THE BLOG
03/28/2010 05:12 am ET Updated May 25, 2011

Citizens United and the Commentariat

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.