Supreme Court

Today in History: SCOTUS Protects the Corporate Speech Rights of The New York Times

Marking the 54th anniversary of New York Times Co. v. Sullivan

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Library of Congress

Do corporations have First Amendment rights? Many modern progressives think not. Former New York Times editorial board member Adam Cohen, for example, has argued that corporate speech does not deserve First Amendment protection because "the Constitution never mentions corporations or their right to speak."

Fortunately for Cohen and his old colleagues at the New York Times Company, the U.S. Supreme Court reached a different conclusion. And no, I'm not talking about Citizens United.

Fifty-four years ago today, the Supreme Court issued its landmark First Amendment ruling in New York Times Co. v. Sullivan. At issue was a libel complaint filed by Montgomery, Alabama, City Commissioner L.B. Sullivan against the New York Times Company because the Times had run a full-page advertisement that charged Montgomery police with violating the rights of civil rights activists.

The Alabama courts sided with Sullivan, awarding him $500,000 in damages for the alleged libel he suffered in his capacity as the city's supervisor of police. But the Supreme Court reversed that outcome. "The rule of law applied by the Alabama courts," the Supreme Court held, "is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct."

According to the Court, the First Amendment "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." To hold otherwise, the ruling said, would be to allow a "pall of fear and timidity [to be] imposed upon those who would give voice to public criticism" of public officials, an outcome that the Court described as "an atmosphere in which the First Amendment freedoms cannot survive."

Which brings us back to former Times-man Adam Cohen. If Cohen is correct about the Constitution offering no safeguards for corporate speech, then the corporate New York Times Company should have never won this case. Thankfully for the freedom of the press, Cohen's argument remains a losing one.

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  1. Do corporations have First Amendment rights? Many modern progressives think not. Former New York Times editorial board member Adam Cohen, for example, has argued that corporate speech does not deserve First Amendment protection because “the Constitution never mentions corporations or their right to speak.”

    Literally Communism. If corporations don’t have speech rights because they aren’t persons, then they don’t have property rights for the same reason. The govt is now free to strip them of all assets w/o compensation. Yes, you can keep your Exxon stock, but it is now worthless.

    Squelching speech is just a nice side effect.

    1. Corporations can have property rights and still not have unlimited free speech rights protections like actual people do.

      Same legal logic why people have a right to vote but corporations don’t have that right.

      I am not saying that business should be under the boot of government for every little thing but there is a different in who rights the government should protect more- persons or business.

      The Constitution clearly allows regulation of commerce across state lines. Its up to the people to keep lefties from turning government’s wrath against companies and performing socialist Ti Kwon Slow on them.

      1. They are recognized as having property rights, but the argument about speech applies to take those away too.

        1. Let’s not forget that the stringent “actual malice” standard announced in Sullivan only applies in civil lawsuits; prosecutors in criminal cases (whether or not they are brought under statutes that specifically criminalize “libel” or something else) only need to show some evidence of an intent to “damage a reputation,” and the burden falls on the defendant to prove beyond a reasonable doubt that he did not intend to “damage a reputation.” See the documentation of America’s leading criminal “satire” case at:

          https://raphaelgolbtrial.wordpress.com/

      2. The Constitution also allows regulation of commerce within state lines.

        The states after all can regulate & the Commerce Clause isn’t the only way the feds regulate commerce.

        I gather people should stop all people, including “righties,” from supporting bad business policies.

        1. Free trade with business is the best but even the constitution allows for regulating business among several states. The key is to keep regulation at a minimum to allow business to thrive.

      3. LC, Congress’ power to regulate inter-state commerce applies to commerce among the states, foreign nations, and Indian tribes. The commerce clause does not contain any express language authorizing Congress to regulate commerce conducted by and between individuals and other individuals or partnerships or other voluntary associations.

        Remember, only bolzhevik, communist, fascist, progressive, socialist, and totalitarian types would argue that the power to regulate commerce by and between individuals and voluntary associations is implied. That is Hamiltonian agitprop.

        1. Intrastate commerce authority is not implied nor mentioned.

          Interstate commerce authority is.

          1. Those are the same.

            /s

        2. I also probably need to add that the Founders were well aware that business (commerce) could be between individuals, sole proprietorships, partnerships, companies, and corporations.

          The constitution does not differentiate between what type of commerce.

          Just like the 2nd Amendment does not differentiate between what arms are protected. All arms are protected.

          1. LC, you are conflating powers and rights. The former are to be construed as narrowly as possible whereas the latter are to be construed as expansively as possible.

          2. Founders were aware of various business types and they regulated them differently in various respects. Corporate charters also were more restrictive back then (and much fewer in number) than today. Fwiw.

            “Speech” is protected too but that still meant various restrictions including total restrictions in certain cases of certain types of speech. This doesn’t get us that far.

      4. “Corporations can have property rights and still not have unlimited free speech rights protections like actual people do.”

        And what do you think corporations are made up of, robot overlords? “Actual people” have the freedom to peaceably assemble; when they “assemble” themselves into a corporation, they do not cease to be people, nor do they lose their First Amendment rights.

    2. And they can’t be taxed like people, either.

      1. Or sued. One argument I like to use on people who freak out about corporate personhood is that without it, you couldn’t sue a company that wronged you. You would have to find the individuals responsible and hope that they have enough money to cover the damages.

        1. That is an excellent point Zeb.

        2. In a fashion, the same applies to denying rights to blacks, including the right to testify in lawsuits.

          But, people tend to be inexact in what they are really concerned about here & the same applies to many who comment on this blog. They are using “personhood” in a somewhat nuanced way.

  2. Such a stupid question. Whether or not *corporations* themselves have free speech rights, *people* do, whether they own, represent, or work for corporations. Declare corporations have no free speech rights and the people who own, represent, or work for them still do.

    One of my pet fantasies is that anyone can sue to void a law if they can show it is not consistently enforced. You could not enforce a law against corporate freedom of speech, so why even bother thinking of enacting one?

  3. There is no such thing as “corporate speech”, there is only speech by individuals, and some of that speech comes from groups of individuals who pool their resources and agree to specific messages.

    1. Perhaps that’s one of the truest divides libertarians have conceptually from many others. Because it does seem that many people believe that groups have identity and meaningful existence outside of their composite members.

      Some believe that the whole is somehow distinct from its parts, and others believe that it is nothing but its parts. We are damned mereological nihilists.

      1. I think that’s pretty true. Libertarian ethics is all about how individuals interact and behave. That doesn’t mean you can’t also acknowledge that groups can have real significance and identity. You just need to remember that individuals are still the fundamental moral unit.

        1. And the only real moral agents.

  4. “If Cohen is correct about the Constitution offering no safeguards for corporate speech”

    The op-ed has a badly written sentence that easily can be clarified or maybe even removed & it would work about as well. Cohen isn’t subject to a “gotcha” all the same merely by bringing up the New York Times. The First Amendment speaks about “the press” [and I’m aware of Eugene Volokh’s position on this matter] and the NYT would be protected under that … or that is a likely thing he would say.

    Cohen, if pressed, would not frame things as broadly as that statement. So, e.g., if a law made an exception for corporate speech if Muslims were involved or whatnot, “safeguards” would be in place. It is fair to note that free speech applies to corporations generally too. The real question is HOW. So, e.g., for profit business corporations traditionally had certain regulations involving speech or otherwise not in place for others in certain cases. Not just corporations though an amendment that speaks of “the people” very well might make that notable as compared to a right of “persons.”

    1. The “press” is the instrumentality of mass media. It is not a class that has enhanced rights over other people or organizations. Citizens United was not a for profit corporation, so it did not fall into that distinction in any case.

      1. There are a range of laws and regulations in place, including by the Supreme Court itself, that specifically gives special rights to the “press” itself. This is not limited to “mass media.” Anyway, the reference was basically to say that the op-ed writer would cite that argument to show “the press,” not “corporations” would be protected here.

        I have read that Citizens United itself was left somewhat unsatisfied by the “win” in that case. Plus, many critics wouldn’t have minded if they actually had a limited win. Their concern is often other types of regulations of corporations. So, you know, duly noted, but the point holds.

        1. It is a specious argument. Does it really make sense that press freedom is limited by the constitution to a profession that had no formal definition at the time the 1st amendment was written?

  5. Some day I’d really like to meet the ultra-powerful Corporation dynasty. The family is so demonized these days!

  6. But the NYT means *evil* corporations, like Exxon and Monsanto and Fox Broadcasting, not *good* corporations like themselves.

  7. The NYT is a multi-billion dollar corporation that endorses political candidates and puts out daily opinions and editorials commenting on political matters. Why are news corporations different from any different from any other corporation?

    1. Then there’s Fox, which is both media and news corporations rolled into one. How do they resolve that conflict?

  8. Judge orders electric shocks for uncooperative defendant

    “That’s it! 30 days for contempt! Wait, no. Cancel that order. Bailiff, bring me my jumper cables.”

    1. “The court ruled that state District Judge George Gallagher of Tarrant County violated Morris’ civil rights when he ordered a bailiff, on three occasions, to shock Morris as punishment for not giving proper answers to Gallagher’s questions.”

      That trial judge should be imprisoned for torture and violating the constitution.

      The Defendant has a 5th Amendment right to remain silent. Then there is the whole cruel and unusual punishment violation of the 8th Amendment for not answering said questions.

      1. Agreed. This is worrisome.

        1. I get that a defendant who will refuses to appear for trial but demands a speedy trial holds up the entire process. In the USA, you cannot try someone in absentia, so how do you get a defendant who refuses to cooperate with the process through a trial?

          Courts typically hold that if a defendant demands a speedy trial but refuses to participate in that trial, they speedy trial right is voluntarily waived.

          1. Skpe the trial to wherever the defendent decides to sandbag.

  9. “Congress shall make no law … abridging the freedom of speech, or of the press”

    There you go. No mention of corporations, so corporations don’t get free speech.

    As a matter of fact, it doesn’t mention people, either, so STFU NYT.

    Anyway, did I mention how horrible Trump is on freedom of the press? Sad.

    1. I’m surprised it took so long for someone to bring that up. Free speech and press applies to everyone and everything. People, companies, talking birds, aliens from outer space, Russian trolls, all have the same free speech rights anywhere subject to US law. There are no exceptions to “congress shall make no law” in the 1st amendment.

      1. Well, there are the commonsense regulations that are necessary to keep us safe.
        Just like the second amendment.

    2. Ha!, right.

      Technically, people don’t have a first amendment right. However, the first is a restriction on government actions, not a right of the people, per se.

    3. I read an argument that gets around this. You have an incomplete definition of “free speech”. It does not include hate speech because the founders would not have recognized one as a subset of the other. Same for corporate speech — it would not be recognized as a subset of free speech.

      See how simple that is?

      1. Yeah, and the the phrase “free speech” isn’t in there either. It’s the freedom of speech.

        So, is the argument now “hate speech isn’t speech”?

        It just makes sense… if you’re retarded.

  10. Fortunately for Cohen and his old colleagues at the New York Times Company, the U.S. Supreme Court reached a different conclusion.

    Meh. At one time The New York Times defended itself with Gatling guns. The Gray Lady is about different things today.

  11. “”the Constitution never mentions corporations or their right to speak.””

    It doesn’t have to. It mentions people and the right of people to speak. Corporations are just people in groups. If people have the right to speak then groups of people have the right to speak, regardless of the organizational structure of the group.

    Corporations as legal entities is indeed fictitious, but the people who comprise a corporation are not. They are real people. The actual buildings of a corporation do not have a right to speak. They are buildings. Duh. But the organization is itself a group of people and the individuals in that group have the right to speak either individually or collectively.

    I mean, duh.

    1. The actual buildings of a corporation do not have a right to speak.

      Are you sure they don’t have the right but lack the ability?

      Of course, you are right. People don’t lose the right to speak or publish because they are doing so on behalf of a group of people organized as a corporation.

    2. “”It doesn’t have to. It mentions people and the right of people to speak””

      No, it does not. It does mention people’s right to assemble, and to petition the government for redress. With respect to speech, it’s a restriction on government actions.

      “”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 peaceably to assemble, and to petition the Government for a redress of grievances.””

  12. Half a century of history proves that this case was wrongly decided. The media has since abused the actual malice standard to spread lies and gossip.

    1. “Since”? That implies the media never lied before this specific case, which is absolutely untrue.

      1. No. It implies no such thing. Work on your reading comprehension.

  13. What is this, weak sauce week?

    It’s a freakin newspaper. Those are mentioned in the constitution.

    Originalists my ass.

    1. So, you think that “the press” means specifically newspapers? Not book publishers or pamphleteers or any more technologically advanced platforms for mass communication?

      1. Absolutely!
        The first amendment only covers actual human speech, made without amplification or any technical means of extending the range of a single human voice. Likewise it only applies to those things published on a ‘press’ of the times, using hand set type, and hand applied pressure to transfer the ink. No web or internet protections are implied or intended. This is just like the second amendment applying only to muskets; obvious.

        1. I know this is sarcastic, but even if it were true, there would still be the 9th Amendment and the question of whether there’s a more general right of free expression.

          1. You know the 9th Amendment is one of those ink blots. Pay it no mind!

      2. Reading newspapers as “the press” is much more plausible than reading corporations as people.

        1. It is plausible to assert that it is absurd to say corporations have rights…unless the corporation owns a newspaper.

          How does that work?

        2. You’re too stupid to realize that the word “people” doesn’t occur in the first amendment text, either.

          1. Really, it is quite the ridiculous question begging, trying desperately to pretend it isn’t:

            “Corporations don’t have a right to free speech. Only people do. It says so right in the first amendment! What does it say? It says people have the right to free speech, not corporations. And corporations aren’t people. So corporations don’t have the right to free speech. Because the first amendment gives people the right to free speech, not corporations! Why? Because the first amendment gives people the right to free speech, not corporations!”

            No: the first amendment says that congress can make…no…law…abridging the freedom of speech. It doesn’t say anything about “people” or “just people”. It talks about “congress” and “abridging the freedom of speech.”

            I’m sorry, but you really just can’t repeal the highest law in the land just by repeating mantras over and over again. I would think someone would appeal to democracy for that, or something. But, fuck that, let’s do tyranny because whatevs.

        3. Tony, I’m not sure that you know you are really stupid.

    2. Freedom to use a press is laid out in the constitution. Newspapers are not mentioned.

        1. That is the stunned wit we have come to expect from you.

  14. So all we need is a judge to agree that not confirming sources, and not using multiple, verifiable, reliable, sources is actual malice, and all is well.

  15. “Do corporations have First Amendment rights? Many modern progressives think not… [T]he U.S. Supreme Court reached a different conclusion. And no, I’m not talking about Citizens United.”

    Oh, but I so want to eat my cake; why can’t I have it too?

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