Corporation Uses 1st Amendment to Trash 1st Amendment

Presented here with no other commentary than a hearty, “Amen!”  James Taranto:

“The majority is deeply wrong on the law,” according to a critic of yesterday’s U.S. Supreme Court ruling in Citizens United v. FEC . “Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money.”

Whose opinion is this? We don’t know exactly, because it is not attributed to any individual. It is an unsigned editorial in the New York Times. That is to say, it reflects the collective opinion of the Times editorial board, a division of the New York Times Co., a corporation that exists to make money.

It’s lucky for the New York Times Co. that the Supreme Court upheld its First Amendment rights. Otherwise, it could not have exercised its First Amendment right to denounce the court for upholding its First Amendment rights. Right?

Not quite. As Justice Anthony Kennedy noted in his opinion, the McCain-Feingold “campaign finance” law–which until yesterday’s ruling made it a felony for corporations to engage in certain political speech–exempted “media companies” like the New York Times Co. (and News Corp., publisher of The Wall Street Journal and this Web site) from this restriction.

McCain-Feingold, in other words, granted a small group of companies, including the New York Times Co., the privilege to speak freely about politics, while denying it to all other corporations–not only “companies . . . that exist to make money,” but also taxable nonprofits that exist to represent a point of view, including the advocacy arms of the Sierra Club, the American Civil Liberties Union and the National Rifle Association.

The editorial published by the New York Times Co. includes no mention of the special privilege the New York Times Co. enjoyed under McCain-Feingold–a privilege that creates at least the appearance of a journalistic conflict of interest. Is not the failure to disclose the New York Times Co.’s interest in McCain-Feingold a serious violation of journalistic ethics?

The Times’s opinion is wrongheaded as well. Under the paper’s cramped view of the First Amendment, the privilege the New York Times Co. enjoyed under McCain-Feingold was just that: a privilege, not a right. The First Amendment does not say “Congress shall make no law abridging the freedom of speech of media corporations.” If the Constitution doesn’t protect corporations, it doesn’t protect the New York Times Co. And if Congress had the power to grant an exemption to media companies, it also had the power to take it away.

As Justice Clarence Thomas noted in McConnell v. FEC (2003), such reasoning would permit “outright regulation of the press.” Some on the far left, complaining about “corporate domination” of the media, would like to see just that.

In past generations, the New York Times Co. had a proud tradition as a defender of free expression. It was the prevailing litigant in two landmark Supreme Court cases expanding and vindicating First Amendment rights, New York Times Co. v. Sullivan (1964) and New York Times Co. v. U.S. (1971). The former case, by the way, involved a political advertisement.

What a shame it is to see a once-great media corporation become a fair-weather friend of free expression.

Filed under: Doug • Government • Media

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