"The majority is deeply wrong on the law," according to a critic of January's U.S. Supreme Court ruling in Citizens United v. Federal Election Commission. "Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money."
Whose opinion is this? We don't know exactly, because it is not attributed to any individual. It is an unsigned editorial in the New York Times. That is to say, it reflects the collective opinion of the Times editorial board, a division of the New York Times Co., a corporation that exists to make money.
It's lucky for the New York Times Co. that the Supreme Court upheld its First Amendment rights. Otherwise, it could not have exercised its First Amendment right to denounce the court for upholding its First Amendment rights.
Actually, that's not quite true. As Justice Anthony Kennedy noted in his opinion, the McCain-Feingold campaign finance law -- which made it a felony for corporations to engage in certain political speech -- exempted "media companies" like the New York Times Co. (and News Corp., which employs this columnist). Without this exception, the New York Times would not have been permitted to endorse candidates for federal office within 30 days of a primary or 60 days of a general election.
McCain-Feingold, in other words, granted a small group of companies, including the New York Times Co., the privilege to speak freely about politics, while denying it to all other corporations -- not only "companies...that exist to make money," but also labor unions and taxable non-profits that exist to represent a point of view, including the advocacy arms of the Sierra Club, the American Civil Liberties Union, and the National Rifle Association.
The editorial published by the New York Times Co. includes no mention of the special privilege the New York Times Co. enjoyed under McCain-Feingold -- a privilege that creates at least the appearance of a journalistic conflict of interest.
The Times's opinion is wrongheaded as well. The implication of the paper's cramped view of the First Amendment is the privilege the New York Times Co. enjoyed under McCain-Feingold was just that: a privilege granted by Congress, not a right guaranteed under the Constitution. "It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans have to speak out in support of a candidate," the Times editorialized.
But a media corporation is no less an "artificial legal construct" than is any other corporation. As Justice Clarence Thomas argued in McConnell v. FEC (2003), such reasoning would permit "outright regulation of the press." Some on the far left, complaining about "corporate domination" of the media, would like to see just that.
Such regulation would not be without precedent. In 1962, Alabama's Birmingham Post-Herald published an Election Day editorial endorsing a local ballot measure. The editor, James E. Mills, found himself in the dock for "electioneering" in violation of the Alabama Corrupt Practices Act.
The Alabama ban applied only on Election Day, a much narrower restriction than McCain-Feingold's now-defunct 30- and 60-day limits. The state said the law's purpose was to prevent "confusive last-minute charges and countercharges...when, as a practical matter, because of lack of time, such matters cannot be answered or their truth determined until after the election is over."
There was an argument, too, that citizens needed protection from aggregations of power. "Many cities, especially small towns, had only one newspaper, and it was the place from which people got most of their news," the celebrated First Amendment lawyer Floyd Abrams told me in an interview for the Wall Street Journal.
The case made it to the Supreme Court, which in Mills v. Alabama (1966) ruled unanimously in the editor's favor. "No test of reasonableness can save a state law from invalidation as a violation of the First Amendment when that law makes it a crime for a newspaper editor to do no more than urge people to vote one way or another in a publicly held election," Justice Hugo Black wrote for the court.
But what if Alabama had argued instead that the Post-Herald had no First Amendment rights because it was published by a corporation? "There are an awful lot of journalists that do not recognize that they work for corporations," observes Abrams, part of the winning legal team in Citizens United.
Like any good lawyer, Abrams can argue in the alternative. When I interviewed him, I posed a hypothetical: Suppose that Citizens United had gone the other way, that Congress subsequently abolished the media exemption, and that a newspaper corporation hired him to argue that it does have First Amendment rights, even if other corporations do not. How would he make the case? He cited Justice Potter Stewart, who held the view that "the institutional press was the only entity set forth in the Bill of Rights as deserving of special protection." Accordingly, Abrams said, "I would argue...that because of the role of the press, it was unconstitutional...to bar the press from doing everything it now does."
By this argument, freedom of speech and freedom of the press are fundamentally different kinds of rights. Freedom of speech, the Times claims, belongs only to individuals, whereas freedom of the press, in Abrams's backup argument (which the Times presumably would endorse), belongs to select corporations -- those that are part of the "institutional press."
This distinction might have made sense in the 18th and 19th centuries, before the advent of radio and other spoken-word mass media. Today, however, it raises all sorts of questions. Is a TV station part of the institutional press, even though it produces spoken rather than written words? Does a lone blogger enjoy the same constitutional rights as a newspaper company? When the Times engages in speech by posting podcasts and videos on its website, is that protected too because the Times is part of the institutional press? What about a company like Salon Media Group, which uses no printing presses and publishes only online?
If the notion of a rigid legal distinction between "speech" and "the press" was not already non-sensical, the web renders it so. Almost every company has a website. Is it really plausible that the New York Times's website has full protection under the Constitution while other companies' sites have none at all?
In past generations, the New York Times Co. had a proud tradition as a defender of expansive First Amendment rights. It was the prevailing litigant in two landmark Supreme Court cases, New York Times Co. v. Sullivan (1964) and New York Times Co. v. U.S. (1971). The former, which established a strong presumption for free expression in defamation cases, involved a political advertisement. In the latter, the Pentagon Papers case, the Times was represented by a young lawyer named Floyd Abrams.
What a shame to see a once-great corporation become a fair-weather friend of free expression.
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