The New York Times and The Boston Globe, which are owned by the New York Times Co. — a publicly-traded corporation with about $3 billion in annual revenue, both published editorials today arguing that the Supreme Court should limit the rights of corporations in deciding Citizens United v. FEC.
I’ll briefly note the hypocrisy of the New York Times Co. papers: The New York Times vigorously defended its First Amendment corporate rights in the landmark New York Times v. Sullivan Supreme Court case — which upheld a press freedom relating to defamation or libel of public figures. The corporate-owned paper, not just its individual editors or reporters, enjoy this First Amendment freedom.
Setting that aside, let’s look at the substance of the arguments in the editorials:
The Boston Globe’s editorial warns against striking down Austin v. Michigan Chamber of Commerce, which allowed the government to ban the independent speech of corporations. “Striking down that precedent would be a mistake. Corporations, which are authorized by the government, can’t vote or serve on juries…”
But wait, can The Boston Globe vote? Can The Boston Globe serve on juries? Certainly not. Then why does it enjoy First Amendment rights? According to the Globe, “the distinction between corporate speech and individual speech is clear enough.” So, if the government so desired, it could require the Globe‘s editorial board to only editorialize using their individual resources. After all, if there’s something sinister about combining resources using the corporate form to speak out on elections, the Globe needs to be stopped from making endorsements or opining on political issues immediately.
After all, the rationate in Austin (which the government since abandoned), is that corporations could use their “immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” If the Globe ever editorializes in favor of an opinion or a candidate that doesn’t enjoy the support of, say, 51 percent of the public at any time, it’s distorting opinion. How terrible! This free speech corporate distortion of our political process must be stopped!
You know, The New York Times has way too much influence in New York and nationally. The voice of the average New Yorker is drowed out by the corporate influence of The New York Times Co. Who can hear the corner street preacher’s sermons on Mayor Mike Bloomberg’s re-election when the Times is cranking out editorials? Something must be done to remedy this imbalance! Now! Don’t get rolled by the corporate influence of the New York Times Co.!
The Times‘ editorial concedes that courts treat corporations as persons for some reasons, including “limited rights to free speech.” It notes that corporations can’t vote or bear arms (neither can the NYT, thankfully…) and that corporations have “special legal status.”
Of course, the media exemption — one might call it a “special legal status” — in McCain-Feingold makes this NYT Co. regulation functionally impossible, because Congress decided to allow the institutional media to keep its First Amendment rights in politics (how kind of them). This construction, though, allows the government to decide who belongs to the press, thus bestowing them First Amendment rights.
Is Michael Moore a muckracking documentary filmmaker or a political provocateur using corporate or union influence improperly? Let’s let the FEC spend a couple years probing around his finances to find out. If the AFL-CIO and MSNBC produce two documentaries on why Republican presidential candidate X is bad for working men and women that are 98 percent similar, is one more deserving of First Amendment protection than the other?
The New York Times Co.-owned papers don’t get to pick and choose who gets First Amendment rights — they apply to everyone, and it appears that the Supreme Court will correct this mistake.
UPDATE: Eugene Volokh of The Volokh Conspiricy weighs in on this topic, shredding the Times’ editorial:
But in any event, my point here isn’t so much the substantive point — it’s that a business corporation is publishing a political message arguing that business corporations shouldn’t have the constitutional right to publish political messages, without even (1) mentioning that its argument would apply to itself, and (2) explaining why, despite that, the argument should not apply to itself. (It’s clear, after all, from its past statements and arguments in court that the Times does take the view that it indeed should continue to have constitutional rights.) [emphasis added]
