Does the First Amendment Protect the Corporate Speech of the New York Times Company?

Critics of last year’s Supreme Court decision in Citizens United v. F.E.C. assert that the First Amendment should not apply to corporations. In his latest “Sidebar” column, New York Times Supreme Court correspondent Adam Liptak considers the implications of that argument:

If corporations have no First Amendment rights, what about newspapers and other news organizations, almost all of which are organized as corporations?

The usual response is that the press is different. The First Amendment, after all, protects “the freedom of speech, or of the press.” Since “the press” is singled out for protection, the argument goes, media corporations enjoy First Amendment rights while other corporations do not.

But the argument is weak. There is little evidence that the drafters of the First Amendment meant to single out a set of businesses for special protection. Nor is there much support for that idea in the Supreme Court’s decisions, which have rejected the argument that the institutional press has rights beyond those of the other speakers.

Liptak is right about the argument being “weak,” but that hasn’t stopped some of his colleagues from embracing it. New York Times editorial board member Adam Cohen, for example, argued in the run-up to Citizens United that “the Constitution never mentions corporations or their right to speak.” Cohen is of course willing to make an exception for the corporation known as the New York Times Company, but as Liptak notes, that selective approach doesn’t square with the Constitution’s text and history.

For more on Citizens United and the First Amendment, see Jacob Sullum’s “You Are Now Free to Speak About Politics.” And for 3 reasons not to sweat Citizens United, check out the video below.

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  • Fist of Etiquette||

    I thought the press in "freedom of the press" was the printing press, the device, not the press as in the enterprise. Citizens were free to use the press to carry their voice.

  • Janet Napolitano||

    I like where you're headed, Fist.

  • Julius Genachowski||

    Let me get a note pad...

  • ||

    Exactly. The right to free speech isn't limited by the means of communication.

    -jcr

  • Irresponsible Hater||

    That occurred to me too, but only recently. Seems like the term "the press" must have at least originated as meaning the tool itself. Like, if we were talking about everyone's freedom to make wine, and talked about the freedom of the grape press. As in "The government won't lay a hand on or interfere with anyone's use of a press."

    I wonder when "the press" came to mean the group of people that use presses? When did it start to denote a class? Before the 1st amendment was written, or after?

  • Linguist||

    According to the OED, the first recorded use of 'press' to mean 'source of news, commentary, books, newspapers etc.' was in 1661:
    1661 A. Brome Songs & Other Poems 129 And carefully muzled the mouth of the press, Least the truth should peep through their jugling dress.

  • cynical||

    Shockingly, the press prefers the system where members of a certain caste are given special privileges under law, , even if this is achieved by restricting a right once available to all citizens to only themselves. Egalitarian my ass. Liberal my ass, for that matter.

  • ||

    Would my printer be considered a press?

    And if it is and I print DRM protected computer code would this not make enforcement of DRM unconstitutional?

  • Fist of Etiquette||

    Only if it's inkjet.

  • Night Elf Mohawk||

    New York Times editorial board member Adam Cohen, for example, argued in the run-up to Citizens United that “the Constitution never mentions corporations or their right to speak.”

    Congress shall make NO law... (emphasis added). Why would the Constitution need to mention a corporate right to speak when Congress shall make NO law, not "NO law, except with regard to corporations..."?

  • Zeb||

    I don't see the individuals right to speak or publish mentioned in the constitution either.

  • ||

    Exactly -- 1A doesn't "grant rights" at all, it places a firm limit on what the government is allowed to do. Amazing how many people are totally unable to recognize the difference.

  • Gilbert Martin||

    "Adam Cohen, for example, argued in the run-up to Citizens United that “the Constitution never mentions corporations or their right to speak.”

    This is called changing the subject.

    The prohibition is on Congress to refrain from restricting speech.

    The nature of who - or what - is doing the speaking is irrelevant.

  • alan||

    If dolphins could speak, Congress would have no power to regulate the content if they kept to Constitutional limitations.

    Artificial Intelligence, the very same applies, Congress would have no power to regulate the content if they kept to Constitutional limitations.

    What is so hard about the concept that they do not get it? Getting it right is child's play. Getting it wrong takes such a convoluted thought process, and willingness to deceive, even if it is just oneself, that you do damage to your own mental wellbeing to accomplish the task. Hence my contempt for those frothing at the mouth over Citizens United, or who make sniveling jokes about corporations being considered people. Ironically, the framework of that idea comes from the very precedent they claim to be of central importance in understanding the living document of the Constitution. But it is nothing but an aside argument to the very fact the Constitution in made up of enumerated powers where the very first phrase of the Bill of Rights is, 'Congress shall make no law . . .'

  • Lawyers||

    Getting it wrong takes such a convoluted thought process, and willingness to deceive, even if it is just oneself, that you do damage to your own mental wellbeing to accomplish the task.

    Your point being?

  • alan||

    There not being enough coke in the world to gum up that hole in your soul isn't a sufficient enough deterrent?

  • Zeb||

    I wonder if at the time the constitution was written "the press" was already used as a metonym for news reporting people and organizations, or if that was a later development. It seems obvious to me that "the press" in the 1st amendment refers to the device, not the established newspapers, so there should be no restriction on any published material, no matter who produces it or for what reason. But a lot of people seem to believe that "the press" is supposed to be limited to serious journalists only. But I suspect most of these people are just liars and don't really care what the constitution says as long as they get the answer they want from the court.

  • JoshINHB||

    Worse,

    They're rent seekers, trying to get a monopoly of information flows.

  • ||

    The question works against CU critics no matter how you ask it. For instance: is NBC (a wholly owned subsidiary of the largest corporation in the country) part of "the press"?

    If so, why? If not, can we fucking arrest Brian Williams already?

  • Linguist||

    see answer at 1:54 PM.

  • Johnny Longtorso||

    How is a corporation formed for the purpose of making an anti-Hilary movie not a "media corporation"?

  • ||

    I'm guessing the answer would be something like, when it comes to media corporations, I know one when I see one.

  • Johnny Longtorso||

    In a highly unusual move, Genachowski decided to keep the text of the proposal secret until after it passed.

    God I hate these people.

  • Johnny Longtorso||

    Wrong thread. I do hate them, tho.

  • DJF||

    If you object to corporate power then the thing to do is to get rid if the government granted privileges that corporations and their owners enjoy. Get rid of the special position that some get from government granted privileges just because they organize themselves in particular ways that the government rewards.

  • ||

    Please specify these privileges, DJF.

  • DJF||

    Limited liability for stockowners for one. Or are you not aware of what a corporation is?

  • MJ||

    Why limited liability for stockowners something that is beyond the pale? Why would any small investor buy stock if they are opening themselves to unlimited liability for one share of stock?

  • cynical||

    That's a consequentialist argument, of which there are many to made by libertarianism's opponents.

    Limited liability doesn't involve the consent of those who might have a legal gripe against the corporation's owners, who ought to be held responsible for the behavior of the corporation, insofar as ownership suggests control, and control suggests responsibility.

  • Rrabbit||

    Limited liability for stockowners is ok. Non-existant liability for top level managers is not ok. It shouldn't be possible for a CEO to make 100 million when the decisions he makes cost the company 50 billion in a quite predictable way.

  • cynical||

    That's sort of a consequence of limited liability for stockowners, since it places ownership in the hands of people who largely fail to exercise the control responsibility that comes with it (small investors and mutual funds).

    If spreading little hundred dollar stock buys across a portfolio opened you up to personal liability in each case, you'd be insane to do so -- investors would place more money into fewer investments instead, and exhibit a preference for those where their voice mattered as an owner.

  • CrackertyAssCracker||

    Ya, we are all for limited liability.

    But you said privileges, plural. So what other privileges do you find objectionable?

  • DJF||

    Since I am not in favor of the government granting limited liability then and you appear to be in favor of it I see no reason to go any farther.

  • Barely Suppressed Rage||

    You seem to be operating under the gross misconception that people would continue to engage in various business activities that benefit everyone if they were stripped of the ability to do so through a corporate entity that shields them from personal liability.

    If you're so against corporations, I suggest you get rid of all of your clothing, electronic devices, your house and your automobile. And GTFO the Internet.

    And you also blithely assume that being shielded from personal liability via a business entity somehow provides license to kill babies with zero repercussions or something.

    In short, your apparent perception of the situation is overly simple and childlike.

  • creech||

    Hey, if corporation-haters think that
    Microsoft or Exxon Mobil can be organized as a partnership instead of a limited liability corporation, then
    the same applies to Times Corp. or
    Comcast.

  • ||

    Poetry, creech. Pure poetry.

  • DJF||

    Why should corporations of any type get special laws provided by the government. Shouldn’t a free market be without the government giving some a special place in law. I see no reason why either Microsoft, Exxon Mobile, New York Times, Goldman Sachs, The British East Indies Company or anyone else is vital to a free market.

  • Anonymous Coward||

    Why should corporations of any type get special laws provided by the government.

    For the same reason women and children get special laws by the government. Those who pass the laws receive some benefit from passing them.

    I'm with you that all laws should be equally applicable to everyone, if that is the point you're trying to make, instead of an OMG!!! IT'S THE EVIL CORPORATIONS!!

  • ||

    One could make a case that "the press" at the time of the Founding [*angel chorus*] was quite similar in principle to a blog post of today; many people hired printers to run one-off anonymous screeds which were then circulated among the populace.

  • MJ||

    Which renders the idea that Constitution must be more flexible because technological advances have rendered it obsolete laughable.

  • Chupacabra||

    Were there trolls at the time of the founding, too?

  • Anonymous Coward||

    Trolls have been with us since time immemorial.

    VII.9 (Eumachia Building, via della Abbondanza); 2048: Secundus likes to screw boys.

    -Corpus Inscriptionum Latinarum

  • ||

    I think "speech, or the press" is in there to make it clear that the means of communication didn't matter. At the time, either oral or ink on paper were pretty much the only options.

    Nobody would seriously argue that the 1A applies only to spoken communication, and material distributed by news media, but does not include communications written by hand. However, that seems to be the implication of the argument being advanced by the special pleaders in the news media.

    One of the great travesties of Constitutional interpretation is the made-out-of-whole-cloth distinction between "protected" speech and "commercial" speech. That is what opened the door to slicing and dicing which communications are protected, and which aren't.

  • ||

    distinction between "protected" speech and "commercial" speech.

    People buy the NYT so they can laugh at Friedman and Krugabe and Brooks; that seems like commercial speech to me.

  • Downsize DC||

    If corporations don't have 1st Amendment rights to promote political speech, neither do they have the right to produce, say, Harry Potter books and movies, or anything else. It's not even a "slipperly slope" the would-be censors have to address; they're already slid to the bottom.

  • MJ||

    Which makes it a huge strain of credibility when anyone claims that the left is good on civil rights.

  • ||

    Limited liability for stockowners for one. Or are you not aware of what a corporation is?

    Dude, I've been a corporate lawyer for over 20 years.

    What you refer to as a "special privilege" doesn't protect corporations at all. It protects their passive investors.

    And (pay attention closely here), it is not a privilege that arose when corporation statutes were passed. It reflects traditional tort and agency law. A corporate stockholder is a passive investor, meaning he has no part in the management or actual activities of the corporation. He is not an "agent" of the corporation. Agents of the corporation (management, employees, etc.) are liable for what they do (or direct to be done).

    So: the corporation is always fully responsible, legally, for what it does. Those who control it are responsible for what it does. Those who have no control are not.

    Doesn't smell like a special privilege to me.

  • Barely Suppressed Rage||

    Don't try to educate the uneducable, and don't confuse the poor boy's chosen world view with actual facts.

    It's like trying to teach a pig to sing. All you do is waste your time and annoy the pig.

  • ||

    Stupid joke handle off.

  • NL||

    The founding generation was greatly influenced by Paine's Common Sense. It was a one-off polemical publication making philosophical and rhetorical arguments for American autonomy. It was one of the most widely read works at the time, and was discussed widely across the country. It would have been the most famous example of freedom of the press (since the pamphlet was either treasonous or bordering on treason).

    Common Sense is a lot more similar to Hillary: The Movie or Fahrenheit 9/11, which are both one-off polemics with clear viewpoints, than it is to something like the NYT or WSJ. Newspapers (and radio news, TV news, etc.) are made serially no matter what's going on, and are not specially targeted to major national issues. They are also at least theoretically trying to be viewpoint-neutral.

    If freedom of the press is going to be selective, the historical case is that Citizens United and Michael Moore have a stronger case than the traditional news outlets. Hopefully this will convince journalists to be less stingy in their conception of press freedom.

  • Jack||

    Is part of people's problem with Citizens United that it equates donations with speech? For example, I don't think anyone would seriously say that they don't think the head of News Corp. or NBC should be prohibited from speaking their mind, BUT it doesn't necessarily follow that that specific freedom translates into unrestrained political donations, given the law-making ability of the recipient.

    Essentially, nobody is telling anyone they have to shut up or else, just that it shouldn't be quite so easy to buy laws favorable to your position. This should be the very antithesis of libertarianism; making it easier for already connected actors to purchase votes helping to cartelize their position.

  • Rrabbit||

    Agree, but I'd word it differently: Bribing politicians is not constitutionally protected "speech".

  • MJ||

    Citizen's United was not about campaign donations directly. It wa about whether a corporate entity could spend money producing a politically opinionated documentary near an election. At best, the documentary could be considered a donation in kind for Clinton's opponents, but the crux of the matter was not about cash donations.

  • Zeb||

    Corporations still can't donate to campaigns.

  • ||

    Is part of people's problem with Citizens United that it equates donations with speech?

    I submit that you cannot protect speech unless you protect the expenditure of resources on speech.

    Otherwise, your freedom of speech is the freedom to talk to whoever can hear your unamplified voice.

  • ||

    Otherwise, your freedom of speech is the freedom to talk to whoever can hear your unamplified voice.

    I don't even think it goes that far.

    I mean if you drove around and talked to as many poeple as you could then wouldn't the money you spent on gas be considered campaign contributions?

  • ||

    but as Liptak notes, that selective approach doesn’t square with the Constitution’s text and history.

    Liptak should also note that it does not square with the constitutional case law and interpretation of the supreme court as well.

    The left often hang their hat on case law (see commerce clause)...I think it is important for the Tonys and the Maxs of the world yo see that the left's arguments are blocked by the Trifecta of history, text and case law.

  • Barely Suppressed Rage||

    The ridiculous thing about the laws at issue in the Citizen's United case is that they tried to address the concern that someone (or several someones working together) might try to "influence" a voter's choice during an election.

    OMFG!! You can't do a candidate advocacy piece within 30 days before an election! You might try to influence someone's choice!!

    Well no shit.

    It's another case of trying to protect people from their own stupidity.

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