rights any American has.
The Supreme Court has also declined to rule on the challenge to Alabama’s law criminalizing vibrators; refuses to stop cities from discriminating against adult bookstores, strip clubs, and swingers clubs; and has supported a definition of “child pornography” that is frighteningly broad.
While it’s far, far from ideal, I suppose I can live with corporations buying elections. What I can’t live with is the Supreme Court giving these corporate non-persons the right to express themselves while taking away mine.