Wendy Kaminer explains why over at the Atlantic.
New York Times columnist Adam Liptak has penned a thoughtful column on the meaning of the First Amendment’s protection for freedom of “the press” and its application to corporations. Some critics of the Supreme Court’s ruling in Citizens United argue that the institutional press—unlike other corporations—enjoys special protection under the First Amendment, but as Liptak correctly notes
[T]he argument is weak. There is a 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.
There is a practical problem, too, especially in the Internet era. Who, after all, is “the press”? Anyone with a Twitter account?
Read the whole thing.
Hat tip to Chaim Gordon.
The sports world is abuzz with the news that Daniel Snyder has filed a defamation lawsuit against the Washington City Paper because he is upset that it has been critical of his tenure as owner of the Washington Redskins.
In particular, he’s mad about a recent article in the paper that, in the words of Washington Post columnist Gene Weingarten, described him as
an avaricious, imperious, conscienceless plutocrat with callous contempt for the fans; a man whose Napoleonic, pouter-pigeon swagger conceals a doofus-like understanding of the game and whose pernicious, autocratic meddling has consigned the team to perpetual mediocrity and its players and coaches to a perennial state of harrowing anxiety, all of this starting virtually from the moment [he] arrived and continuing to this very minute.
The overwhelming response to the lawsuit seems to be that Mr. Snyder should be flagged for acting like a thin-skinned bully.
But I disagree. All the naysayers are missing the point. They should instead see the lawsuit for what it really is: a valiant stand against the evils of corporate speech. After all, the City Paper is owned and published by a corporation, Creative Loafing, Inc. And that corporation is owned by a private equity firm that no doubt has investments in other, perhaps even more nefarious corporations.
By filing his lawsuit, Mr. Snyder is standing up for the little guy against the power of corporations, which—as we have been constantly reminded by critics of the Supreme Court’s decision in Citizens United v. FEC—shouldn’t have any First Amendment rights because they aren’t real people.
Creative Loafing has clearly used financial resources that normal folks don’t have access to in order to write, print, and distribute a story that has unduly influenced the public into believing Mr. Snyder is a humorless dweeb. The only reason his message—that he’s a competent NFL owner and not a total jerk—hasn’t gotten through to the public is because it’s been drowned out, not only by Creative Loafing, but also by bigger corporate-owned media outlets like the Washington Post (see above) and ESPN.
We can only hope that he’ll attempt to shut up these and other corporations soon, including those that try to influence Americans about things that are almost as important as football (e.g., elections). Because unless we are going to surrender control of public debate to faceless, soulless corporations, we’ll need heroes like Mr. Snyder to protect us from them. (I mean, he’s got to win at something, right?)
[Update: Yes, this post is intended to be satirical. (See my comment below.)]
Image source: Ed Yourdon
On January 28, a federal judge in Maryland handed down a ruling that neatly illustrates how far the U.S. Supreme Court’s precedent has drifted from the idea that political speech is at the core of what the First Amendment was intended to protect.
The case, O’Brien v. City of Baltimore, involved a challenge by a Catholic-based crisis-pregnancy center to a Baltimore ordinance that would have required them to put up a sign in their lobby stating that the center “does not provide or make referral for abortion or birth-control services.” Because the First Amendment protects not just the right to speak but also the right to choose what one will say, the center objected to the ordinance on the grounds that it unconstitutionally compelled them to speak.
The district court in O’Brien correctly concluded that the required disclaimer was compelled speech and that the ordinance must be subject to the highest level of judicial scrutiny, known as “strict scrutiny.” The court went on to hold that the law failed strict scrutiny because the government’s alleged interest in combating “deceptive advertising” by crisis-pregnancy centers could have been achieved by simply modifying the city’s existing anti-fraud statute, without compelling the centers to convey a message they would prefer not to convey.
So far so good—except for the fact that the Supreme Court has upheld disclaimers in the campaign finance context for ads that support or oppose candidates. The district court in O’Brien recognized this and was forced to explicitly distinguish disclaimers in the campaign context from those at issue in the case. Here’s what the court said:
Strict scrutiny review is a standard traditionally used when examining regulations of fully protected speech rather than the ‘exacting scrutiny’ standard described in Citizens United v. Fed Election Comm’n.,__ U.S. __, 130 S. Ct. 876 (2010) (addressing a First Amendment Challenge to political campaign laws).
In short, speech about a crisis-pregnancy center is “fully protected” under the First Amendment, but speech about candidates is not. The Framers gave us the First Amendment specifically to allow citizens to, among other things, talk about and criticize their government. Yet three decades of campaign finance decisions have forced a district court to have to say, in effect, “Unlike political speech, the speech at issue here is entitled to significant First Amendment protection.” Nonetheless, decisions like the one in O’Brien are important—by exposing the contradictions between our First Amendment rhetoric and our First Amendment as enforced by the courts, it lays bare how far we have drifted from first principles. And that is the first step to restoring those principles.
Hat tip to The Volokh Conspiracy.
The full text of the O'Brien ruling is available below the break.
Over at ACSblog, Ohio State law professor Dan Tokaji argues that it’s time for campaign finance “reformers” to proclaim proudly that “equality,” rather than “corruption,” is the reason they favor restricting political speech:
Acceptance of equality as a rationale won't make hard questions surrounding campaign finance regulation disappear. It will, however, ensure that we are asking the right question: Whether particular regulations will really promote political equality, without unduly infringing other values like fair competition. The time has come for U.S. reformers to embrace equality openly, rather than continuing to disguise it in the garb of anticorruption. This approach will not find favor before the current U.S. Supreme Court. In the long run, however, it will lead us toward a healthier democracy that more closely approaches the ideal of equality for all citizens, regardless of wealth.
We agree that “reformers” should be more candid about how the equality rationale is at the heart of their efforts to limit speech. But Professor Tokaji fails to realize that there’s a very good public-relations reason for “reformers” to keep that rationale under wraps: It’s pretty obvious that it will inevitably lead to censorship.
For example, under the equality rationale, there’s no reason the government couldn’t silence media outlets and outspoken critics of the government’s policies on the ground that those speakers aren’t promoting political equality—defined by the government as the implementation of its policies. If the public rejects those policies, then speech must be limited further to avoid what the government deems to be inegalitarian outcomes.
These logical implications of the equality rationale do not, to say the least, enhance the marketability of campaign finance “reform.”
Professor Tokaji does not grapple with these implications. Perhaps he hopes that wise and benevolent leaders will be fair in their policing of political speech, including speech they don’t like, but he should know better. Perhaps he hopes that the only leaders who will exercise this power will be those who promote his notion of “equality,” but, again, he should know better.
Thankfully, the Founding Fathers did know better. That’s why the First Amendment commands that “Congress shall make no law . . . abridging the freedom of speech.” Whether regulations comply with it—rather than whether they promote an amorphous notion of political equality—is the right question to ask. Until he does so, Professor Tokaji (and other proponents of the equality rationale) will keep coming up with the wrong answers about the government’s power to limit political speech.
Republicans in Congress have responded to the apparent desire among voters for smaller government with a proposal to eliminate the public financing system for presidential elections. Our friends over at the Center for Competitive Politics present some very compelling reasons for ending the program. As they point out, doing so would save a minimum of $617 million over ten years on a program that, after President Obama declined funds in 2008, is unlikely to draw any interest among serious candidates in the future without a substantial increase in the program. Brad Smith estimates that the fund would need at least $750 million to entice candidates to participate, which is more than the budgets of the Corporation for Public Broadcasting, the Consumer Products Safety Commission, the U.S. Commission on Civil Rights, the Holocaust Museum, and the FEC combined. Of course, unserious candidates seem to love public financing. As CCP points out, such luminaries as Alan Cranston of Keating Five fame, ex-Gov. Milton Schapp of Pennsylvania, who was later convicted of fraud, and perenial political gadfly Lyndon LaRouche have received financing under the program.
Another very good reason to eliminate the program is that the Constitution nowhere authorizes Congress to give taxpayer dollars to presidential candidates. Admittedly, we are in the minority in making this claim. In 1937, the Supreme Court regrettably upheld Congress’s power to spend money on anything deemed to serve the “general welfare,” and it later applied that reasoning specifically to the presidential public financing program in Buckley v. Valeo in 1976. But it’s never too late to get things right, and fortunately, the Constitution is on our side. (Toward that end, yesterday IJ launched the Center for Judicial Engagement, which is dedicated to demonstrating that the courts ought to take the Constitution, and, in particular, the limits on the size and scope of government, seriously. You can read more about it here.)
Finally, public financing of campaigns inevitably leads to restrictions or burdens on freedom of speech. For example, Arizona has set up a system that effectively punishes privately funded candidates and independent groups for spending more on their campaigns than their publicly funded opponents. The system is designed to force all candidates into the public system, where their spending is “leveled” and their voices equalized. The government has no place regulating speech in this way. IJ, along with the Goldwater Institute is challenging that system before the U.S. Supreme Court.
As Brad Smith says, “Congress should return to First Amendment first principles and create a doctrine of separation of campaign and state.” Politicians have been talking the limited government talk for months now. It’s time for them to walk the walk.
Today, Citizens United v. FEC turns one year old. That’s cause for celebration.
As readers of this blog know, in Citizens United the Supreme Court vindicated free-speech rights by holding that the First Amendment prevents the government from banning corporations from spending their money to express their views about candidates for office. The Court’s decision was an emphatic reminder that, under the First Amendment, the government may not censor political speech, no matter who is doing the speaking: “When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful.”
There will be time enough to document, rebut—and yes, laugh at—the continuing hysterical attacks on Citizens United by campaign finance “reformers.” But for now, I hope you’ll join Congress Shall Make No Law in celebrating Citizen United’s first birthday by changing your Facebook status to “Happy Birthday, Citizens United v. FEC.” And when you’re at happy hour this evening, please raise a glass to that decision’s robust defense of free speech.
Image source: Zellaby