[And Also: The overheated replies to this ruling, including the assumption this will mostly benefit Republicans (the union limits ignored in the process), annoy me. Glenn Greenwald, who has no love lost to corporate control and so forth, provides a more sane reply today.]
He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama clergymen, and against petitioner the New York Times Company, a New York corporation which publishes the New York Times, a daily newspaper.
-- NYT v. Sullivan
This great moment of First Amendment jurisprudence ultimately concerned written material which led to liability to five persons -- four humans and one artificial person aka a media corporation. At no point did the Court suggest that the protections involved depended on who brought the suit. Or that corporations have the same rights as you and I. Even in respect to First Amendment matters. So, why should today's ruling against the FCC be understood differently?
Some point to the hypocrisy. Suddenly, judicial restraint goes out the window (Roberts' concurrence), and we should bluntly rely on the text (see Scalia's concurrence) over specific original understanding (after all, things have changed since then). The apparent basic principle that protects corporations here as much as non-corporations was not really honored well in the past. "Plausible" narrower alternatives that would not make new law in the face of complex factual questions are available. Corporations corrupt the process (many links).
Fine. The concurring opinions can be used to show why the federal courts should rely on text to overturn Prop 8. I'll call them on it, if they reject it based on false claims of restraint. The experts in the field have a good point that at worse (best?) they should have remanded it in June before deciding it without a factual record dealing with exactly what they planned to do. Free speech should be honored consistently, though Kennedy (the author here) does this more than others.
And, money does "corrupt" the process, but money will always be there. It is a cost of the First Amendment, one that can be addressed in other ways. Some include: the limits (disclosure/disclaimer) upheld here, public financing, free ad time, grants to nonprofits that can be used to promote their causes during election times, and so forth. Finally, even Scalia points out that corporations can be limited to their charters. This can include what they donate money to promote.
But, who is President affects the bottom line, even if anti-abortion campaigns might not. The way they went about it is open to criticism, but the bottom line of today's ruling is less so. A lot of talking past each other, aided by who wrote the lead opinion (the need for concurrences largely based on Kennedy's penchant to not answer dissenting points) and dissent (written by an outlier here, Breyer and company not going as far as Stevens did in the past), notwithstanding.
I talk more about the rulings over at the Slate fray.