Monday, February 7, 2011

Corporate free speech and the media

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? ...

Consider this telling exchange between Justice Samuel A. Alito Jr. and a lawyer for the Obama administration at the first of two arguments in Citizens United. The lawyer, Malcolm L. Stewart, said Congress had the power to regulate corporate speech about political candidates under the First Amendment.

“Most publishers are corporations,” Justice Alito said. “And a publisher that is a corporation could be prohibited from selling a book?” ...

In the end, though, Mr. Stewart gave a candid answer.

“We could prohibit the publication of the book,” he said.
--Adam Liptak, NYT, on the difficulties raised by regulating corporate speech

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