Nothing is quite so inspiring as the sight of journalists, in high dudgeon, trashing the First Amendment. Such has been the rule since last Thursday, when the Supreme Court issued its opinion in the campaign finance case, Citizens United.
For the uninitiated, the cause of the hysteria, at places like The New York Times and the Washington Post, is the Court's entirely correct decision to liberate political speech from the clutches of the Federal Election Commission, such that labor unions, for-profit and nonprofit corporations will hereafter be able to spend general funds on the placement of issue ads and other kinds of what the FEC refers to as "electioneering communications."
Because campaign finance "reform" has always been a hotly politicized issue, it's not surprising that politicians, from the White House to Congress, have weighed in on this issue with more heat than light. But it's something else again to see journalists -- all of whom zealously guard and enjoy their own First Amendment rights -- turn a blind eye to those same rights where they're someone else's.
The journalists' criticism of the Court's decision is 1) that it is unnecessarily overbroad; and 2) that it will allow corporations ( by which they mean large for-profit corporations) to dominate the political environment by the fact, or threat, of campaign advertising.
Even if one takes these journalists at their word -- that their motive is a value-free concern for the political process rather than a reflection of their own political views -- we can say without fear of contradiction that, at least in this regard, they value the political process more than they value free speech.
Among the citizenry generally, such sentiments would be neither unexpected nor especially hurtful, but when they issue from journalists they are both. This, because as people who are professionally engaged in such matters know, the Speech Clause of the First Amendment is not divisible by its applications. It doesn't apply just to the print media or broadcasting, news or entertainment, professional journalists or people at large, but to all of these and then some.
And the simple truth is that if you weaken the First Amendment in any area you weaken the whole of it. This comes about because of the way that precedent is applied, not just in the courts but in policymaking venues as well.
Corporations enjoy constitutionally protected speech rights even where the speech in question is just commercial speech (speech that does no more than propose a commercial transaction.) There's no question about this. There is lots of case law, most notably in Central Hudson. Given this, how much greater is the value, under the constitution, of their political speech?
The constitutional weakness in the journalists' criticism of Citizens United to one side, they are also wrong on its political effects. Corporations, particularly large and publicly owned corporations, will be loathe to spend their general funds on election campaigns. This, because they know that, by doing so, they will inevitably attract criticism from some of their stockholders, and from the disfavored party and candidate(s), in any given election. Corporations much prefer to stay out of election contests, and to allocate even their PAC money to incumbents, or to both incumbents and challengers.
And what if, despite the general aversion, it sometimes happens that corporations do spend general funds on election campaigns? Given their reluctance to get involved in this way, perhaps the public ought to hear what they have to say. It's not, after all, as though such corporations are without their constituencies.
Indeed, when you consider the vast number of stakeholders that any large company has among its employees, stockholders, vendors and customers, the company's views are vastly more representative and diverse than those, say, of the editorial board of The New York Times.
As for the argument that the Supreme Court overreached in this case, a couple observations. First, while a number of commentators are now saying that the Court should have allowed the Citizens United film ("Hilary:The Movie") to be broadcast, that's a point they didn't make before the decision came down.
Much more important, this criticism ignores the history of this case, most importantly oral argument when it first came before the Court, on March 24 of last year. It was at that time that the government, which was there to defend McCain-Feingold in the person of deputy solicitor general Malcolm Stewart, inadvertently spelled out just how speech-killing our campaign-finance system might be.
Asked by Justice Alito if the government believed McCain-Feingold would permit like restrictions were the product distributed on the Internet, or as a DVD or a book, Stewart responded that it could be applied to all of those, that it could even require banning a book that made the same points.
As Bradley Smith, writing in National Affairs put it,
There was an audible gasp in the courtroom. Then Justice Alito spoke, it seemed, for the entire audience: 'That's pretty incredible.' By the time Stewart's turn at the podium was over he had told Justice Anthony Kennedy that the government could restrict the distribution of books through Amazon's digital book reader, Kindle; responded to Justice David Souter that the government could prevent a union from hiring a writer to author a political book; and conceded to Chief Justice John Roberts that a corporate publisher could be prohibited from publishing a 500-page book if it contained even one line of candidate advocacy.
In other words, it wasn't until after they had heard this--straight from the horse's mouth as it were -- that the Court issued, in June, its surprising order that the case be reargued and expanded to include two of the Court's earlier rulings.
Viewed from a First Amendment perspective, McCain-Feingold was the worst piece of legislation ever enacted and subsequently upheld as constitutional. That so many journalists are unhappy with its undoing is a black mark on their profession and on them as individuals.
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In fact, this indisputable logic should also apply to the right to Vote, and the right to hold office. Enron for President in 2012! Why are all you liberals trying to keep the Corporations down?
A truly excellent post that is a mirror reflection of the thoughts of many.
I note that the MSM does very little reporting on the Alito questioning of Stewart. His responses totally burned the FEC's case and so it should.
Government banning books indeed!
I can guarantee you that come November we will be seeing corporately funded television advertisements endorsing one candidate or another, and when we look closely at that candidate, we will see that, obviously he's aligned with that corporation instead of with the people he is running to represent.
This corporate money into elections will also push out entirely qualified or well meaning people from the process because they will not be well connected or have access to funding for their campaigns, no matter how well they would serve their consituents if elected.
Well, I should hope not! Corporate officers are bound by contract and bound by law to make decisions in the interesrts of their shareholders. If corporations are not focused on the bottom line, they are not acting in the interests of their shareholders. Altruistic corporations should cease to exist in relatively short order.
The SCOTUS decisions was a travesty of justice and a mockery of our Constitution.
McCain-Feingold was the mockery of our Constitution.
The first of those rights was Life.
Which Corporation qualifies as a living entity?
Which one qualifies as a "MAN".
In the preamble to the Constitution, our founders continued and clarified the intent of the Declaration of Indepenence when it wrote "We the People...preserve the benifits of our UNION to OURSELVES.
It is clear to me the supreme court utterly failed in it's mission to uphold and correctly interpret the Constitution.
The Facsism inherent within the ruling is unsurprising though tragic and beyond sad.
If this ruling is aloud to stand as the Law of the Land then people of good will must consider where we are and where we are going.
We already suffer incalcuable corruption of our so called Democracy by the moneied powers that be.
Now?
The disgust I feel is only matched by my own determination that my guns will be clean, loaded, and kept conveniently located at all times from now on.
Unlike the Jews in Nazi Germany I will make certain that at least one will out with me, when they come for me.
And they will come because I will not be silenced or live in fear.
That is for Republicans and Democrats to do.
I am neither being an American before all else.
God Bless us all and good luck.
TREVOR POTTER: I'm laughing, because I think that is the epitome of a red herring here. The Solicitor General was answering what Floyd correctly says was a hypothetical. That's where you are in law school, and they say, "Well, just supposed the facts weren't as they are, but they were something else entirely." The reality is there has never been a case in all the years we have had these laws prohibiting corporate spending prosecuting anyone for publishing a book.
The law itself has an exemption for commercial speech. So, if somebody is engaged in selling a book, it's completely exempt anyway. There's an exemption for press activity. So, this goes to my point, what we're doing here -- and I think this is why it's dangerous -- is we're essentially having a high level law school seminar on the Supreme Court about hypothetical, constitutional questions. But the potential result of that, because it is the Supreme Court, is they could end up changing the real world, when the real world actually functions without any book banning at all.
Fanned
Respectfully, your argument lost me at the end of the third paragraph, where you scold journalists who criticized the outcome of Citizens United for turning a blind eye to "someone else's" right to free speech. In this case, there was no "someone" whose rights were being denied. Every member of every corporation is entitled to the form of political "speech" embodied in making campaign contributions, speaking out on behalf of one candidate or against another, etc., and the McCain-Feingold legislation did nothing to abridge those persons' right to that speech.
In addition, as a man who is clearly familiar with the case law regarding the First Amendment, you are aware that the Supreme Court has recognized for some time that there are indeed limits to protected speech. To suggest that any and all forms of speech deserve equal protection is to be on the wrong side of decades of Supreme Court rulings, which brings us to perhaps the most important reason for alarm at the Supreme Court's decision in Citizens United - the Court in its ruling found itself in just that place, on the wrong side of a hundred years of carefully reasoned precedent. Chief Justice Roberts, a man who proclaimed that his time as Chief would be marked by narrow decisions and a respect for Court precedent, was party to a decision that brazenly flouted both of these promises.
Precisely, however, because of their privileged status under the First Amendment, there is a great need for journalists to understand and to be exemplars of it. Not to do so invites the contempt not just of these journalists themselves but of the First Amendment as well.
You say that "there was no 'someone' whose rights were being denied." Try telling that to the film-making activists at the nonprofit Citizens United whose production (Hilary:The Movie) was, after all, at the heart of this case.
The fact that there are restrictions on free speech--as in yelling 'fire' in a crowded theater--is commonsensical. But is it a cause for celebration? Isn't the fact of such restrictions cause for concern that--as with many of the comments here--those restrictions will be cited as as precedents for other restrictions?
The Court left intact the ban on "soft money" contributions as well as reporting and disclosure requirements. These things, coupled with corporations' aversion to electioneering communications, suggest to me that the practical impact of Citizens United will be minimal, even as the constitutional impact will be considerable, and good.
I guess laws about inciting violence and h8 speech need to be overturned as well.
How about certain kinds of language in front of young kids?
We have all kinds of laws that common sense says we should limit and we do.
I guess we should toss them all out the window on the strength of ONE vote on the SC.
Now the SCOTUS said it is okay for those unconcerned about public opinion to spend billions more for lawmakers to do their bidding.
Maine's argument: "…the Speech Clause of the First Amendment is not divisible by its applications. It doesn't apply just to the print media or broadcasting, news or entertainment, professional journalists or people at large, but to all of these and then some," the last part is on untrue. There are many restrictions: libel, comforting the enemy, Patriot Law, etc.
Shouting fire is wrong and it is, also, wrong to use words directly or indirectly to subvert and subjugate people.
Witness the way big money and stacked courts fostered Franco, Mussolini, and Hitler.
Let us not forget Niemöller's, "Then they came for me—and there was no one left to speak out."
The First Amendment protects a citizen from a powerful government which would decide what speech the citizen would be allowed to read or hear. It's not a right granted to a speaker, but a right granted to a listener or reader. As such, it makes no difference whether the speech being protected comes from a single person, a non-profit organization, a union, a church, or a corporation. It is not the speaker but rather the speech - and the right of the citizen to hear it - which is being protected.
Well done.