The law at issue in Citizens United had an interesting twist and this is where the Times' editorial comes into play. Under the law, not all corporations were banned from engaging in political speech (insofar as the law applied). Almost all were banned, but not all. There was a notable exception carved out for certain preferred corporations — specifically, the media. So, media corporations could do and say as they pleased. The rest of us were stuck with a law that unquestionably "abridged" (to invoke the language of the First Amendment) the freedom of speech.
And it was on this little caveat that the Times recently engaged. You see, in his comments, Justice Alito had said, "Surely the idea that the First Amendment protects only certain privileged voices should be disturbing to anybody who believes in free speech." What would the Times say to this? Surely the Times would not argue for a double standard of rights — or would they? Remarkably, the Times' response, in essense, was: "Some voices, including ours, should be privileged above the rest." Their exact words were: "It is not the corporate structure of media companies that makes them [more] deserving of constitutional protection. It is their function — the vital role that the press plays in American democracy — that sets them apart." (I added the "more" part here because that is precisely what the Times meant. No one is suggesting here, or anywhere, that media corporations do not "deserv(e) ... constitutional protection.")
This is serious stuff. The Times, in its editorial, is actually defending the argument that it — and its media brothers and sisters — deserves greater free speech rights than the rest of us, because of its "vital role." What about the vital role that each of us plays? Or have we progressed so far along the path to serfdom that we are willing, even eager, to relinquish our most precious rights to the mighty few?
The Times is fond of invoking egalitarian principles, but now it insists it is "more equal" than the rest of us. Heaven forbid that any of us, like those citizens who banded together in Citizens United, should have ideas of our own that we would like to share.
Jared Haynie practices constitutional law in Terre Haute, Ind
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