The United States citizens are blessed with a concise and thoughtful constitution notable for its brevity and power. One incredibly enabling portion of our Constitution is the First Amendment. Currently in our political culture we are strengthened by our right to free speech. It is difficult to remember that those words were composed at a time when women did not have the right to vote or express themselves politically, and the institution of slavery, prevalent at the time, was the ultimate denier of free speech. The First Amendment grants rights broadly defined and yet does not guarantee rights we have come to accept as universal or allow for any framework of limits to speech which we have come to accept in our political culture as necessary. In America we take it for granted for example that everyone who is qualified has the right to vote, and that of course only individuals hold that right. We know that we do not have the right to yell fire in a crowded building, nor do we have the right to publish slander or libel. We don't accept producers lying about their product or speech that can be construed as a threat to personal harm. None of these rights or limits has any constitutional basis in the First Amendment but have become an accepted foundation of legal precedents.
A more difficult and tenuous understanding exists in American political culture with regards to the rights of political speech. As mentioned, it is a fundamental belief of all Americans that every qualified registered American citizen should have the right to an equal vote in pertinent elections. We all know that this right is only afforded to individuals, not other entities that are given the status of legal “persons”. What we really don't have a clear understanding of in our political culture is what forms of political speech there are and who has an inherent right to them.
There are two types of political speech, direct and indirect. Direct political speech is direct actions an individual undertakes to facilitate the election of the candidate of their choice. The most pure form of direct political speech is voting. The other form of direct political speech is by campaign contribution where the amount of money or in kind donation has a direct effect on the ability of your candidate to conduct their campaign.
Indirect political speech is all forms of political speech intended to affect the votes, contributions and ideas of others for the purpose of influencing the outcome of an election. Indirect political speech would of course include all types of media transmissions, campaign and negative advertising, and publications. When it comes to indirect political speech, loud voices, enabled by wealth or the economics of association can be influencing but not determining and for this reason need be allowed to the greatest extent. Our political culture currently understands that some limitations may be necessary to keep the strongest voices from drowning out the lesser in the political process. This is the basis for the current precedents in campaign finance laws as concerns PACs. Unfortunately again, there is no basis for the political speech restrictions in the Constitution. Even though our current political culture realizes they are necessary to some extent, the basis on which those presidents lie is without a foundation. This is certainly the lesson of recent Supreme Court decision of Citizens United, and the American polity can only expect a further crumbling of precedents which threatens the opportunity for the indirect speech of the average voter to be heard in the marketplace of ideas surrounding political campaign.
Even though it is not directly defined by the First Amendment, our political culture has a definite understanding of how the direct form of political speech called voting works. It is important to note that this right is not universally guaranteed by the Constitution. At the time the First Amendment was drafted it was the assumed political culture that women did not vote; only landowners in fact were voters. We have laws that allow us to vote but there is no constitutional guarantee to all qualified citizens of the right to vote.
The other direct right of political speech, which we understand in our political culture is necessary to limit is the right to contribute to campaigns and political parties. Recently there has been a great deal discussion and controversy over the expanding position and speech of groups such as unions, corporations, political action committees, and other groups and associations to contribute and it is apparent that all limits all to campaign contributions and to those donations by groups and associations are tenuous at best and based upon current interpretation of precedent. Again, the First Amendment gives us no guidance or basis for limitation on these direct political speech rights.