An irrefutable right correctly restored


It was either the end of democracy as we know it, or the restoration of it.

That summarizes the reaction to Thursday's Supreme Court ruling in the case of "Hillary: The Movie," in which the court overturned aspects of previous opinions allowing Congress to place limits on how much and when corporations and unions could spend money to advocate for or against political issues or candidates.

Specifically, the court held the McCain-Feingold Act was unconstitutional in prohibiting a group calling itself Citizens United from showing an anti-Hillary Clinton documentary in the final days before the 2008 Democratic presidential primaries.

Predictably, The New York Times on Friday lamented the ruling.

"The majority is deeply wrong on the law. Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights ..." Times editorialists proclaimed. "It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans ..."

Odd, I thought The New York Times was a corporation. Oh, that's right, McCain-Feingold exempts news media corporations.

The Wall Street Journal editorialists on the same day pointed out the hypocrisy of the Times argument.

"The Court's opinion is especially effective in dismantling McCain-Feingold's arbitrary exemption for media corporations," the Journal editorial points out. "Thus a corporation that owns a newspaper -- News Corp. or The New York Times -- retains its First Amendment right to speak freely. 'At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue,' wrote Justice (Anthony) Kennedy. 'This differential treatment cannot be squared with the First Amendment.'"

There is no rationale for exempting the media from restrictions, any more than an argument could be made that news media corporations could have their free press rights abridged simply because they are operated by corporations. The argument is fallacious on its face.

Censorship of a message because of its content or its advocate is clearly unconstitutional. The First Amendment grants not only the freedoms of speech and press, but also "the right of people peaceably to assemble and to petition the government for a redress of grievances." A corporation or a union is an assemblage and political messages state grievances. Free speech is meant to give all citizens access to every viewpoint available. The voters are perfectly capable of rejecting a bogus argument no matter how much money is spent on it or when.

Kennedy, writing for the majority in the 5-4 ruling, spells this out in no uncertain terms.

"The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations -- including nonprofit advocacy corporations -- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election," Kennedy writes.

He points out that this makes it a felony for the Sierra Club to run an ad before an election that exhorts the public to disapprove of a congressman who favors logging in national forests or for someone to tell the voters to support a candidate who favors free speech. "These prohibitions are classic examples of censorship."

In his dissent, Justice John Paul Stevens found quotes from Thomas Jefferson in 1816: "I hope we shall ... crush in [its] birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country." Stevens wrote this was proof the Framers would find the "notion that business corporations could invoke the First Amendment ... quite a novelty."

Justice Antonin Scalia skewered this line of reasoning thusly: "Of course the Framers' personal affection or disaffection for corporations is relevant only insofar as it can be thought to be reflected in the understood meaning of the text they enacted -- not, as the dissent suggests, as a freestanding substitute for that text. But the dissent's distortion of proper analysis is even worse than that. Though faced with a constitutional text that makes no distinction between types of speakers, the dissent feels no necessity to provide even an isolated statement from the founding era to the effect that corporations are not covered, but places the burden on petitioners to bring forward statements showing that they are ..."

The ruling is a restoration of a key democratic principle.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press, free speech and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@ reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.

 

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