NYT schooled on Citizens United, free speech by famous lawyer for the…NYT

posted at 9:41 am on November 28, 2012 by Mary Katharine Ham

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.

FLOYD ABRAMS
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.


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Free speech is a curse to the libs. They demand it for their Elephant Dung Madonnas but derided it when it makes them uncomfortable. This is, after all, the administration that attacked free speech as a way to cover up their killing of an American ambassador.

Flange on November 28, 2012 at 9:49 AM

You like Citizens United? Say hello to immigration Super PACs where the same people who benefit from cheap Mexican labor spend unlimited money (aka free speech) to legalize it.

Own it conservatives.

lester on November 28, 2012 at 9:49 AM

So, can we still say nasty stuff about Mohammed?

Akzed on November 28, 2012 at 9:51 AM

It is their function — the vital role that the press plays in American democracy — that sets them apart

Apart from what? Joesph Goebbels? Copier machine? Recording device? Loud speaker? Sure ain’t printing the truth.

Herb on November 28, 2012 at 9:53 AM

Own it conservatives. lester on November 28, 2012 at 9:49 AM

We don’t have any problem with free political speech, so your implication that we have totalitarian impulses like liberals do, that you can poke at to piss us off, lands on deaf ears. Moron.

Akzed on November 28, 2012 at 9:54 AM

It is their function — the vital role that the press plays in American democracy — that sets them apart.

That’s rich. No, really.

John the Libertarian on November 28, 2012 at 9:55 AM

You like Citizens United? Say hello to immigration Super PACs where the same people who benefit from cheap Mexican labor spend unlimited money (aka free speech) to legalize it.

Own it conservatives.

lester on November 28, 2012

Yes, I’m fine with this. I don’t like using the government to limit people’s speech based on whether or not I agree with them.

Mary Katharine Ham on November 28, 2012 at 9:56 AM

So the New York Times is being hypocritical – what else is new?

If you want to discuss a truly DISASTROUS Supreme Court ruling, look no further than Kelo v New London! Even so, G.W. Bush did not invite the Supremes to his State of the Union address to chastise and wave his finger at them.

Logic on November 28, 2012 at 9:59 AM

The NY Times can’t even get the facts of the case correct. They said:

[T]he ruling, which allowed unlimited independent campaign spending by corporations and unions,

That’s false. The case that removed the limits on campaign spending was Speechnow.org vs. FCC and not Citizens United. The Court ruled in Citizens United that the government couldn’t ban all expenditures but it didn’t address whether there could be limits placed.

Speechnow removed those limits.

In any case, media organizations like the Times have far more influence on elections than some group running an occasional commercial on TV. The Times just wants a monopoly on that influence.

SteveMG on November 28, 2012 at 10:01 AM

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.

What is the vital role the media plays in American democracy? There is no question, and they no longer deny, that they are cheerleaders for a certain ideology. Why should they receive any sort of constitutional protection? In fact, they should have to count their blatant support of democrats as an in kind contribution and report it to the FEC.

The only thing that Citizens United changed was that corporations are now on an even footing with the media and the unions. Of course the NYT would have a problem with that.

Night Owl on November 28, 2012 at 10:01 AM

the vital role that the press plays in American democracy

More like the vital role they play in controlling information to forward their agenda. The press stopped being a protector of democracy a long time ago. Nowadays the press is more about propaganda than accurate, fair and unbiased information.

HotAirian on November 28, 2012 at 10:01 AM

Eh, the NY Times is just trying to prop up its imaginary monopoly on political speech. That whole “going inevitably out of business thanks to the Internet” thing has them in a blind panic.

JeremiahJohnson on November 28, 2012 at 10:02 AM

Yes, I’m fine with this. I don’t like using the government to limit people’s speech based on whether or not I agree with them.

Mary Katharine Ham on November 28, 2012 at 9:56 AM

That’s crazy talk.
/s

DrAllecon on November 28, 2012 at 10:04 AM

Own it conservatives.

lester on November 28, 2012 at 9:49 AM

Proud to own that, fascist

iconoclast on November 28, 2012 at 10:05 AM

Own it conservatives.

Own it, celebrate it, and learn to use it to our advantage.

Vera71 on November 28, 2012 at 10:07 AM

You like Citizens United? Say hello to immigration Super PACs where the same people who benefit from cheap Mexican labor spend unlimited money (aka free speech) to legalize it.

Own it conservatives.

lester on November 28, 2012 at 9:49 AM

So, Republican based immigration reform is “people who benefit from cheap Mexican labor”, while democrat immigration reform is based only on humanitarian ideals? There is no truth to the idea that democrats want amnesty and immigration to bolster your voting base? Or to promote more government dependency? LOL! You are a hoot.

Night Owl on November 28, 2012 at 10:08 AM

You like Citizens United? Say hello to immigration Super PACs where the same people who benefit from cheap Mexican labor spend unlimited money (aka free speech) to legalize it.

Own it conservatives.

lester on November 28, 2012 at 9:49 AM

I’d have no problem with something that undid Citizens United, as long as it also prohibits unions and media from any politicking, campaigning or endorsing. That’s what people like you don’t seem to get. If a non-person entity is prohibited, than all non-person entities are prohibited.

Nutstuyu on November 28, 2012 at 10:10 AM

Own it conservatives.

lester on November 28, 2012 at 9:49 AM

Wait, are we even allowed to own it? Doesn’t that seem kind of capitalistic and free-market-ish?

Nutstuyu on November 28, 2012 at 10:11 AM

So, can we still say nasty stuff about Mohammed?

Akzed on November 28, 2012 at 9:51 AM

mohammed was a pervert. there, I said it.

deimos on November 28, 2012 at 10:12 AM

Why don’t we pass a law outlawing stupid posters like lester being able to comment on anything anywhere!

Zomcon JEM on November 28, 2012 at 10:12 AM

So Lester, you think groups that advocate for amnesty should be prevented from doing so?

Does that apply to the Democratic Party?

Or just corporations?

SteveMG on November 28, 2012 at 10:14 AM

So, can we still say nasty stuff about Mohammed?

Akzed on November 28, 2012 at 9:51 AM

Why would we need to say anything nasty about a lying, thieving, raping, pilliging, murdering pedophile like Mohammed?

/BUCK FARARCK and MUCK FOHAMMED/

Nutstuyu on November 28, 2012 at 10:14 AM

Heck, the NY Times advocates for amnesty.

Let’s use Lester’s standard and censor them.

But I guess Lester doesn’t mean THAT corporation. They’re a good corporation and should be allowed to speak. It’s the BAD corporations that need to be censored.

That’s not the way the First Amendment operates.

SteveMG on November 28, 2012 at 10:16 AM

The New York Times is now nothing more than a marxist propaganda organ. Pravda and the Weekly World News are more transparent and honest about who they are.

rbj on November 28, 2012 at 10:16 AM

Well, that didn’t pan out. MOM!! Are my Hot Pockets done yet?

lester on November 28, 2012

CurtZHP on November 28, 2012 at 10:21 AM

Excerpt from “American President”, the changes are mine.

For the record, yes, I am a card-carrying member of the ACLU TEA PARTY, but the more important question is “Why aren’t you, Bob?” Now this is an organization whose sole purpose is to defend the Bill of Rights Constitution of the United States, so it naturally begs the question, why would a senator, his party’s most powerful spokesman and a candidate for President, choose to reject upholding the constitution? Now if you can answer that question, folks, then you’re smarter than I am, because I didn’t understand it until a few hours ago.

America isn’t easy. America is advanced citizenship. You’ve gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say, “You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.” You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms.

Tenwheeler on November 28, 2012 at 10:22 AM

You like Citizens United? Say hello to immigration Super PACs where the same people who benefit from cheap Mexican labor spend unlimited money (aka free speech) to legalize it.

Own it conservatives.

lester on November 28, 2012 at 9:49 AM

Lester, cmservatives will always stand up for liberals’ free speech rights, even though we know you’d have the government censor us if you could get away with it. We have principles–you don’t, which is why you don’t understand this discussion.

juliesa on November 28, 2012 at 10:40 AM

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.”

Yes, imagine that. People have free speech rights under the First Amendment — even people who choose to organize themselves into corporations. (Remember when the left mercilessly mocked Mitt Romney for saying that corporations are people? Apparently, progressives believe that corporations are disembodied brains, floating around in the ether, constantly hatching evil plots to deprive lefties of their government-funded goodies.)

And hey, you know what else the First Amendment protects? The free exercise of religion. But some federal judges don’t seem to understand that. Last week, a district court judge in Oklahoma ruled that a Christian-owned company called Hobby Lobby does not have the right to refuse to provide its employees with “free” contraceptives and abortion pills, because corporations do not have the right to religious freedom under the First Amendment.

Apparently that judge has a different copy of the constitution than the rest of us. On his copy, the First Amendment says: Congress shall make no law abridging the free exercise of religion . . . except when the people seeking to freely exercise their religion have organized themselves into corporations, in which case Congress can make any law it damn well pleases.

AZCoyote on November 28, 2012 at 10:46 AM

Like every other demagoguery whipping boy the left so enthusiastically flogs bloody none of them are anything in this world to do with right or wrong or freedom, they’re all about liberal tyranny. Only.

Speakup on November 28, 2012 at 10:51 AM

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. – NYT

Boy. These are dumb people.
The point of the law was NOT to protect media’s free speech, but rather to PREVENT others from exercizing theirs. The media has no right to a monopoly on institutionalized free speech.
How can a law be written to “protect” a constitutional right ?
Better yet, Why should a law be witten to do it ?

These folks really do think they are smarter and better than us.

Jabberwock on November 28, 2012 at 10:54 AM

Floyd Abrams is a great First Amendment lawyer.

Phil Byler on November 28, 2012 at 10:57 AM

So the New York Times is being hypocritical – what else is new?

If you want to discuss a truly DISASTROUS Supreme Court ruling, look no further than Kelo v New London! Even so, G.W. Bush did not invite the Supremes to his State of the Union address to chastise and wave his finger at them.

Logic on November 28, 2012 at 9:59 AM

the only silver lining to Kelo is that many states moved to prevent it from
happening in that state …

conservative tarheel on November 28, 2012 at 11:01 AM

FREE FOR ME BUT NOT FOR THEE;
ALL ELSE WILL BE A CALAMITY!

- NEW YORK TIMES

Marcola on November 28, 2012 at 11:12 AM

THAT’S “ME” IN THE CORPORATE SENSE, OF COURSE!

- NEW YORK TIMES

Marcola on November 28, 2012 at 11:13 AM

You like Citizens United? Say hello to immigration Super PACs where the same people who benefit from cheap Mexican labor spend unlimited money (aka free speech) to legalize it.

Own it conservatives.

lester on November 28, 2012 at 9:49 AM

You make the ignorant mistake of conflating legal behavior with good behavior. This is the lesson of liberty which progessives cannot fathom. People are free to make bad choices in a free society, that liberty also gives us our greatest strength.

It is unconstitutional for Congress to make any law abridging free speech. Progressives will always say, “but some speech is bad, and should be suppressed”, and try to find ways to spin a law to that end. Anybody at all may take actions to raise money for the purpose of getting their voice heard. That includes PACs fighting for amnesty for illegals. I will gladly own that those PACs have every right to do so. But if laws were viewed properly in this nation they would be wasting their breath, for illegals would always remain illegals. It isn’t their freedom of speech which bothers me. It is the size of the audience that doesn’t know right from wrong, truth from fiction which bothers me. That cannot be legislated away, only educated.

Try again.

Freelancer on November 28, 2012 at 11:14 AM

….now if we could just get NBC News to look beyond the Obama distributed talking points.

Tater Salad on November 28, 2012 at 11:16 AM

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?”

Well, yeah, if they’re the wrong candidate.

Kenosha Kid on November 28, 2012 at 11:26 AM

So the New York Times wants to muzzle union endorsements and ad buys?

I think what the NYT is afraid of here is that for the first time in a long time, the playing field of speech is leveled and they’re now just one voice of many.

For that, they call it ‘disastrous.’

LOL

Good Lt on November 28, 2012 at 11:33 AM

You like Citizens United? Say hello to immigration Super PACs where the same people who benefit from cheap Mexican labor spend unlimited money (aka free speech) to legalize it.

Own it conservatives.

lester on November 28, 2012 at 9:49 AM

I don’t see the problem here.

I’m not in favor of limiting political speech under any circumstances. SCOTUS agrees with us.

You are in favor of limiting free political speech – a very un-American position. And if you try to, you are in violation of the First Amendment.

We’re the ones defending free political speech. You’re the ones who want to violate and control it.

Own it, regressives.

Good Lt on November 28, 2012 at 11:37 AM

Own it conservatives.

lester

Oh noes, Lester the molester has presented us with quite the moral dilemmaz. Whatever will we doos now?

xblade on November 28, 2012 at 11:43 AM

You like Citizens United? Say hello to immigration Super PACs where the same people who benefit from cheap Mexican labor spend unlimited money (aka free speech) to legalize it.

Own it conservatives.

lester on November 28, 2012 at 9:49 AM

I’d have no problem with something that undid Citizens United, as long as it also prohibits unions and media from any politicking, campaigning or endorsing. That’s what people like you don’t seem to get. If a non-person entity is prohibited, than [sic] all non-person entities are prohibited.

Nutstuyu on November 28, 2012 at 10:10 AM

Huh?

You would have no problem with what?

So, you would be comfortable if each and every “non-person entity” . . . unions, media, corporate entities, et al . . . were prohibited from “any politicking, campaigning or endorsing” i.e., from open participation in the political process?

You want to explain how that could possibly work? For starters, who would enforce it? And, who would appoint (or elect) those enforcers? Would offenses under your prohibitory scheme — prohibited utterances by non-person entities — be civil or criminal in nature?

And, who would bear the onus probandi of somehow separating the wheat from the chafe in any given case — such as determining whether a person or a non-person wrote or uttered the offending utterances?

And, finally, what might we call your political ideology?

Trochilus on November 28, 2012 at 11:47 AM

The New York Pravda argues only it and those it approves of get free speech. That is the crux of its argument.

pat on November 28, 2012 at 12:19 PM

NYT = Agenda

EdmundBurke247 on November 28, 2012 at 12:24 PM

So, can we still say nasty stuff about Mohammed?

Akzed on November 28, 2012 at 9:51 AM

Not if you put it into a Youtube video.

The future must not belong to those who slander the prophet of Islam.

/liberal thinking

tom on November 28, 2012 at 12:29 PM

Citizens United decision in the simplest form: those who are renting the press have the same rights to express their political opinions as those who own the press.

agmartin on November 28, 2012 at 12:51 PM

The reason the Left is still going nuts over Citizens United is that the Obama thugocracy was planning to use the FCC to declare that Fox News is a corporation and not a news organization, and thus not entitled to First Amendment protection and prohibited from endorsing political candidates. This is how they planned to shut down Fox, and then Rush Limbaugh.

I will guarantee that the very first thing that will happen if liberals get control of the Supreme Court is a test case that will overturn Citizens United. It will be fast-tracked through California and the Ninth Circuit. They need this to shut down conservative media.

rockmom on November 28, 2012 at 1:22 PM

Citizens United shut down McCain Feingold. What are the odds of another bipartisan campaign funding bill being passed by both houses? More likely is an executive order, and one that limits free speech. Even a liberal court would strike that down.

Media companieswill try to hang on to their fourth estate priveliges for as long as possible. When the distinction between journalist and citizen journalist/blogger no longer exists, then the NYT and Murdoch’s empire will become bankrupt shells and obvious corporate shills.

RINOs are people too on November 28, 2012 at 1:51 PM

The NYT’s, like Harry Reid, only likes laws that benefit it. Even if that law has to be bent in order to fit.

GarandFan on November 28, 2012 at 1:55 PM

lester on November 28, 2012 at 9:49 AM

So you have a problem with illegal aliens?

Isn’t that rather racist of you, lefty?

Solaratov on November 28, 2012 at 1:57 PM

You like Citizens United? Say hello to immigration Super PACs where the same people who benefit from cheap Mexican labor spend unlimited money (aka free speech) to legalize it.

Own it conservatives.

lester on November 28, 2012

Yes, I’m fine with this. I don’t like using the government to limit people’s speech based on whether or not I agree with them.

Mary Katharine Ham on November 28, 2012 at 9:56 AM

Yep. It’s not like we’re the ones running away from the debate. We also don’t use the race card to try to SQUIRREL! our way out of one either.

It’s too bad that lester is so dull-witted that he doesn’t realize that he is even able to have this discussion. I doubt any of us would get the same courtesy (with the blogger no less!) on any of the liberal sites.

Thanks, once again, lester for pointing out how you do indeed have “freedom of speech” at a conservative site.

You were saying?

kim roy on November 28, 2012 at 2:24 PM

There is an under-the-radar movement out there at movetoamend.org that got initiatives on many local ballots in this past election (CA, CO, IL, MA, MT, OH, OR, WI) and it’s amazing how overwhelmingly these initiatives were approved by populations who I think have no clue what they were approving. This organization is working to get an amendment out of Congress to overturn Citizens United v FEC. Here is actual language that was on many ballot initiatives:

“Should the United States Constitution be amended to clearly state that only individual persons, and not corporations, associations, or any other organizational entities, are entitled to the rights enumerated in the Constitution?”

“Should the United States Constitution be amended to limit the use of corporate, special interest, and private money in any political activity, including influencing the election of any candidate for public office?”

stukinIL4now on November 28, 2012 at 4:30 PM

The Old Gray Lady: Free speech for me but not for thee.

MJBrutus on November 28, 2012 at 5:40 PM