Former U.S. Court of Appeals Judge Michael W. McConnell, who is now a law professor, has an article in the most recent edition of Yale Law Journal about Citizens United. He says the outcome was correct, but that the case should have been presented as one dealing with freedom of the press, not as free speech. Here is a link to the synopsis. Inside the synopsis, there is a link to the entire article.
The First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…”. The McConnell article sets forth the evidence that when the First Amendment was written, “press” didn’t mean the institutional press. It meant anyone who disseminated anything in mass-produced written form.
While McConnell was on the Tenth Circuit in 2008, he co-signed the decision Yes on Term Limits v Savage, 550 F 3d 1024, which struck down Oklahoma’s law banning out-of-state circulators. The lower court had upheld the law. The 10th circuit decision is the biggest ballot access defeat Oklahoma has ever suffered. Oklahoma officials are still angry about that decision, which forced them to stop prosecuting Paul Jacob and two other individuals on felony charges of conspiring to bring out-of-state circulators to Oklahoma. Oklahoma hates that decision so much, earlier this year it filed an amicus curiae brief in Judd v Libertarian Party of Virginia, asking the U.S. Supreme Court to hear the Virginia case, which is the same issue, the constitutionality of bans on out-of-state petitioners. Thanks to Rick Hasen for the link.
