Gilbert Cranberg: A SHODDY HIGH COURT RULING

Some court cases have become so embedded in the public’s consciousness that you know immediately from the title what the issue is. Thus, almost everyone identifies Roe v. Wade with abortion. Increasingly, so, too, has “Citizens United” become shorthand for free speech rights of corporations and unions as well as the role of money in politics.

A recent book also could make “Citizens United” synonymous with a Supreme Court ruling that is grievously mistaken. The book, “Too Much Free Speech?” (University of Illinois Press), is by Randall P. Bezanson, a First Amendment scholar at the University of Iowa law school.

Here is Bezanson’s unsparing take on the high court’s 5-4 majority opinion: “… there is good reason to find it logically wanting, historically and textually arid, given to grand and broad statements of law and ultimately dissatisfying. The Court’s opinion never really gets to the substance of the corporate speech issue, instead escaping the need to grapple with text and history and theory by what proved to be a weak and unconvincing expedient of claiming that the decision had already been made in many Supreme Court decisions….With all respect, nothing could be further from the truth.”

Bezanson is not given to overstatement. I know him and his work well, having coauthored two books and several articles with him. He is a careful and painstaking scholar who knows the Supreme Court from the inside, having clerked for Justice Harry Blackmun. If Bezanson denounces the high court ruling in Citizens United as shoddy, as he essentially does, the critique has to be taken seriously.

He could have sensationalized his attack on the ruling by denouncing its reliance on a law student’s work. At one point, the high court’s opinion in Citizens United cited a student’s law review article as support for a particular point. Bezanson noted the reference but didn’t make much of a deal about it. In fact, he praised the student’s effort as “a quite nicely argued piece of scholarship.”

The same can be said for Randall Bezanson’s important book.