Times and Post editorials betray inconsistency on the principles of free speech

With a predictable jerk of their left knees the perfidious pontificators at The Washington Post and The New York Times grabbed their pom-poms to cheer on Democratic Sen. Charles Schumer of New York and Rep. Chris Van Hollen of Maryland in their end run on the U.S. Supreme Court ruling restoring political speech rights to corporations and unions.

The two lawmakers are pressing legislation that would require a labyrinth of disclaimers, disclosures and declarations by any company bold enough to reach into its coffers to pay for messages to the voters about candidates and issues.

“If corporations are going to get directly involved in political campaigns, such transparency about their spending is imperative,” the Post editorialists write.

The Timesmen opined that “the transparency provisions should appeal to anyone who cares about clean government.”

Anonymity, these two proud papers seem to be saying, is anathema to good government.

Let us ponder.

The first case that pops up in any journalism law course is that of John Peter Zenger, who in 1735 Colonial New York was tried for libel for printing anonymous criticism of the governor. The jury ignored the law and acquitted, because what was printed was true.

John Locke printed his treatises on government anonymously. The pro-independence pamphlet Common Sense was printed anonymously. The Federalist and Anti-Federalist Papers were printed under pseudonyms. Old Ben Franklin often used a pseudonym.

In part IV of the court case Citizens United v. FEC that started this rush to disclose, four of the five justices in the minority shrugged and conceded some possible constitutionality for the requirement. But Justice Clarence Thomas wrote a dissent.

“I dissent from Part IV of the Court’s opinion, however, because the Court’s constitutional analysis does not go far enough. The disclosure, disclaimer, and reporting requirements in BCRA §§201 and 311 are also unconstitutional,” Thomas wrote, citing a 1995 case out of Ohio in which the court said a woman had the right to distribute unsigned leaflets critical of her local school board.

“Congress may not abridge the ‘right to anonymous speech’ based on the ‘simple interest in providing voters with additional relevant information,’” Thomas quoted.

Anonymity in free speech is a long and well-established tradition that has held up longer than quaint gags on corporations, like the Tillman Act.

Once again, the language is clear and unambiguous: “Congress shall make no law … abridging the freedom of speech, or of the press …”

Forcing disclosure is by definition an abridgement.

Both the Times and the Post have editorialized in favor of a federal shield law that would protect journalists who use anonymous sources from being dragged into federal court and forced to reveal those sources.

And both are owned by corporations and enjoy an exemption from the McCain-Feingold Act, which makes their free speech protection statutory, rather than constitutional, if you buy their arguments.

Additionally, both editorials were unsigned.

There seems to be a bit of perfidy in their prose.

"THE TRIAL OF JOHN PETER ZENGER
Resulting In the VICTORY For The
FREE PRESS

ANDREW HAMILTON
The question before the Court and you, Gentlemen
of the Jury, is not of small nor private concern nor
is it the cause of a poor printer, nor of New York
alone. No, it may affect every Freeman to deny
the liberty of both exposing and opposing
arbitrary power by speaking and writing truth.
August Fourth 1735"

Presented to the State Library with the compliments of the artist.
David. C. Lithgow