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Jared Haynie: The New York Times defends speech inequality

Published: Monday, July 6 2015 5:15 p.m. MDT

Front of the New York Times building. (Erika Cross / Shutterstock.com) Front of the New York Times building. (Erika Cross / Shutterstock.com)

The New York Times wants free speech rights for itself that it would just as soon deny to the rest of us.

In a recent public address, Justice Alito conceded that the popular media has largely succeeded in creating an inaccurate and derogatory caricature of the high Court's 2010 Citizens United decision—namely that Citizens United gave corporations First Amendment rights.

The Times, ever anxious to spread its disgust for Citizens United, took time to respond to Justice Alito's comments in an editorial. More on that later.

But first, a quick refresher. For those of you who recognize the name Citizens United but have forgotten the particulars, Citizens United involved a group of citizens, organized as a nonprofit corporation, who produced a political documentary critical of a prominent presidential candidate. Naturally, they desired to broadcast their documentary (obviously, they hadn't produced the film for their own benefit), and sought to do so via video-on-demand television. Federal law, however, banned them from doing so, because and only because these citizens just happened to have organized themselves under a corporate form. Thankfully, for freedom's sake, the Supreme Court ultimately held that the law banning the airing of the documentary was an unconstitutional infringement on the freedom of speech.

But contrary to widespread myth, the Court did not chart any new ground vis-?vis the question of constitutional rights and corporate groups. Technically, in fact, the Court did not even give corporations free speech rights at all. Rather, it merely recognized what the Court had already known and recognized for generations, namely, that people do not give up their constitutional rights merely because they band together in organizations, whatever their organizational form might be.

Those, like The New York Times, who express unreserved disdain for Citizens United, must come to terms with the fact that Citizens United unquestionably upheld political speech. Since when did that become a bad thing, in America?

But they must also come to terms with the fact that the Court has long since recognized that people who form corporations do not thereby surrender constitutional freedoms. To take but one example, for better or for worse, the Court has recognized for years that corporations have a First Amendment right to peddle pornography. Where was the outcry, then, that the Court was "giving" corporations free speech rights? It was non-existent, of course.

Do those who pooh-pooh Citizens United seriously expect us to think that the First Amendment protects a group's (for-profit) distribution of pornography, but offers no protection at all if the same group wishes to engage in political speech? If they do, their low opinion of the American public is as deserving of scorn as their ridiculous proposition.

True, there was, once upon a time, intense public debate over whether pornography deserved First Amendment protection (and that debate should be revived), but there was never any serious debate about whether, if pornography was to be protected, corporations could produce and distribute it. Indeed, the notion that people lose their rights by joining together with likeminded people (yes, under the corporate structure) is silly. Consider the ramifications of such an idea. Many churches, for instance, are incorporated. Should First Amendment religious liberty protections not apply to them? Most media groups, large and small, are likewise incorporated entities. Should they lose their constitutionally protected freedom of press on that account? Where does this logically end? What about the Fifth Amendment takings clause? Should the government be given a free-for-all to take whatever property it pleases, so long as what is taken is owned by a corporation?

The issue of constitutional rights retained by individuals who organize themselves as corporations is not new. But because it makes for a good sound bite, some, like the Times, have latched onto it and won't let go.

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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