Adam Liptak and the New York Times Finally Start to Catch Up on Citizens United
[Guest post by Aaron Worthing; if you have tips, please send them here.]
Almost a year ago, when Citizens United came down, I wrote the following (language warning at the link):
On January 23, the New York Times denounced the Supreme Court’s ruling in Citizens United v. F.E.C., stating that “the court[] … has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials.” In a twist worthy of Monty Python and the Life of Brian, this editorial was unsigned, representing the voice of the New York Times Co., itself a corporation. It amounted to “this corporation says that no corporation has a right to free expression.”
Next I suppose the entire staff will gather together and chant, in unison, “we are all individuals.”
I went on to point out that the position of Justice Stevens’ dissent, which argued that the Press Clause was meant solely to protect the institutional press, was untenable.
Another argument raised against this decision is that since a corporation is not a “person” it has no right to speak. I find that to be a curious assertion. The Democratic party is not a person, either, but I don’t think any rational person would argue that a law forbidding the Democratic party from advertising would be constitutional. And for that matter, the New York Times Company is not a person either, but that didn’t stop the Supreme Court from reaffirming its right to speech in cases such as NYT v. Sullivan. Is it now the position of the Times that this case was wrongly decided? The notion that corporations are not covered by the first amendment is downright pernicious.
In dissent, Justice Stevens indicated that the institutional press, and only the institutional press, is protected from such regulation by the press clause. This argument proves too much. By that logic, then, Thomas Paine’s Common Sense would not be protected by freedom of the press—an outcome that would surely have appalled the framers of the Constitution. To the founders, freedom of the press was extended to all who published, period.
Well, on Monday Adam Liptak in the New York Times started to notice these problems:
In the year since the Supreme Court handed down its 183-page decision in Citizens United, the liberal objection to it has gradually boiled down to a single sentence: The majority was wrong to grant First Amendment rights to corporations.
That critique is incomplete. As Justice John Paul Stevens acknowledged in his dissent, the court had long recognized that “corporations are covered by the First Amendment.” Justice Anthony M. Kennedy, writing for the majority, listed more than 20 precedents saying that.
But an old and established rule can still be wrong, and it may be that the liberal critique is correct. If it is, though, it must confront a very hard question. If corporations have no First Amendment rights, what about newspapers and other news organizations, almost all of which are organized as corporations?
The usual response is that the press is different. The First Amendment, after all, protects “the freedom of speech, or of the press.” Since “the press” is singled out for protection, the argument goes, media corporations enjoy First Amendment rights while other corporations do not.
But the argument is weak. There is little evidence that the drafters of the First Amendment meant to single out a set of businesses for special protection. Nor is there much support for that idea in the Supreme Court’s decisions, which have rejected the argument that the institutional press has rights beyond those of the other speakers.
Liptak even quotes from Scalia in a manner that suggests that he agrees with him:
Justice Antonin Scalia reviewed the historical evidence in his concurrence.
“It is passing strange,” he wrote, “to interpret the phrase ‘the freedom of speech, or of the press’ to mean, not everyone’s right to speak or publish, but rather everyone’s right to speak or the institutional press’s right to publish. No one thought that is what it meant.”
In a 2008 book, “Freedom for the Thought That We Hate,” Anthony Lewis, a former Supreme Court reporter and columnist for The New York Times, reached the same conclusion. “The amendment surely meant to cover both oral and written expression,” he wrote, rather than “a specially protected institution.”
The Supreme Court’s decisions interpreting the press clause have also said the institutional press has no special status.
All this is a welcome corrective to the year of hyperventilating we have seen from the New York Times opinion columnists. But it raises the question: what took you so long to figure it out?
The answer, it seems, was the myopic and illiberal belief that corporations (besides media companies) would inevitably engage in “bad” speech. Which means that they were missing the entire point of the First Amendment.
Hat tip: Althouse.
[Posted and authored by Aaron Worthing.]
It’s a common failing that we take our modern idioms and read them into usage of the same words in the past. Even when we are aware of it, we still find it hard to avoid.
“The press” in 1776 was not a monolithic institution. The word itself was used because of the process of impressing words upon paper, not because of giant corporate printing presses but rather a common process which average citizens turned to for expression of their own ideas. They printed leaflets, broadsides, posters, cards, and whatever other kind of document seemed most fitting at the time to get their ideas out to the public.
“The press” today is an idiom for a stereotyped journalist, Lois Lane and young Jimmy, who carry a press pass and use a typewriter. But that image, while still common, is obsolete. Everyone gets to impress their ideas on the public. Everyone with a cell phone can post “film at 11.” And everyone on Twitter can come out with “breaking news.”
Gesundheit (cfa313) — 2/9/2011 @ 8:49 amDon’t forget that, using the government’s argument in Citizens United, the government would have had the authority to ban any book it wished.
This was pointed out in oral, and the government, upon being pressed to answer the question, agreed that it was true, ‘but we’d never use our power like that“.
Scott Jacobs (d027b8) — 2/9/2011 @ 9:00 am“Yeah! Who do you think we are?”
Gesundheit (cfa313) — 2/9/2011 @ 9:14 amGesundheit, “the press” in 1776 (or 1788) was not any sort of institution, monolithic or not. “The press” was completely analogous to “speech”. “Freedom of speech” doesn’t mean that there is some entity, institution, or group of people called “the speech”, which is entitled to special protection or privileges; “speech” is an action, and what’s protected is every person’s right to engage in that action. Exactly the same thing applies to “the press”; it’s an action, and the 1A protects ever person’s right to engage in it.
When exactly did newspapers and their staff start referring to themselves collectively as “the press”? And did they do so in a conscious effort to subvert the meaning of the first amendment, and pretend that they had been singled out for some sort of special constitutional status or role? Was it about the same time they also started pretending to be a “fourth estate”?
Milhouse (ea66e3) — 2/9/2011 @ 9:22 amIts interesting that the catalyst for the freedom of the press had more to do with excessive taxation than freedom of speech – I beieve you needed a privy seal or a special stamp for each newspaper which limited their circulation to free “pressed” pamplets – thus the freedom of the press was formulated
It has little or nothin to do with content rather with taxation
EricPWJohnson (0c721c) — 2/9/2011 @ 9:37 amMilhouse – my point exactly. Perhaps I was unclear.
I’d like to know when “the press” started to be used as a collective term for journalists, but it’s hard to blame them for it. In view of the emergence of printed papers as a force against government, royalty, and power (Luther vs. the Pope, etc.) it’s not surprising that they’d develop a Don Quixote complex. According to wiki, the term “fourth estate” was first used by Edmond Burke, here quoted by Thomas Carlyle, “Burke said there were Three Estates in Parliament; but, in the Reporters’ Gallery yonder, there sat a Fourth Estate more important far than they all.”
Well calculated to cause a big head. That was no problem for the first century or two. But now the press is no longer deserving of the title.
Gesundheit (cfa313) — 2/9/2011 @ 10:11 amI ought to have known. Someone else made the point much better. (Also from wikipedia)
Author Oscar Wilde wrote:
Gesundheit (cfa313) — 2/9/2011 @ 10:13 amIn old days men had the rack. Now they have the press. That is an improvement certainly. But still it is very bad, and wrong, and demoralizing. Somebody — was it Burke? — called journalism the fourth estate. That was true at the time no doubt. But at the present moment it is the only estate. It has eaten up the other three. The Lords Temporal say nothing, the Lords Spiritual have nothing to say, and the House of Commons has nothing to say and says it. We are dominated by Journalism.
Gesun
that is exactly right. the press in 1776 was more like, well, bloggers. just some random guy shooting his mouth off, or printing books, or whatever.
Aaron Worthing (e7d72e) — 2/9/2011 @ 10:30 amIn the late eighteenth century, there were two ways to communicate: by speaking and by publishing. The first amendment protected both of those methods of communication. Perhaps had the Constitution been written after Edison, the phrase “freedom of the wax cylinder” would have been added. After Marconi, “freedom of the transmitter tower”. After Al Gore, “freedom of the router”.
I think of “freedom of speech” as freedom for anyone to speak publicly, and “freedom of the press” as freedom for anyone to publish and distribute these publications. It is an easy step to include subsequent technical developments-radio, TV, movies, the Internet, the DVD, the cassette tape, etc.) under the umbrella of the first amendment. Everyone has free speech rights to communicate using these methods, whether an individual or a corporation (with the caveat that limited bandwidth makes RF communications a special case).
MartyH (52fae7) — 2/9/2011 @ 11:05 amEricPWJohnson,
It’s not entirely true that press licensure had nothing to do with content. “Public Occurrences,” America’s first newspaper, was suppressed by the licensure laws after publishing items felt unsuitable by Boston’s political and religious elites. America did not have a second newspaper for 14 years.
Karl (f07e38) — 2/9/2011 @ 11:15 amJustice Antonin Scalia continues to impress, his observation cuts to the heart of the issue and reveals the opposing argument’s bastard provenance. Most of the attendant confusion results from attempting to pound McCain/Finegold’s disruptive square pegs into the First Amendment’s clearly expressed wholes.
ropelight (9e2139) — 2/9/2011 @ 11:58 ammmm, sorry for the bad link, fixed.
Aaron Worthing (e7d72e) — 2/9/2011 @ 12:03 pmNo. “The press” in 1776 was an inanimate object. People who used it were not called “the press”, they were called “people”; just as people who speak are not called “the voice”. “Freedom of the press” means the freedom to use a press, in the same way that “freedom of speech” means the freedom to speak, not the freedom of some set of people called “speech”.
Milhouse (ea66e3) — 2/9/2011 @ 12:11 pmMilhouse, you’re wrong.
James Madison, Report on the Virginia Resolutions
Jan. 1800 Writings 6:385–401
I’m not sure this even matters. The press of the late 18th century, to use our common usage of the term today, was like bloggers of today in some respects.
Dustin (b54cdc) — 2/9/2011 @ 12:27 pmFourth Estate:
LarryD (f22286) — 2/9/2011 @ 12:29 pmbtw, take it easy on the pedant thing. You’re one of my favorite commenters aside from that tendency. Just my opinion, and you’re obviously free to ignore it.
Dustin (b54cdc) — 2/9/2011 @ 12:29 pmAs an aside, USF will be holding a symposium on Citizens’ United on Feb. 26.
aphrael (e0cdc9) — 2/9/2011 @ 12:56 pm(I will be in attendance and would be happy to meet up with anyone else who wants to come. Unlike last year, when I was helping run the thing, this time I’m just an attendee, and so actually have free time. :))
aphrael (e0cdc9) — 2/9/2011 @ 12:58 pmDustin, thanks for the Madison link. And your excerpts do sound as if they refer to people rather than a machine; but right next to them are other excerpts that aren’t capable of such a reading. E.g., from the very same paragraph you mined:
The phrase “the press” is used four times in that paragraph, twice in a clearly passive sense, and twice in what seems to be an active one. Your read of the latter two is that it’s short for “by those who use the press”, while mine would be “by means of the press”. But I’ll admit some of these uses are ambiguous, and perhaps the term was in transition, and people used both senses at the same time. I’d still say that in the phrase “freedom of the press”, the machine was meant, not the people.
Milhouse (ea66e3) — 2/9/2011 @ 1:05 pmAs for pedantry, it’s in my blood; it’s what I do. The whole world rests on fine distinctions.
Milhouse (ea66e3) — 2/9/2011 @ 1:07 pmCorporations should have every right to speak, just as an individual does.
What they – nor anyone – should NOT have the right to do is push their agendas behind secretive, mysteriously funded groups whose names like “Americans for…” (this applies to conservatives and liberals alike).
What’s democratic about that?
JEA (50ec23) — 2/9/2011 @ 1:08 pmI really wish I could attend, Aphrael…
Scott Jacobs (d027b8) — 2/9/2011 @ 1:50 pmScott: IIRC you aren’t a local, though, so it’s a bit of a stretch. But I thought there were some northern Californians, and figured that if they were reading a post about Citizens’ United, they might be interested. 🙂
aphrael (e0cdc9) — 2/9/2011 @ 1:52 pmThe core of the Liberals’ problem with this is that they sincerely believe that any institution – no matter how profitable or monolithic – that forwards their agenda is something other than a ‘Corporation’ …. maybe a Public Service or a part of the Arts and Crafts movement…..
C. S. P. Schofield (71781e) — 2/9/2011 @ 2:01 pmLike the Corporation for Public Broadcasting.
Felipe Carvajal (02954a) — 2/9/2011 @ 3:04 pmI was kind of taken aback by that Litpak piece also. I assume that his elders and betters at the NYTimes will take him aside and show him the error of his ways. Either that or he will be reassigned to the Camden beat.
Walter Sobchak (3f12ad) — 2/9/2011 @ 8:38 pmLiptak must have figured out that if corporations did not have First Amendment rights, the Pentagon Papers case was wrongly decided.
Michael Ejercito (64388b) — 2/10/2011 @ 10:48 am