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SCOTUS Makes a 'Mr. Smith Goes to Washington' Argument for Free Speech

11:39 AM, Jan 21, 2010 • By MARY KATHARINE HAM
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The famous Capra film about an optimistic outsider's impact on a jaded, entrenched Washington is getting a lot of attention this week, as a friendly populist with a common name rides down to D.C. in his truck.

The Supreme Court's Citizens United decision gave the iconic film yet another mention this week in an argument for free speech with a populist appeal. From Justice Kennedy, writing for the majority:

When word concerning the plot of the movie "Mr. Smith Goes to Washington" reached the circles of Government, some officials sought, by persuasion, to discourage its distribution...  Under Austin, though, officials could have done more than discourage its distribution—they could have banned the film. After all, it, like Hillary, was speech funded by a corporation that was critical of Members of Congress. Mr. Smith Goes to Washington may be fiction and caricature; but fiction and caricature can be a powerful force.

Modern day movies, television comedies, or skits on Youtube.com might portray public officials or public policies in unflattering ways.  Yet if a covered transmission during the blackout period creates the background for candidate endorsement or opposition, a felony occurs solely because a corporation, other than an exempt media corporation, has made the “purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of

value” in order to engage in political speech. Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election.  Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime. Yet this is the statute’s purpose and design.

Some members of the public might consider Hillary to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation’s course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make. 

“The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.”

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