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Monday, January 11, 2021

Citizens United meets cancel culture

The premise of the campaign-finance/First Amendment connection is that spending money to support candidates (as expenditures and contributions) is a form of expression by the donors/spenders--expressing their support for the candidate, what the candidate stands for, and what he will do in office. Whether true, the premise could be tested in the coming months and years as companies request the return of donations or refuse to donate to candidates who voted in favor of the objections to electoral votes.

Shouts of "cancel culture" by the "leftist mob" are sure to follow. But if donating to candidates is First Amendment activity, then so must refraining from donating to candidates who act in ways of which you do not approve. To insist that corporations--whose constitutional right to donate you have demanded--must continue funding you regardless of your actions reveals that complaints about cancel culture really are complaints about counter-speech.

Mind you, I do not expect this newfound corporate conscience to last. But while it does, it is the logical flipside of the Court's entire body of campaign-finance jurisprudence.

Posted by Howard Wasserman on January 11, 2021 at 02:42 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink


But I can retract a book or delete a blog post. So it is possible to "take back" speech. Or, going forward, to decline to speak again. Either will cause screaming about cancel culture. Either is an exercise of speech.

Posted by: Howard Wasserman | Jan 11, 2021 8:40:17 PM

I cannot un-yell fire once I've yelled it. So once I've donated, is demanding a return of the donation speech? Perhaps, but it is a different kind of speech than the original donation was.

Posted by: Mary Pareja | Jan 11, 2021 7:55:45 PM

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