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.