First Amendment lawyer Floyd Abrams represented the New York Times, ahem, Corporation, in the Pentagon Papers case and went on to represent Mitch McConnell on the side of Citizens United in that case. When the NYT editorial board bastardized the legal reasoning in the former iconic free speech case to justify bashing the latter, Abrams wrote to tell them so.
First, the editorial board came down on Supreme Court Justice Samuel Alito this week for defending the Citizens United decision on free speech grounds while addressing a meeting of the Federalist Society:
Last week, Justice Samuel Alito Jr. speciously defended the Supreme Court’s disastrous ruling in the 2010 Citizens United case by arguing that the ruling, which allowed unlimited independent campaign spending by corporations and unions, was not really groundbreaking at all. In fact, he said, 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 in New York Times v. Sullivan.
“The question is whether speech that goes to the very heart of government should be limited to certain preferred corporations; namely, media corporations,” he said in a speech to the Federalist Society, a conservative group. “Surely the idea that the First Amendment protects only certain privileged voices should be disturbing to anybody who believes in free speech.”
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. In Citizens United, by a 5-to-4 vote, the court ruled that the 2002 Bipartisan Campaign Reform Act, in limiting the amount that organizations could spend, severely restricted First Amendment rights. The law’s purpose and effect, according to the court, was to keep unions and most corporations from conveying facts and opinions to the public, though it exempted media corporations.
But the majority got that backward. 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.
In his letter to the editor, Abrams says it is the NYT that is confused:
“Justice Alito, Citizens United and the Press” (editorial, Nov. 20), criticizing Justice Samuel A. Alito Jr.’s defense of the Supreme Court’s Citizens United ruling, misapprehends the nature of The Times’s own great victories in cases such as the Pentagon Papers and New York Times v. Sullivan.
You state correctly that in neither case did the court make anything of the fact that The Times is a corporation. But that is the point. In those cases, as in Citizens United, political speech was held protected regardless of who was speaking or what its corporate status was. As Justice Anthony M. Kennedy explained in Citizens United, “the First Amendment protects speech and speaker, and the ideas that flow from each.”
The law at issue in Citizens United permitted The Times to endorse candidates while making it a felony for nonmedia corporations to do so. It made it a crime for a union to distribute your endorsement of President Obama for re-election to its members. It should come as no surprise that the same First Amendment that was held to shield the press in landmark cases of the past now shields such speech as well.
New York, Nov. 20, 2012
James Taranto, in the process of flaying the NYT for celebrating its loophole for free speech, offers more thoughts from a 2010 interview with Abrams:
“Here is a very committed, very conservative entity that does a film attacking then-Sen. Hillary Clinton when she seemed likely to be nominated for president by the Democratic Party,” Mr. Abrams says. “I ask myself: Well, isn’t it obvious that that sort of speech must be protected by the First Amendment? And then I hear in response to that, ‘Well, they could have used a PAC. Or they could have put the film out farther away from the election. Or they could have refrained from taking any money from any corporate grantor.’
“And my reaction is sort of a John McEnroe: You cannot be serious! We’re talking about the First Amendment here, and we’re being told that an extremely vituperative expression of disdain for a candidate for president is criminal in America?”
The New York Times neither offers any evidence for why Citizens United was “disastrous”— reporting by the Times suggests it wasn’t— nor justifies its creepy implication that the government should be in the business of distributing free speech passes for some entities but not others based on their “function.” I’m glad Abrams took the time to instruct his former clients.