During the 2012 election, the two main political parties and their supporters spent an estimated $6 billion on campaign advertising—most of it on television—more than doubling the previous record amount spent by the Obama and McCain campaigns during the 2008 presidential election. The main contributor to the new record was the unlimited amount that corporations and rich individuals could now spend, thanks to the 2010 Citizens United v. Federal Election Commission ruling by the U.S. Supreme Court. The 5-4 decision said that it was a violation of First Amendment free speech rights for the federal government to limit corporate or union spending for TV and radio advertising, usually done through organized “super-PACs” (political action committees) that are most often sponsored by corporate interests or super-rich donors. The ruling curtailed the bipartisan 2002 McCain-Feingold campaign-finance law that had prohibited unlimited spending during elections. The idea underpinning the 2002 law was to ensure that no one group or organization could “buy” an election through superior financial advantage.

In 2012, the annual State of the First Amendment national survey found that 63 percent of respondents said that corporations or unions should not be able to spend unlimited amounts to oppose or support a candidate, while 30 percent said, yes, they should be able to spend whatever they want (7 percent were undecided).¹ While the Supreme Court decision ran counter to public opinion, many advocates on the political Right and some on the Left offered that the amendment—which says “Congress shall make no law … abridging the freedom of speech”–means what it says. Whereas many who support Citizens United make a free-market argument that individuals and corporations in a free country should be able to spend their money on whatever they want, traditional First Amendment supporters like Gene Policinski of the First Amendment Center argue that the “good intentions” behind the idea of limiting campaign spending “don’t justify ignoring a basic concept that the Supreme Court majority pointed out in its ruling: Nothing in the First Amendment provides for ‘more or less’ free-speech protection depending on who is speaking.” In criticizing attempts by Congress to restore campaign finance limits, Policinski asks this question in his defense of Citizens United: “Do we really want Congress to have the power to exclude certain groups from participating in political speech?”²

Was the direction of the 2012 presidential campaign overly determined by those who had money to buy those ads that many Americans used to make decisions in a national election? As it turns out, candidate Mitt Romney benefitted from nearly twice as much national party and super-PAC spending, and outspent Barack Obama’s campaign, $1.238 billion versus $1.107 billion.³ Yet an advantage in advertising spending is only one of many variables; Obama still won reelection. Nevertheless, those with limited means are at a clear disadvantage compared to those who have money when it comes to buying expensive commercial speech and shaping the direction of a presidential campaign. Harvard Law School professor Lawrence Lessig argued in 2012 that money corrupted American politics long before the Citizens United ruling. “Politicians are dependent upon ‘the funders’–spending anywhere from 30 percent to 70 percent of their time raising money from these funders,” he wrote. “But ‘the funders’ are not ‘the People’: .26 percent of Americans give more than $200 in a congressional campaign; .05 percent give the max to any congressional candidate; .01 percent—the 1 percent of the 1 percent—give more than $10,000 in an election cycle; and .0000063 percent have given close to 80 percent of the super PAC money spent in this election so far. That’s 196 Americans. …”⁴ Given the Citizens United ruling, what can be done to give all citizens a voice in the campaign finance system, and make them “patrons” of the political process?

THE CULTURAL AND POLITICAL STRUGGLES OVER WHAT CONSTITUTES “FREE SPEECH” or “free expression” have defined American democracy. In 1989, when Supreme Court Justice William Brennan Jr. was asked to comment on his favorite part of the Constitution, he replied, “The First Amendment, I expect. Its enforcement gives us this society. The other provisions of the Constitution really only embellish it.” Of all the issues that involve the mass media and popular culture, none is more central—or explosive—than freedom of expression and the First Amendment. Our nation’s historical development can often be traced to how much or how little we tolerated speech during particular periods.

The current era is as volatile a time as ever for free speech issues. Contemporary free speech debates include copyright issues, hate-speech codes on college and university campuses, explicit lyrics in music, violent images in film and television, the swapping of media files on the Internet, and the right of the press to publish government secrets.

In this chapter, we will:

One of the most important laws relating to the media is the First Amendment (see the marginal quote on this page for its full text). While you’ve surely heard about its protections, do you know how or why it was put in place? Have you ever known someone who had to fight to express an idea—for example, was anyone in your high school ever sent home for wearing a certain T-shirt or hat that school officials deemed “offensive”? Have you ever felt that your access to some media content was restricted or censored? What were the circumstances, and how did you respond? For more questions to help you understand the role of freedom of expression in our lives, see “Questioning the Media” in the Chapter Review.