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National Review: Judicial Excuses

Today Anthony Sanders discussed judicial activism and Citizens United v. FEC on National Review’s blog “Bench Memos”:

Is it “judicial activism” to forbid the government from censoring a movie? This is not a trick question. Critics of the Supreme Court’s decision in Citizens United v. FEC have been calling it one of the worst examples of judicial activism in history. But Citizens United involved a law passed by Congress that prevented a nonprofit from making a film that criticized a candidate during an election. If that was not a law barred by the First Amendment, then it is hard to understand what “Congress shall make no law . . . abridging the freedom of speech” means. Far from engaging in “judicial activism,” the Supreme Court in Citizens United practiced something courts should be doing every day: “judicial engagement.”

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In the case of Citizens United, the Supreme Court had been allowing the government to run roughshod over the First Amendment for decades. This deferential approach reached its low point in McConnell v. FEC, when the Court allowed the government to ban broadcast communications that mentioned a candidate near an election. As a result, Citizens United was unable to distribute its film, Hillary: the Movie, during the 2008 primary season. As great a victory as the case was, it is a tragedy that Citizens United had to sue to preserve its First Amendment rights and that it was prevented from showing its film for an entire election season. If the Court had been doing its job, Congress would never have had the chutzpa to pass a law banning movies that criticize politicians in the first place.

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