The partisan positions on today's Supreme Court ruling, which overturns the ban
on campaign donations by corporations, are fairly straightforward.
Conservatives praise it as finally honoring the free speech rights of
corporations. Liberals decry it as an abuse of free speech protections
and a capitulation of the political system to the highest bidder.
Debate today is passionate but mostly rehashes these decades-old
Enter conservative legal blogger Eugene Volokh, who explores a fascinating strain of the debate and of the Court's decision: the legal rights of corporate media. Vololk bypasses the typical debate to defend the Court's decision on the ground of a free press. Most media are run by corporations, Vololk points out (his humble blog excepted). Hence, the restrictions against corporate speech applied to media companies as well. After all, if the Coca-Cola Corporation can't exert political influence by donating to candidates, why can the New York Times exert political influence by endorsing candidates? Volokh notes that liberal Justice John Paul Stevens, who wrote a dissenting opinion, attempted to preempt this argument by noting that the Constitution singled out freedom of the press. The freedom of the press clause, Stevens wrote, excludes media companies from the usual restrictions against corporations. Volokh counters:
This would simply suggest that the Free Press Clause of the First Amendment would allow restrictions on media corporations just as the Free Speech Clause of the First Amendment would allow restrictions on other corporations.Volokh continues at length, going into great detail on relevant Constitutional interpretation from the framing through today. He concludes, "And thus if ordinary business corporations lack First Amendment rights, so do those business corporations that we call media corporations." As a justification for today's ruling, Volokh's argument does leave a bit to be desired. After all, the Court primarily argued that corporate money qualifies for free speech protections, not that the struck-down law endangered the free press. But he brilliantly penetrates and complicates the liberal arguments that corporations shouldn't have been granted such broad free speech rights. Especially liberal arguments coming from corporate-owned media, which is almost all of it.
Nor is it enough to say that 'the press' gets special protection under the First Amendment. The question still remains who qualifies as “the press” for full constitutional protection. If the argument is that the speech of corporations doesn’t fully qualify as part of “the freedom of speech,” because it comes from corporations, why should the use of the press by corporations fully qualify as part of “the freedom ... of the press”?
But beyond this, Justice Stevens simply seems to assume that “the press” refers to an industry — consider Justice Stevens’ reference to “one type of corporation, those that are part of the press” — rather than a technology. Why should we believe that this is so?After all, the presses in the Framing era were used not just by professional newspaper publishers. They were used by book authors, by pamphleteers, and by leafleters, for whom public commentary was a sideline to their normal lines of business. They were used by politicians who wrote articles for newspapers.