Last week Matt Welch and Jesse Walker noted the egregious New York Times editorial condemning the Supreme Court's decision in Citizens United v. FEC. The Times did not merely disagree with the Court's analysis; it asserted that the five justices in the majority did not really believe their own arguments. Rather, "the court's conservative majority," while "disingenuously waving the flag of the First Amendment," had "distorted the political system to ensure that Republican candidates will be at an enormous advantage in future elections." The Washington Post used similar language, saying the justices had seized on the case before them as a "pretext" to overturn a precedent they disliked "under the false flag of free speech." Both papers also predictably charged the majority with forsaking judicial restraint and stare decisis, as if those principles require the Court to uphold blatantly unconstitutional laws and stubbornly stick to bad precedents, no matter how much damage they cause. But if anyone has let his prejudices trump his principles, the editorialists at the nation's leading papers have, along with other journalistic proponents of protecting democracy from freedom of speech.
Jesse Walker alluded to the inconsistency between believing that you deserve full First Amendment protection, even though your work is sponsored by a big corporation, while less-credentialed speakers must risk fines or jail when they dare to express their views, simply because their corporation is not officially recognized as part of the media. Here's another striking example of cognitive dissonance at the Times: The day before the Times argued that Americans organized as corporations are not protected by the First Amendment, it condemned the Federal Communications Commission's rules against broadcast "indecency":
The F.C.C.'s indecency policy is hopelessly vague….The same epithet that the commission regards as indecent when Cher says it on an awards show may not be considered indecent when showing the movie "Saving Private Ryan." Broadcasters have no way of knowing in advance what sort of content will upset the F.C.C.'s indecency police — and possibly subject them to enormous financial penalties. When the government punishes speech with vague rules, it has a chilling effect on expression of all kinds. Speakers, unclear on where the lines are, and fearing sanctions, have a strong incentive to avoid engaging in speech that is legally protected.
I happen to agree with the Times about the FCC's regulations. But how can the same news organization that sees a First Amendment problem with fining Fox (like the Times, owned by a corporation!) for airing celebrities' expletives during music award shows not see a First Amendment problem with fining or imprisoning political activists for distributing a documentary because it makes a politician look bad too close to an election? How can it understand the chilling effect caused by the FCC's vague regulations but not understand the chilling effect caused by the FEC's vague regulations? As hard as it may be to predict when a stray shit or fuck can land you in legal trouble, it was at least as hard to predict when a political message would be deemed a forbidden "electioneering communication." And you don't have to be Robert Bork to suggest that a political documentary is closer than Cher's cursing to the center of what the First Amendment was supposed to protect.