Dan Abrams on 'the Media's Shameful, Inexcusable Distortion' of Citizens United

In a new Mediaite column, ABC News legal analyst Dan Abrams—whose father is Floyd Abrams, the legendary First Amendment champion who helped make the case against the speech restrictions that the Supreme Court overturned two years ago in Citizens United v. FECobjects to "the media's shameful, inexcusable distortion" of that decision. Abrams highlights two common misconceptions: 1) that Citizens United abolished disclosure requirements, when in fact it explicitly upheld them, and 2) that Citizens United let rich people spend unlimited amounts of their own money on political messages—a right they have always had, as recognized in the 1976 decision Buckley v. Valeo. As an example of the second misstatement, he cites a New York Times story that I mentioned last month, along with similar glosses by Times columnist Gail Collins, Washington Post columnist Dana Milbank, and NBC analyst Michael Isikoff. Abrams, who says he thinks Citizens United should have been decided on narrower grounds and has argued with his father about the decision, is nevertheless indignant about persistent journalistic misrepresentations of what the Supreme Court said, and he marvels at the response to his father's participation in the case:

I have also been amazed at the vitriol directed at my civil libertarian dad from the left over his defense of a constitutional principle he firmly believes in. Defend a Nazi’s right to march? No problem. Defend the most repugnant members of our society’s right to speak? Absolutely. Defend a corporation’s right to engage in the political process? Inexcusable.

See my December 2010 Reason cover story for more on over-the-top reactions to Citizens United. Speaking of which, one of the journalists Abrams criticizes, Washington Post columnist E.J. Dionne Jr. (whose "screed against free speech" Ron Bailey noted on Monday), claims Citizens United "tore down a century's worth of law aimed at reducing the amount of corruption in our electoral system." One of the statutory provisions the Court overturned, McCain-Feingold's ban on "electioneering communications," was enacted in 2002, while the other, the ban on "express advocacy" by unions and corporations, has its roots in a 1947 law—still 37 years shy of a century before Citizens United. President Obama was even further from the truth when he claimed, in the part of his 2010 State of the Union address that made Justice Samuel Alito shake his head, that the Court had "reversed a century of law," apparently referring to the Court's own precedents. In fact, the decisions that Citizens United reversed, Austin v. Michigan Chamber of Commerce and  McConnell v. FEC, date from 1990 and 2003, respectively.

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  • Public Union||

    Only our money influences elections.

  • H man||

    Nazis > corporations??

  • A. A. Wolk||

    No, but liberatarians = Nazis.

  • Jeffersonian||

    It's the monocles.

  • juris imprudent||

    In fact, the decisions that Citizens United reversed, Austin v. Michigan Chamber of Commerce and McConnell v. FEC, date from 1990 and 2003, respectively.

    Considering that most every leftie/proggie I've ever known had the attention span of a fruit fly on meth, a decade or two is like a century.

  • Ezra Klein||

    Man, that Constitution you dudes hug like a baby is, like, a hundred years old and stuff!

  • Killazontherun||

    We have to because your team has a scalpel and a hoover vac ready the moment we let go of it.

  • Justice Chase||

    I thought the two misconceptions about what the CU ruling said would be:

    1) Corporations are people
    2) Money is speech

    That's all I hear anyone talking about, anyway.

  • CrackertyAssCracker||

    Those are the level zero stupid reactions. The article is about stupid from the next notch up the chain of stupid command.

  • Gojira||

    Imagine their horror if some hard-right Christian Nazis formed a for-profit corporation which also excluded women. And then spent money on elections.

  • ||

    Wow - you should at least glance at the 14th Amendment before you say such vile things.

  • ||

    I have also been amazed at the vitriol directed at my civil libertarian dad from the left

    In the 20th century the left killed over a 100 million poeple.

    Hell they still kill people in the millions each year by their irrational opposition to the use of DDT to control malaria.

    I am amazed that anyone is amazed at anything the left does.

  • Anonymous Coward||

    New line of statist thinking:

    Okay money is speech. The government controls the supply of money. Therefore the government should be able to control all speech resulting from money.

    Boom. Done.

  • Buddy Bizarre||

    Don't give them any ideas!

  • BakedPenguin||

    The left really wants hate speech laws.

    Because they really hate speech.

  • ||

    If only we could have a law against you double-posting.

    The thing people need to understand is that the left doesn't give the tiniest shit about civil liberties, and the fact that they convinced people they do was a bit of brilliant propaganda. The right is no better but they never managed to pull off the sleight of hand the left did.

  • ||

    Where the left went wrong was when they started viewing government as the cure, rather than the disease.

  • Gojira||

    They convinced a whole generation of gullible people that they gave a shit about "smaller government" and "less regulation". Same trick, different dog whistles.

  • ||

    Yes, good point. Liars all.

  • Gojira||

    Also, racism. Straight up.

  • Killazontherun||

    Ah, Janeane! Why did we stop dating . . . oh, yeah, you stopped being cute thirty seven minutes into your acting career.

  • BakedPenguin||

    I'd just become an an-cap and then ignore the law.

    They make noises about civil liberties when the other team is in control, but that's about it. Just like the right does economically (as Jim points out) when they're not in power.

  • Gojira||

    I can only imagine the faces of the PETA workers when you tell them that you bake penguins. Which only a capitalist could do, since I'm sure they're very expensive to obtain in any quantity.

  • ||

    But they're just so delicious, Jimbo.

  • Hugh Akston||

    I wonder what PETA would say about what he does to penguins before he bakes them.

  • BakedPenguin||

    Don't judge me!

  • Hugh Akston||

    I'm not judging bro. Just like Pham and his demented monkey lust, I see it as a cry for help.

  • Gojira||

    I'm curious why you would eat an animal that looks like it's wearing a tuxedo, and thus is most likely to be wearing a monocle. We should embrace them as our brethern.

  • ||

    Only the strongest and wealthiest tuxedo-wearing monocle-sporting creatures can survive, Jimbo, which is why the weak ones like you and Hugh must be culled.

    Thanks for coming over for dinner. On the menu: you and Hugh.

  • Hugh Akston||

    It's because I showed compassion for Penguin, isn't it? I've violated the most sacred tenet of libertarianism.

    ::hangs head in shame:: Go ahead, I deserve it.

  • Gojira||

    I don't think Hugh the Sentient Borg is going to be as easy a prey as you are assuming.

  • ||

    Once separated from the Borg hive mind he'll just get insecure and weepy and then we strike. He was a stupid character anyway. Didn't he join Lore's band of rogue Borg? Fucking idiot.

  • Gojira||

    I think he caused it. When he went back to the collective, he fucked their shit up, and that's how Lore found them - frightened and confused by their newfound individuality. So he was able to take over.

    So non-collective organization = fail.

  • ||

    So basically, Hugh was the original Goth Borg. Nice one, Hugh, you tool.

  • Hugh Akston||

    Being a Borg was so conformist. Now I'm a total non-comformist, just like all the other rogue Borg. We all wear black and metal implants, and do whatever Lore tells us, not like those Justin and Britney Borg in the Collective. What a bunch of sellouts.

  • ||

    Well, thanks for offering to let me in your clique, Hugh, but, to be honest, I'd rather be a crying little pussy J'naii than a faggy Goth Borg.

  • Gojira||

    On the upside, they got bitchin guns on their hands finally. Which is much cooler than the...well, no guns that they had before.

  • BakedPenguin||

    I promise I only eat immature orphans. Must keep down the surplus population, after all.

  • Killazontherun||

    They are sure delicious, esp. if you wrap them in baby seal blubber before you put them in the Dutch oven.

  • Jumbie||

    In a capitalist world everyone will be able to bake penguins. In a leftist world on the privileged will be able to afford them.

  • The Pointer-Outer||

    Mostly Team Blue politicians, you mean?

  • ||

    "I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; if I find them too obnoxious, I break them. I am free because I know that I alone am morally responsible for everything I do."

  • BakedPenguin||

    The left really wants hate speech laws.

    Because they really hate speech.

  • ||

    Fuck the draft!

  • the realist||

    Fuck Communism.

  • Hugh Akston||

    Fucking magnets.

  • ||

    Well, it turns out Citizens United doesn't matter much anyway, because shareholders of corp.'s will not let their companies write big checks to candidates/campaigns. The reasoning behind this is that no candidate will line up perfectly with a corporation's interests, at least not if they care about public image at all. In fact, this has already happened at several corp.'s.

  • cynical||

    Don't think for a second that's what this is about -- the people that believe that are ideological cannon fodder. The heart and soul of the anti-CU movement are old media, that alone among corporations enjoyed special privilege in political messaging. It isn't business corporations, but activist groups like CU, that pose the threat to their control of the dialogue, as talk radio and Fox News did earlier.

  • ||

    Um, yes, it does matter. Non-profits are corporations. Pretty much all print and TV media is a corporate product. The New York Times is printed by a corporation. The Rush Limbaugh Show is syndicated by a corporation. That "Stop Piracy, not liberty" petition? That was put together by Google--also a corporation. Planned Parenthood? That's a corporation. Odds are pretty good the nearest church is a corporation, too (either the congregation or the denomination is very likely incorporated). If CU had gone the way the left short-sightedly and foolishly wanted, Congress would have been granted *enormously* broad censorship powers. In effect, they'd be able to censor any publication or broadcast that wasn't produced by a sole proprietorship or partnership. The left, being total idiots, imagined this power would only be used to censor Fox News and put the Koch brothers in prison.

  • Average Liberal||

    I generally form my opinions based on Jon Stewart, Stephen Colbert and the occasional documentary/book.

  • Killazontherun||

    How you guys tolerate those snippy leftist yapping on screen I don't get. Michael Moore can be funny in rare moments, but the guy who hates McDonald's that dude is a brain tumor.

  • Justice Chase||

    But he discovered that eating nothing but McDonalds is unhealthy!

  • D Roberts||

    You've been fed a load of bologna.


  • cynical||

    "How you guys tolerate those snippy leftist yapping on screen I don't get."

    As long as Stewart sticks to covering how useless the cable news networks are, he's fine. And to be fair, he's covered the Paul blackout, and ran the segment on the totally irony-impervious civility peddler who called Tea Partiers terrorists, and the labor union that tried to prevent its hired picketers from unionizing.

  • ||

    E.J. Dionne Jr. (whose "screed against free speech" Ron Bailey noted on Monday) claims Citizens United "tore down a century's worth of law aimed at reducing the amount of corruption in our electoral system." One of the statutory provisions the Court overturned, McCain-Feingold's ban on "electioneering communications," was enacted in 2002, while the other, the ban on "express advocacy" by unions and corporations, has its roots in a 1947 law—still 37 years shy of a century before Citizens United.

    That 100 year rule just baffles 'em at the WaPo, don't it?

  • ||

    They can only count in multiples of how many fingers they have.

  • Michael B Sullivan||

    Tangential to Abrams article: christ, if I hear one more person rail against corporate personhood without using some phrase equivalent to "limitation of liability," and some plausible argument for how the economic system will function without limitation of liability, I will punch someone. It's like a whole generation of people believe that the doctrine of corporate personhood was created in 2010.

    On point to the Abrams article: my understanding of how Citizens United allows non-disclosed donations is by a two-step process. Someone forms a corporation. The corporation donates to a super PAC. The super PAC puts out an ad. The ad discloses that it was created by the super PAC. The super PAC's donation list includes the corporate donor. And there the trail ends: you can't trace the opinion to an actual person.

    That seems like a legitimate, if perhaps not world-shattering, point. Though, you know, unsigned editorials in newspapers have roughly the same level of obscurity.

  • anon||


  • Michael B Sullivan||

    Fair enough. The teal deer version:

    1. "Corporate Personhood" means that if you have Chrysler stock, and Chrysler goes bankrupt, they don't get to raid your bank account to pay Chrysler's debt.

    2. I think Citizens United really does allow people to hide their donations, in a round about way.

  • ||

    Because publishing the names and addresses of people who spend money on producing political speech would never be used for intimidation purposes.

  • Union Bosses||

    We ain't seen nothin'.

  • A Secret Band of Robbers||

    Hey Fearsome.

  • Mr. FIFY||


    This current mess started when a group of citizens made a movie critical of presidential candidate, Hillary Clinton.

  • Buddy Bizarre||

    I still have a copy of a show transcript from 2004 when Dan Abrams had his own show where he denigrated people who believed the 2nd Amendment conferred an individual right to own arms. He referred back to a paper he wrote for “Yale Law and Policy Review” (elitist).

  • ||

    I'm still waiting to read anywhere - right or left - that Citizen's United was supported in an amicus brief from those plutocrats at .. the ACLU.

  • BakedPenguin||

    How about their website?

  • mad libertarian guy||

    Leftists have acknowledged it, and draw it up to "I can forgive them this one mistake with all the other good stuff they do and all, but they're dead wrong with CU."

  • Jumbie||

    As something of an expert on the subject, I have to say Dan Abrams looks like a prototypical gay porn actor.

  • ||

    Employees of media corporations are exempt from campaign laws. I would appreciate if broadcast talking heads and print journalists would explain why their audiences should not enjoy the same exemption?

    Before insisting on more people muzzling campaign laws watch these videos

    From 1791 to 1886 1st Amendment freedoms of speech, press and assembly were the sole rights of flesh and blood citizens.

    From 1886 to 1973 flesh and blood citizens and media corporations enjoyed equal freedoms of speech and the press.

    When I was young you did not have to ask anyone permission to participate in politics. You could pool your money with others who shared your views without donation limits or reporting requirements. It was understood that freedom of speech, press and assembly were the rights of flesh and blood citizens. Newspapers enjoyed the right to print and broadcasters the right to speak because they employed people. But people did not have to own newspapers, TV Stations or radio stations to print or speak.

    Then, prior to President Nixon’s second term, some of our nation’s largest newspapers found themselves in federal court loosing antitrust suits which accused them of purchasing financially troubled regional newspapers and then pretending to compete with them while rigging prices.

    The Newspaper Preservation Act was working its way through congress and was designed to grant antitrust relief to the affected newspapers. Richard Nixon and his, Attorney General, were on record as strongly opposed to the passage of the Newspaper Preservation Act.

    A newspaper executive wrote a letter to President Nixon as his re-election approached. The letter reminded President Nixon that the nation’s largest Newspaper chains published in those states that had the largest number of electoral votes. The carefully worded letter reminded President Nixon that it could be difficult to be re-elected without their editorial support.

    President Nixon reversed his position and used his political skills to convince Congress to pass the Newspaper Preservation Act.

    Following Watergate and reports of serious financial abuses in the 1972 Presidential campaign, Congress amended the FECA in 1974 to set limits on contributions by individuals, political parties and PACs. The purpose of the new campaign laws was to protect the public from the appearance of corruption.

    The newly minted campaign laws should have reprimanded the 4th estate as well as Nixon. Instead the Federal Election Campaign Reform Act exempted corporate media from campaign laws and created the “State Approved Press”. -
    See: The Newspaper Preservation Act on Wikipedia.

    From 1974 to present only the commercial media enjoy unrestricted freedom of speech and the press.

    2 USC 431 (9) (B) (i) The term "expenditure" does not include any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate;

    But what is the difference between slanted news stories or editorial opinions and political ads? "Section 431(9)(B)(i) makes a distinction where there is no real difference: the media is extremely powerful by any measure, a "special interest" by any definition, and heavily engaged in the "issue advocacy" and "independent expenditure" realms of political persuasion that most editorial boards find so objectionable when anyone other than a media outlet engages in it.

    Media corporations have denied Buddy Roemer a podium at the GOP Presidential debates despite the fact he is for campaign reforms. The media hypocritically judge the viability of a candidate by how much money he is able to raise while decrying the evil of money in politics, most of which flows to them to purchase campaign ads!

    Distributing political ads to the masses is the biggest expense of political campaigns. If the media were to carry political ads, as a public service, it would greatly reduce the need for money in politics.

    There are multiple proposed Amendments to the constitution to end corporate personhood and keep money out of politics. But that is only necessary because the 1st Amendment is not a loophole in campaign laws. Campaign laws are corruption of the 1st Amendment.

    Amendment 1
    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.

    The National Rifle Association purchased a radio station to get around existing campaign laws. Should citizens and citizens groups have to buy a radio station to enjoy freedom of speech or a newspaper to enjoy freedom of the press?

    To restore equal protection under law the press exemption must be extended to citizens and citizens groups! People don’t lose their rights when they associate in groups, whether it’s a corporation, a labor union, a nonprofit organization or even a newspaper. Until campaign laws apply equally to all, we the people are the 99% and media princes, like Colbert, are the 1%.

    And if the corporate media won’t defend natural people’s 1st Amendment rights they may lose their own:

    Newspapers Have No First Amendment Exemption from Political Spending Reporting Requirements

    Eugene Volokh • September 8, 2011 5:46 pm

    Because of this, it generally hasn’t been clear whether the media exemption was constitutionally mandated — whether a legislature could, if it wanted to, regulate newspapers’ expenditures related to political campaigns the same way it regulated other expenditures. But Olson v. City of Golden (D. Colo. Sept. 1, 2011) held that such an exemption is not constitutionally mandated.

  • ||

    I will never understand how that all went down.



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