Excerpted, by permission of Yale University Press, from “The Soul of the First Amendment” by Floyd Abrams, 2017.
Citizens United held that the fact that a speaker was a corporation could not deprive it of the right to endorse candidates by making independent expenditures that individuals had long since been held to have. In holding that the corporate status of an entity could not negate this right, Justice Kennedy’s majority opinion cited twenty-five cases of the Court in which corporations had received full First Amendment protection. Many of them involved powerful newspapers owned by large corporations; others involved non-press entities such as a bank, a real estate company, and a public utility company.
One might have thought that the press, dependent as it is on expansive First Amendment protection, would support Citizens United, a First Amendment protective ruling with respect to speech about elections. The press had celebrated one case, Mills v. Alabama, decided in 1966, in which the Supreme Court unanimously held unconstitutional a state statute that, in the name of electoral purity and simple fairness, had applied to the press a law that barred on election day only, “any electioneering … in support of or in opposition to any proposition” being voted on by the public. In another press-freedom case, Miami Herald Publishing Co. v. Tornillo, decided in 1974, the Court, again unanimously, determined that a Florida law that required newspapers that had criticized political candidates to provide equal space for responses was facially inconsistent with the First Amendment.
Both of these rulings raised similar issues to those raised by critics of the Roberts Court’s campaign finance rulings. In both, critics of press power and behavior relied on what they urged were democratic principles to overcome the ability of the press to determine for itself what to print and what not.
Why, the proponents of the Alabama legislation asked, at a time when most people received their news from a single newspaper in a community in which there was no other, was it not more democratic to limit election-day editorials so rather than running the risk that the newspaper would have too great an impact on the election by offering, on election day, “last minute political charges without opportunity to answer”? And why, the proponents in Florida of its right to reply statute asked, was it not fairer and more democratic to permit someone accused by a newspaper of some sort of misconduct to reply to the charges?
In both cases, the Court rejected out-of-hand the argument that freedom of expression could be limited in the name of democracy. Yet if full and free discussions of all matters relating to elections could not be limited even for a brief time by legislation purportedly adopted to assure fairness in elections (as Mills concluded) and the expression of more views about whom to vote for could not be legislatively required (as in Tornillo), it is difficult to conclude that the government may limit the amount of speech deemed lawful by limiting the amount of money that may be spent to pay for the dissemination of that speech. It is thus hardly surprising that both the Mills and Tornillo cases were cited and relied on by the Supreme Court in Buckley.
But leading press entities continue to decry the rulings in Buckley and Citizens United, even as their own freedom to speak about candidates and elections as they choose and to spend however much they choose (or are able) to spend in that regard is unlimited. A telling example surfaced after Supreme Court Justice Samuel Alito pointed out in 2012 that in cases involving the press, the Supreme Court had long since established that media corporations possessed sweeping First Amendment rights. “The question,” he said, “is whether speech that goes to the very heart of government should be limited to certain preferred corporations: namely, media corporations.” The very idea, he urged, “that the First Amendment protects only certain privileged voices should be disturbing to anybody who believes in free speech.”
The response of the New York Times was one of consternation. The press was protected, it argued in an editorial because of its function, “the vital role that the press plays in American democracy.” According to the Times, the Citizens United majority had “never explained why any corporation that does not have a press function warrants the same free speech rights as a person.”
But the Times’s editorial fully, if inadvertently, vindicated Justice Alito’s submission that it viewed itself as “preferred” in that it could exist in corporate form and receive full First Amendment protection while nonmedia corporations — universities, museums, theaters, bookstores, and not-for-profit entities such as the American Civil Liberties Union and the National Rifle Association that take positions on public issues — would not.
As for nonmedia corporations, if the Times’s position were correct, as Brooklyn Law School professor Joel Gora has observed, its corporate owners could “endorse a presidential candidate on page twenty-six” while “the corporate owners of General Motors” could be held criminally liable for publishing an ad with the identical message on page twenty-five. Or for publishing a message that disagreed with that of the Times.