Citizens United leaves many divided

From the Winter 2010 issue of The News Media & The Law, page 9.

The Supreme Court’s decision in Citizens United v. Federal Election Comission is one of the most controversial high court opinions in a long time, even prompting a special mention during President Barack Obama’s State of the Union speech in January.

The opinion, which split 5-4 along the court’s traditional conservative-liberal lines, wiped out regulations and high-court precedent limiting corporate expenditures on speech in the time period leading up to a campaign — 30 days before a primary or 60 days before a general election.

But from a news media perspective, the result may have been the only acceptable one. After all, almost every media organization regardless of size is incorporated, and an independent news media cannot rely on the courtesy of Congress to provide media exemptions to every new campaign finance law, particularly if legislators next turn to address campaign-related information on the Internet.

The fact that these organizations have First Amendment rights cannot be controversial. Almost all of the cases defining the freedoms upon which the press relies have involved the rights of media corporations. New York Times v. Sullivan relied solely on the First Amendment to establish the “actual malice” requirement for speech about public officials; New York Times v. U.S., the Pentagon Papers case, based protections from prior restraints on the First Amendment; and Richmond Newspapers and the two Press-Enterprise v. Superior Court cases established a First Amendment-based presumption of access to criminal proceedings and records.

So if we accept that the news media corporations are protected by the First Amendment, the only other solution that would have worked would have been an exemption from speech restrictions specifically for media corporations, which would not apply to non-media corporations. And in fact the Bipartisan Campaign Reform Act (also known as McCain-Feingold) did contain an exemption for broadcasters. This was never a simple task, but it has become almost impossible as the definition of “news media” continues to change.

Nonetheless, this is the position that the Reporters Committee for Freedom of the Press staked out in our friend-of-the-court brief in the case.

We told the court that the entire history of corporate communications restrictions did not need to be wiped out, so long as the Court recognized a broad, First Amendment-based news media exception. Relying on an exemption spelled out in a statute would not be enough — the high court would have to find the exemption for media corporations in the First Amendment’s speech and press clauses.

We also argued that this exception could not be narrowly drawn to cover only the institutional or traditional news media — after all, the free press right in the Constitution was really meant to protect the dissemination of speech in written form, not just an industry now known as “the press.” It would have to include almost anyone whose primary purpose was to communicate information to the public.

“This Court should craft the press exemption based on the intent of the news organization to gather and disseminate news to the public, rather than a mere description of its mode of transmission,” the Reporters Committee argued, drawing a line between corporations that communicate news to the public and those that primarily seek to profit from commerce.

But that would leave either the court or Congress to craft an exception to define which corporations were covered and which were exempt. Or at least which of their communications were exempt — and which would be subject to criminal penalties.

In the end, the court rejected the idea that a media exception to the law can make it constitutionally acceptable.

“There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not,” Justice Anthony Kennedy wrote for the majority.

Kennedy added that in reaching its decision to strike down the restriction on corporate speech entirely, it was partially influenced by the example of media companies that publish news and commentary about elections — even though they are exempt from the provisions at stake in the case.

Kennedy found that the “antidistortion rationale” — the theory that big corporations will distort the public discussion of campaign issues because of their accumulated wealth — could actually be used by Congress to directly restrict speech by the news media, if upheld by the court.

“Under the Government’s reasoning, wealthy media corporations could have their voices diminished to put them on par with other media entities,” he wrote. “There is no precedent for permitting this under the First Amendment.”

The antidistortion rationale was relied upon by the Supreme Court in the 1990 case Austin v. Michigan Chamber of Commerce, which was directly overruled by the Citizens United decision.

Kennedy found that the very existence of a news media exemption in the campaign finance law undermines the argument, because the news media’s size and power would distort public discussion as much as other corporations and exempting the media thus fails to remedy the problem.

“The law’s exception for media corporations is, on its own terms, all but an admission of the invalidity of the antidistortion rationale,” Kennedy wrote.

So as Congress looks anew at ways to limit corporate speech during campaigns, the news media must remember that a strong First Amendment is always going to be the best protection.

— Gregg Leslie