The Media and Corporate Free Speech
President Obama says the Supreme Court made a big mistake. The pre-eminent First Amendment expert disagrees.

The Wall Street Journal, Saturday, January 30, 2010

I met Floyd Abrams the other evening at the midtown Manhattan headquarters of a multibillion-dollar corporation that a few days earlier had exercised its First Amendment rights to argue that corporations do not have First Amendment rights. I came to the New York Times Co. building not to look in on the competition, but to see the celebrated First Amendment lawyer speak on a panel about press freedom.

Mr. Abrams has represented the New York Times Co. from time to time, most notably in the landmark Pentagon Papers case of 1971. But he and his erstwhile client took opposite sides in the decision we had gotten together to discuss. Citizens United v. Federal Election Commission, which the court decided last week in a 5-4 decision, invalidated federal laws that made certain political speech a crime.

Although Citizens United wasn't Mr. Abrams's case, "I took a special pleasure . . . in this ruling," he tells me over drinks following the panel. That's because it overturned a 2003 decision in a case he lost, McConnell v. FEC, in which a 5-4 majority upheld provisions of the 2002 McCain-Feingold law, including one that criminalized corporate funding of "electioneering communication" within 30 days of a primary or 60 days of a general election. Seven years later, with Justice Samuel Alito in the majority, the court reversed that holding.

The First Amendment is the lifeblood of the press. Yet most newspapers--the one you are reading is a notable exception--take an editorial position similar to that of the Times. Why? "I think that two things are at work," Mr. Abrams says. "One is that there are an awful lot of journalists that do not recognize that they work for corporations. . . .

"A second is an ideological one. I think that there is a way of viewing this decision which . . . looks not at whether the First Amendment was vindicated but whether what is simply referred to as, quote, democracy, unquote, was vindicated. My view is, we live in a world in which the word 'democracy' is debatable . . . It is not a word which should determine interpretation of a constitution and a Bill of Rights, which is at its core a legal document as well as an affirming statement of individual freedom," he says. "Justice Potter Stewart . . . warned against giving up the protections of the First Amendment in the name of its values. . . . The values matter, the values are real, but we protect the values by protecting the First Amendment."

A third factor surely is that McCain-Feingold exempted media corporations from its strictures against electioneering. Under this regime, free speech was not a constitutional right but a privilege granted by Congress to companies like those that own the Times and the Journal, but denied to other businesses, labor unions and nonprofit advocacy corporations.

One such group is Citizens United, which produced "Hillary: The Movie," a harshly critical 90-minute documentary. It sued when the FEC denied it permission to broadcast the film via on-demand cable during the 2008 presidential primaries. "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?"

Another corporation whose speech was chilled by McCain-Feingold was the American Civil Liberties Union. In his 2005 book, "Speaking Freely: Trials of the First Amendment," Mr. Abrams reports that during the 2004 campaign, the ACLU "broadcast advertisements denouncing the Patriot Act but refrained, as McCain-Feingold required, from criticizing (or even mentioning) President Bush as it did so." Writing for the court in Citizens United, Justice Anthony Kennedy noted that if the ACLU "creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech," it would be guilty of a felony under McCain-Feingold.

Yet even though the ACLU filed a friend-of-the-court brief urging the justices to rule as they did, its Web site has been silent on the decision. Last weekend the ACLU's board met to consider reversing its longstanding opposition to limits on corporate political speech. Mr. Abrams was invited to make a case against the proposed turnabout.

On the other side was Burt Neuborne, a law professor at New York University. "Professor Neuborne argued that the potential for social harm due to the expenditure of large sums by corporate America was dangerous and worse--that it cannot be tolerated," Mr. Abrams recounts. "I argued that the ACLU had been right all these years in its position. I also pointed out that outsiders might think it a bit fickle for them to change their position days after they had achieved one of the great civil-liberties victories in recent years.

"And I said to them: Look, you bring cases, such as one to strike down a law of Congress which was aimed at 'virtual child pornography'--not real children being filmed, but otherwise wholly pornographic. . . . I said: You didn't do it because you wanted to protect the folks who like to watch child pornography. You did it because you thought the government shouldn't be trusted to make content decisions about who watches anything, and because you thought the principle of avoiding governmental control over what is available on the Internet was so strong."

That case, Ashcroft v. Free Speech Coalition, went to the Supreme Court. As in Citizens United, the ACLU's position prevailed in a decision written by Justice Kennedy in 2002. But in Ashcroft he was joined by the four liberal justices rather than the conservatives.

Mr. Abrams says that after he pointed this out to the ACLU board, "I warned that I thought the worst thing the ACLU could do is to become just another liberal public-interest group." The board left the question unresolved pending further study.

Mr. Abrams defends corporate free speech on practical grounds as well, arguing that there is no evidence it causes social harm. Federal regulations do not apply to campaigns for state and local office, and "over half the states have allowed unlimited expenditures and contributions by corporations and unions for a number of years. We haven't seen any explosion of corporate domination or union domination of the political landscape." Nor are states without limits more corruption-prone than those with them.

In Mr. Abrams's view, Citizens United advances rather than hinders democracy: "We want, for example, more Gene McCarthys and Ross Perots and individuals to come upon the scene and have a chance to build a war chest and go on out and try to reform the country as they think best."

McCarthy--the antiwar Minnesota senator whose surprising strength in the 1968 New Hampshire primary prompted Lyndon B. Johnson's retirement--was directly bankrolled by a few wealthy donors. That would be illegal today. The high court upheld restrictions on campaign contributions in Buckley v. Valeo (1976). Although such rules were not at issue in Citizens United, Justice Kennedy made clear that Buckley is still good law because unlimited donations create "the potential for quid pro quo corruption."

To Mr. Abrams, this a reasonable distinction: "I think there's room for more governmental involvement with respect to contributions, because there, I think, there is a greater risk of something in the order of quid pro quo corruption. . . . As of right now, the court has struck the balance pretty well."

Yet if there's no evidence from the states that unlimited contributions encourage corruption, isn't there a strong case for overturning Buckley too? Mr. Abrams demurs: "It's a serious argument, and there's no doubt that it raises First Amendment issues. But my reaction is that where we are now is pretty much where we ought to wind up."

He also rejects my suggestion that judicial liberals have become less supportive of free speech in recent decades. "Very few people are really supportive of free speech, whether they're liberals or conservatives," he says. "The First Amendment for many years played the role, when it triumphed in the courts, of protecting the speech of people who tended to be on the left--so it was minorities or the powerless in our society. The liberals on the Supreme Court today would still protect those people and their rights . . . What's changed is that conservatives found some causes which they have used to vindicate genuine First Amendment rights." He says that Justice Kennedy stands "all by himself on the court" as "the single most consistently protective jurist of First Amendment rights."

Mr. Abrams points out that the first restrictions on corporate and union political speech--overturned along with McCain-Feingold in Citizens United--were part of the Taft-Hartley Act of 1947, a measure that aimed at curtailing labor's power. Taft-Hartley "was vetoed by Harry Truman on the ground that it violated the First Amendment," but the Republican-controlled Congress overrode the veto.

That's a cautionary tale for anyone who seeks advantage by restricting the freedom of others--including media corporations that supported McCain-Feingold because they were exempt from it. If corporations have no First Amendment rights, it is dubious to suggest that media corporations do have such rights.

"The decision in Citizens United provides significant protection for the press in the future," says Mr. Abrams. "The press cannot depend, and indeed ought not depend, upon the largess of Congress to exempt it from regulations on speech that affect the rest of American society. I'm a strong believer not only in protecting the press, but that the press has been the instrumentality which has helped to establish broad protections for all of us through the years."

An example is the 1966 case of Mills v. Alabama, in which the Supreme Court overturned a state law similar to McCain-Feingold except that it applied to the press. A Birmingham editor had been convicted under the Alabama Corrupt Practices Act for publishing an Election Day editorial favoring a local ballot measure.

The law's "electioneering" ban applied only on Election Day, a much narrower restriction than McCain-Feingold's 30- and 60-day limits. The state said the law's purpose was to prevent social harm, namely "confusive last-minute charges and countercharges . . . when, as a practical matter, because of lack of time, such matters cannot be answered or their truth determined until after the election is over."

There was an argument, too, that citizens needed protection from aggregations of power. As Mr. Abrams notes, "many cities, especially small towns, had only one newspaper, and it was the place from which people got most of their news." But "the Supreme Court said unanimously . . . that the notion that a newspaper should be kept from publishing what it wanted to publish--even just one day of the year, even for a supposedly good cause--was alien to this country."

Like any good lawyer, Mr. Abrams can argue in the alternative. I pose a hypothetical: Suppose that Citizens United had gone the other way, that Congress subsequently abolished the media exemption, and that a newspaper corporation hired him to argue that it does have First Amendment rights, even if other corporations do not. How would he make the case? Again he cites Justice Stewart, who held the view that "the institutional press was the only entity set forth in the Bill of Rights as deserving of special protection." Accordingly, Mr. Abrams says, "I would argue . . . that because of the role of the press, it was unconstitutional . . . to bar the press from doing everything it now does."

Later he notes that Citizens United, having been decided 5-4, could be reversed if the court's makeup changes. "I really might have that case one of these days," he says with a chuckle. That would be a supreme irony--especially if his client, once again, was the New York Times Co.

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