Raistlin

I made this a blog post because it's kinda long and I didn't think a lot of people in EoEO would care. I just wanted to rant about an issue that often bugs me.

It’s easy to get caught up in sports team politics, where you root for your side because of certain labels, not for any ideological reasons. This is apparent with the lack of liberal protest for many of Obama’s policies, despite him being by many measures even worse than Bush on civil liberties and other “liberal” issues. But most mind boggling to me, however, is the self-labeled liberals who decry Citizen’s United.

Brief overview: Citizen’s United was a 2010 Supreme Court decision that struck down a federal law that prevented corporations from spending money on private political activism (also called “independent expenditures,” which just means political spending not directly connected with any candidate’s campaign or campaign funds). In that case, the federal government sought to prevent a movie that was critical of then-Presidential candidate Hillary Clinton, because that movie was funded largely from corporate funds. The Court ruled that that was unconstitutional, because such a movie was pure political speech that warranted the highest First Amendment protection.

This decision almost immediately drew widespread criticism from liberal corners, many of which, like the New York Times editorial board, apparently never read it.

Last month, Supreme Court Justice Alito, who I have absolutely no respect for at all and consider far and away the worst person on the bench, defended the 2010 decision in Citizen’s United. Alito argued that eliminating a corporation’s political advocacy is constitutionally prohibited in part because of the difficulty of drawing a distinction with media corporations and protecting their speech rights. The New York Times was not happy with that.

Originally Posted by NYT

But Justice Alito’s argument wrongly confuses the matter. It is not the corporate structure of media companies that makes them deserving of constitutional protection. It is their function — the vital role that the press plays in American democracy — that sets them apart.

[…]

The Citizens United majority never explained why any corporation that does not have a press function warrants the same free speech rights as a person. Neither did Justice Alito. Meanwhile, the false equivalence of money and speech put forward by Citizens United and the money it unleashed is wreaking havoc in our politics.

There are so many things wrong with this. Let’s start with the oblique criticism of the “false equivalence of money and speech.” Of course spending money constitutes speech. The Supreme Court has long held, correctly, that “speech” for First Amendment purposes constitutes pretty much any expression or activity that is meant to express a viewpoint. Protesting is speech, flag burning is speech, and giving money to support a political viewpoint is speech. And even if it wasn’t speech, it is equally unconstitutional to put financial barriers up to inhibit speech. For example, a law that requires protestors to pay the city for the resulting police overtime required for security is unconstitutional, because it is a financial burden on speech. Prohibiting an organization from using its funds on speech is a burden on speech, even if, for the sake of argument, the spending itself is not speech (which it clearly is).

Secondly, and this is where the NYT really should read the actual opinion, the Citizen’s United majority in fact did address why all corporations have the same speech rights as media corporations. Quite eloquently and accurately (citations left in because I’m too lazy to remove them all):

Originally Posted by Citizen’s United majority

The media exemption discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” Id. , at 691 ( Scalia, J. , dissenting) (citing Bellotti, 435 U. S. , at 782); see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. , 472 U. S. 749, 784 (1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens , JJ., dissenting); id. , at 773 (White, J., concurring in judgment). With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.

The law’s exception for media corporations is, on its own terms, all but an admission of the invalidity of the antidistortion rationale. And the exemption results in a further, separate reason for finding this law invalid: Again by its own terms, the law exempts some corporations but covers others, even though both have the need or the motive to communicate their views. The exemption applies to media corporations owned or controlled by corporations that have diverse and substantial investments and participate in endeavors other than news. So even assuming the most doubtful proposition that a news organization has a right to speak when others do not, the exemption would allow a conglomerate that owns both a media business and an unrelated business to influence or control the media in order to advance its overall business interest. At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue. This differential treatment cannot be squared with the First Amendment.

And that does not even go into the difficulties of determining what is “media” and what isn’t. Obviously a national newspaper like the NYT or TV news would qualify (though maybe it shouldn’t…). But what about a regularly-issued newsletter? What about a website with relevant news updates? It’s partially for this reason that courts simply given every speaker the most protection allowed for the type of speech at issue.

Quite simply, the First Amendment has never been interpreted to give the press any rights over any other speaker. I have exactly the same free speech rights to make this blog post that the NYT has to publish its insipid editorial. The NYT’s reliance on the “press function” as a justification for such a distinction shows a complete ignorance of not only First Amendment law, but the Citizen’s United decision itself. It is impossible to reconcile 200 years of First Amendment jurisprudence if you create a non-media-corporation exception to speech rights, and the liberal support seems to come from the widespread (and justifiable, I might add) negative perception of corporations as a whole. But the First Amendment does not allow us to pick-and-choose a disfavored class of speakers to which we deny free speech rights.

I don’t have the energy for another full defense of Citizen’s United as a whole, so I'll leave it at those points. But I will say that the First Amendment principles here are so strikingly obvious, that the Citizen’s United party was unqualifiedly supported by none other than that conservative, corporatist shill… the ACLU.

The Citizen’s United decision was a major First Amendment victory that should be applauded by social liberals and civil libertarians. The fact that it isn’t just goes to show that sports team politics (in this case, us vs. corporations) rules our political debate.