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Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues

throughout the U.S. on behalf of the PLO after applying the more lenient standard of review applied to content-neutral speech.84 Similarly lenient review may be unlikely here, however, in part because the majority in Citizens United noted that “[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content.”85 This could potentially be a problem with restrictions on corporations with small percentages of foreign ownership because the speech of the U.S. majority owners would be affected by these restrictions. 86

Vagueness

Certain proposed restrictions could potentially be challenged on the grounds that they are vague. Due process under the Fifth Amendment requires that criminal statutes “give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused.”87 Statutes that fail to do this will be held “void for vagueness.”88 Vagueness is of particular concern with governmental restrictions on speech and has been used to void statutes involving loyalty oaths,89 obscenity and indecency,90 and restrictions on public demonstrations.91 Some commentators have expressed concerns that difficulties in determining corporate ownership, particularly in the case of corporations whose stock is publicly traded, could raise vagueness issues because corporations might not know whether they had the requisite percentage of foreign ownership.92 Similar concerns could also arise because corporate ownership can shift over time, or because of difficulties in determining what, beyond ownership, constitutes control or influence.93 Such concerns may be particularly apposite given that the majority in Citizens United suggested that complicated regulations of speech can serve to unconstitutionally chill speech. 94

84 Mendelsohn v. Meese, 695 F. Supp. 1474, 1476-77, 1482-83 (S.D.N.Y. 1988) (requiring the government to show only that the challenged provision is within the government’s constitutional power in furtherance of an important or substantial government interest that is unrelated to suppression of free expression and is no greater than essential to further the government interests). See also Kleindienst v. Mandel, 408 U.S. 753 (1972) (upholding a visa denial despite implication of the First Amendment rights of U.S. citizens).

85 Citizens United, slip op., at 31. The dissent in Citizens United would, in contrast, have treated the restrictions on electioneering communications as a time, place, and manner restrictions, which are subject to more lenient scrutiny. Citizens United, slip op., at 114 (Stevens, J., dissenting).

86 Cf. Mendelsohn, 695 F. Supp. at 1481 (stating that associating with or accepting money from the PLO does not place American citizens outside the scope of constitutional protection).

87

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Musser v. Utah, 333 U.S. 95, 97 (1948). Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).

89 See, e.g., Keyishian v. Bd. of Regents, 385 U.S. 589 (1967); Baggett v. Bullitt, 377 U.S. 360 (1964); Cramp v. Bd. of Pub. Instruction, 368 U.S. 278 (1961).

90 See, e.g., Reno v. ACLU, 521 U.S. 844, 870-874 (1997); Interstate Circuit v. City of Dallas, 390 U.S. 676 (1968); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Winters v. New York, 333 U.S. 507 (1948).

91 See, e.g., Cantwell, 310 U.S. at 296; Coates v. City of Cincinnati, 402 U.S. 611 (1971); Gregory v. City of Chicago, 394 U.S. 111 (1969).

92 See, e.g., Gerken, supra note 57 (“It may be necessary to target certain regulations at foreign shareholders rather than corporations as such.”).

93 The Small Business Administration, for example, has a rule that spans four pages in the Code of Federal Regulations defining what constitutes “control” for purposes of the 8(a) Minority Business Development Program. See 13 C.F.R. § 124.106.

94 Citizens United, slip op. at 18 (“As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against [Federal Election Commission] enforcement must ask a government agency for (continued...)

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