Few subjects more unhinge the editorialists at the New York Times than the Supreme Court’s 2010 Citizens United decision, which upheld the right of corporations and unions to engage in unlimited independent campaign spending. No defense of that “disastrous” decision, it seems, is too passing to not warrant the Times’ unbridled condemnation.
In the instant case it was Justice Samuel Alito’s speech last week at the 30th annual Federalist Society convention that gave offense. Only one among several decisions he discussed that evening, Citizens United, he said, “was not really groundbreaking at all.”
In fact, all it did was reaffirm that corporations have free speech rights and that, without such rights, newspapers would have lost the major press freedom rulings that allowed the publication of the Pentagon Papers and made it easier for newspapers to defend themselves against libel suits [as] in New York Times v. Sullivan.
But the good justice then made a point that appears to have hit a nerve at the Times.
The question is whether speech that goes to the very heart of government should be limited to certain preferred corporations; namely, media corporations. Surely the idea that the First Amendment protects only certain privileged voices should be disturbing to anybody who believes in free speech.
Charging that Justice Alito “wrongly confuses the matter” – which is worse, one assumes, than rightly confusing it – the Times avers that it’s “not the corporate structure of media companies that makes them deserving of constitutional protection [but] their function – the vital role that the press plays in American democracy – that sets them apart.” The Court got it backward, the Times contends, when it said that the purpose and effect of the McCain‐Feingold Act “was to keep unions and most corporations from conveying facts and opinions to the public, though it exempted media corporations.” Instead, “the point of the law was to protect the news media’s freedom of speech and not the legal form that they happened to be organized under.”
Really? Parse that last sentence: Assume, contrary to fact, that the point of McCain‐Feingold “was to protect the news media’s freedom of speech” – so far so good, but – “and not the legal form that they happened to be organized under.” What? One’s head spins. A corporation’s legal form is “protected” (or recognized) under corporate law, not campaign finance law. The point of the law here was precisely as the Court held, to keep non‐media corporations from speaking – indeed, even from publishing a book than ran afoul of its strictures, as the government held at oral argument.
And why should non‐media corporations have lesser speech rights than media corporations? Because, as Justice John Paul Stevens said in dissent, and the Times quotes, they “are not actually members of society” – unlike the Times, presumably. Unhinged indeed.