Cite as: 558 U. S. ____ (2010)
5
SCALIA J.,concurring
Politics in the First Federal Congress, 15 J. Early Republic 169 (1995). The New York Sons of Liberty sent a circular to colonies farther south in 1766. P. Maier, From Resistance to Revolution 79–80 (1972). And the Society for the Relief and Instruction of Poor Germans circulated a biweekly paper from 1755 to 1757. Adams, The Colonial German-language Press and the American Revolution, in The Press & the American Revolution 151, 161–162 (B. Bailyn & J. Hench eds. 1980). The dissent offers no evidence—none whatever—that the First Amendment’s unqualified text was originally understood to exclude such associational speech from its protection.[1]
- ↑
- The best the dissent can come up with is that "[p]ostratification practice" supports its reading of the First Amendment. Post, at 40, n. 56. For this proposition, the dissent cites Justice White’s statement (in dissent) that "[t]he common law was generally interpreted as prohibiting corporate political participation," First Nat.Bank of Boston v. Bellotti, 435 U. S. 765, 819 (1978). The sole authority Justice White cited for this proposition, id., at 819, n. 14, was a law-review note that made no such claim. To the contrary, it stated that the cases dealing with the propriety of corporate political expenditures were "few." Note, Corporate Political Affairs Programs, 70 Yale L. J. 821, 852 (1961). More specifically, the note cites only two holdings to that effect, one by a Federal District Court, and one by the Supreme Court of Montana. Id., at 852, n. 197. Of course even if the common law was "generally interpreted" to prohibit corporate political expenditures as ultra vires, that would have nothing to do with whether political expenditures that were authorized by a corporation’s charter could constitutionally be suppressed.
- As additional "[p]ostratification practice," the dissent notes that the Court "did not recognize any First Amendment protections for corporations until the middle part of the 20th century." Post, at 40, n. 56. But it did that in Grosjean v. American Press Co., 297 U. S. 233 (1936), a case involving freedom of the press—which the dissent acknowledges did cover corporations from the outset. The relative recency of that first case is unsurprising. All of our First Amendment jurisprudence was slow to develop. We did not consider application of the First Amendment to speech restrictions other than prior restraints until 1919, see Schenck v. United States, 249 U. S. 47 (1919); we did not invalidate a state law on First Amendment grounds until 1931, see
