Free speech for me, but not for thee

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The five Supreme Court Justices who formed the majority in Citizens United v. FEC—in which the Court held that corporations can spend unlimited amounts of money to call for the election or defeat of candidates—can be forgiven if they view certain corporations that benefited from their ruling as a bunch of ingrates. Since Citizens United was decided in January, a large group of media corporations, including the ones that own the New York Times and Washington Post, is still spending millions of dollars criticizing the decision as disastrous for democracy. In doing so, these corporations have ignored one basic fact: If Citizens United had sanctioned the suppression of speech merely because it is uttered by a corporation, then it would have opened the door for Congress to censor media corporations’ speech.

If, like the Times and Post, one buys into the notion that Congress can ban the speech of non-media corporations because they can have a powerful influence on the outcome of elections, then why not place the same restrictions on media corporations? After all, they certainly have more influence on political discourse in this country than other corporations. Indeed, unlike Exxon or the incorporated mom-and-pop shop down the street, they are actually in the business of producing influential speech. Many of these corporations’ media outlets command national audiences, and they can drive national debates by focusing the public’s attention on certain issues.

It therefore makes no sense to argue that there is less reason to censor media corporations than other corporations. Certainly—in the wake of scandals ranging from the fake stories of Stephen Glass and Jayson Blair to the Washington Post’s recent attempt to sell exclusive access to administration officials—it is hard to make the case that the media deserves special treatment because its members are somehow more responsible than other corporate speakers. And, in any event, the Supreme Court long ago rejected the notion that the media enjoy greater First Amendment protections than other speakers from campaign finance laws like those at issue in Citizens United. Although Congress has thus far exempted media corporations from those laws, that exemption is discretionary, not mandatory.

Thus, the media’s right to free speech rises and falls with everyone else’s. For that reason, media corporations are fortunate that the Supreme Court closed the door to censorship by taking the words of the First Amendment—“Congress shall make no law . . . abridging the freedom of speech”—seriously. Those words crystallize the Founders’ belief that the ability of a group to speak should not turn on whether it is favored or disfavored by political leaders; as the Court reaffirmed, the only way to prevent this from happening is to protect all speakers, even if they assume corporate form.

However, prominent media outlets like the Times and Post don’t appear happy that other corporations can now speak robustly as they can. As Congress considers legislation to “fix” Citizens United, editorial pages are full of calls for Congress to place restraints on the speech of non-media corporations—including requiring that they make more detailed disclosures about the funding of their political speech and “protect” their shareholders by obtaining approval from them before spending money to endorse or oppose candidates.

But if Congress enacts these proposals, there’s no reason it could not later extend them to media corporations. For example, proponents of disclosure laws argue that these laws are needed to alert voters that a speaker’s speech may be colored by a conflict of interest—a conflict that can’t be known unless the government requires the speaker to identify his name and political contributions. Congress could use this rationale to enact a disclosure regime that requires news outlets to publish the names and political contributions of everyone who wrote, edited, and was interviewed for a story about an election. (So much for anonymous sourcing.) And Congress could use shareholder “protection” as a justification to prevent media outlets from spending money to influence elections unless most of their shareholders approved. (Want to stop a paper from endorsing candidates you don’t like? Buy up its corporate parents’ stock.)

These kinds of laws, by making it harder for the media to speak about politics, would necessarily diminish the amount of media speech about it. Thus, it’s a safe bet that outlets like the Times and Post will oppose them. However, because they have abandoned the only principled position that could protect them—unbridled free speech for all corporations—there will be little they can do to stand in Congress’ way.

Curiously, the Times and Post express no concern that such a scenario may one day unfold. Do they believe that Congress—chock full of individuals who constantly complain about being treated unfairly by the media—will never dare to revoke the media’s exemption from campaign finance laws? Do they have blind faith that no president will ever act on the belief, expressed by the current administration in regard to Fox News, that at least some media outlets aren’t “legitimate” news organizations?

If so, naiveté, rather than patriotism, has become the last refuge of scoundrels—particularly those who, in the hopes of maintaining their status as favored speakers, are prepared to sacrifice the First Amendment rights of everyone else.

Bert Gall is a senior attorney at the Institute for Justice, which challenges campaign finance laws nationwide and filed a brief in support of Citizens United in the recent Supreme Court case. Sarah Eisenhandler is a Constitutional Law Fellow at the Institute.