Three thoughts on Citizens United and the mainstream media:
1. The decision better secures the liberty of the mainstream media. Most mainstream media is organized as corporations, and as the Court pointed out the argument for lesser protection for corporate speech would equally apply to speech by media corporations. So far, Congress has exempted the media from bans on corporate advocacy for or against candidates; but now it’s clear that the media corporations (alongside other corporations) are constitutionally entitled to so editorialize.
2. The decision diminishes the relative power of the mainstream media. Until now, media corporations and some ideological advocacy corporations were the only groups that had a truly free hand in editorializing for or against candidates. Now business corporations and unions will also have this freedom, and the relative importance of the media’s views will diminish.
3. But the decision will likely increase the income of the mainstream media, especially broadcasters: Now that unions and business corporations are free to speak for and against candidates, presumably many of them will do so, often by buying advertising. And who’ll sell them the time or space for the advertising? Mostly broadcasters, though perhaps some newspapers and magazines as well.
And, hey — though I suppose this requires a conflict-of-interest disclaimer — maybe some of the corporate and union money will go to blogs, too!
AF says:
Most mainstream media is organized as corporations, and as the Court pointed out the argument for lesser protection for corporate speech would equally apply to speech by media corporations. So far, Congress has exempted the media from bans on corporate advocacy for or against candidates; but now it’s clear that the media corporations (alongside other corporations) are constitutionally entitled to so editorialize.
I don’t think this is right. The right to editorialize is in no tension with the corporate speech precedents, nor would the First Amendment rights of editorial boards be indistinguishable from those of corporations but for the grace of Congress. The First Amendment mentions the freedom of the press. That pretty clearly protects editorializing.
January 21, 2010, 6:10 pmHarryEagar says:
I am reading all these posts to try to see if my instinctive reaction — if corporations are people, can they marry, and if so, what does that do to Clayton and Sherman? — is just nuts.
However, on this one point of Professor Volokh’s, may I offer a reality check? Dearborn Independent.
This was a newspaper owned by the biggest tycoon of them all and operated without any semblance of journalistic integrity. Furthermore, its distribution system was outside normal channels used by real journalists (Ford required his dealers to give it free in their showrooms).
But its influence on elections was, if not negligible, not provably important. Perhaps because it was a vile, Jew-hating rag, I dunno.
January 21, 2010, 6:27 pmHappyFederalist says:
HarryEager:
I think your concern about corporate marriage is fairly easily dealt with. Corporations are not people and do not have any First Amendment rights. They are a form of association through which individuals exercise their First Amendment rights of association and speech.
January 21, 2010, 6:36 pmzuch says:
Prof. Volokh:
“… we’ve already determined that; we’re just haggling about the price….” ;-)
Cheers,
January 21, 2010, 6:40 pmArkady says:
Likely? As likely as the sun’s rising tomorrow.
January 21, 2010, 6:41 pmOff Kilter says:
Harry E: “if corporations are people, can they marry, and if so, what does that do to Clayton and Sherman?”
I’m familiar with Clayton–he posts here all the time–but who is Sherman, and what does SSM have to do with this ruling? :->
January 21, 2010, 6:47 pmDilan Esper says:
I think 2 is wrong– corporations, unions, rich people, and highly organized advocacy groups have had extremely outsized influence in politics and will continue to do so; meanwhile, the mainstream media’s influence has always been somewhat overstated and is totally overstated now (given it’s decline in power and the diffusion and compartmentalizing of political discourse).
But 1 and 3 are totally right.
January 21, 2010, 7:14 pmBenP says:
And this post by Dave Kopel was brought to you by Remington Arms Incorporated.
January 21, 2010, 7:16 pmERH says:
Didn’t Kennedy write the opinion in Caperton v. A.T. Massey Coal, et al.? Now he goes and writes an opinion that ensures we’ll have lot more Capertons. What a country!
January 21, 2010, 7:57 pmTweets that mention The Volokh Conspiracy » Blog Archive » Citizens United and the Mainstream Media -- Topsy.com says:
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January 21, 2010, 8:04 pmlgm says:
There was a thread the other day about the confirmation process for Supreme Court justices. The process practically requires nominees to lie about their beliefs. In particular, Alito and Robers promised to be deferential to Congress and precedent. Nobody familiar with their histories believed that. They never would have been nominated if the President had believed that.
Now it’s clear that they are modest in overturning Republican bills and enthusiastic when overturning Democratic bills.
More than that, they’ve reversed the Warren court breakthrough that calls for bending the rules (not breaking them) to get the obviously correct outcome. As abstract logic, there is a case to be made against Griswold. But the Griswold decision gives the obviously desired outcome. Clearly a company is not a person. Saying so obviously is a mistake. Clearly unlimited corporate participation in politics is undesirable.
Clearly, the hope is that the next time the a new justice joins, this will be overturned.
January 21, 2010, 8:05 pmMichelle Dulak Thomson says:
(OT) Y’know, to judge by my reading here and in other (poli/law) blog comment sections in the last week, the distinction between “it’s” and “its” is dead as a doornail, at least by descriptivist criteria. Can changes in law review style sheets. the AP Stylebook, Chicago, &c. be far behind?
January 21, 2010, 8:18 pmIlya Somin says:
I am reading all these posts to try to see if my instinctive reaction — if corporations are people, can they marry, and if so, what does that do to Clayton and Sherman? — is just nuts.
Our argument is not that corporations are people. It’s that people organized as corporations can use corporations to exercise their rights, including free speech rights. If corporations were a useful tool for exercising the right to marry, that would be constitutionally protected too.
January 21, 2010, 8:42 pmgeokstr says:
Duh-uh. Wasn’t one of those bills that was overturned called McCain-Feingold?
But thanks for finally being honest enough to admit that the guy the leftwing media picked to run for the Republican Party in 2008 really was just another Democrat. Which is why the entire conservative base of the R’s, those that weren’t disgusted enough to sit that one out anyway, had to hold their noses to pull the lever for McCain.
January 21, 2010, 8:42 pmShelbyC says:
Punishing corporations for speech is like creating the fiction that a car is a legal entity, and, since cars don’t have speech rights, you make it illegal for the car to drive to a political rally. And if the car disobeys, you punish it by crushing it. Nobody’s first amendment rights violated, right?
January 21, 2010, 8:55 pmCato The Elder says:
One palpably blushes when one reads the NYT’s unashamedly biased political reporting, but apparently some people here feel that the billionaire Ochs-Sulzberger family should be allowed more of a voice than NRA constituents — why?
January 21, 2010, 9:02 pmSkyler says:
I think this will help break down the artificial distinction between media corporations and other corporations. In the age of the internet it becomes less useful to make that distinction.
January 21, 2010, 9:09 pmCato The Elder says:
OK, so the NYT’s apparently changed the lede of their story reporting on Citizens United already, but if you had read it went something like “Brushing aside a century of legal precedents, a bitterly divided Supreme Court overruled…” Perfectly above-board editorializing, right? And yesterday discussing Brown’s victory you could easily discern them cheerleading the Dems to “buck up” and pass the bill in defiance of the political tea leaves within that article. It’s annoying to me that journalists have this sanctimonious attitude that the guidance and manipulation they offer is somehow different from what corporations might be able to force. It’s weird that that they see themselves working as some sort of “defenders of the public trust” but the truth is they’re working for The Man just like everybody else.
January 21, 2010, 9:20 pmSecurityGeek says:
Prof. Volokh, I would like to respond to something you said on the New York Times’ debate page:
I agree that if local voters knew that Exxon Mobile was spending $10M to destroy a local congressional candidate due to his backing of a carbon tax it could very well backfire. I think you are (perhaps intentionally) being naive when you imply that the voters would *know* that Exxon was behind the ads. Doesn’t this ruling destroy not only the limits on corporate political advertising, but the system that enforced transparency on such ads? Without the PAC system, what keeps Exxon from using years of experience with tax avoidance techniques and forming “Citizens for the Oxidation of Hydrocarbons, Inc.”, which turns out to be owned by dozens of overseas shell companies and foreign subsidiaries. Unraveling layers of legal trusts, Swiss bank accounts and foreign stock records could take years, and would likely be impossible without professional forensic accountants and the subpoena power of folks like the IRS and SEC.
Maybe I’m wrong, but I find the prospect of hundreds of temporary corporations sprouting up to influence our elections, a dozen of which might be owned by the Saudi Royal Family or China’s Sovereign Wealth Fund, incredibly frightening.
January 21, 2010, 9:23 pmErica says:
The opinion in this case shows, once again, that in this country, money talks. Hence, free speech for money.
All the academic sophistry for or against the decision overlooks what the common man knows – that despite the opinion’s seeming equalization of corporations, labor unions, other associations and individuals, some corporate wealth is simply unmatchable. My guess is that the UAW doesn’t have nearly as much to spend as Exxon-Mobil. We need something to level the playing field.
January 21, 2010, 10:10 pmFub says:
Established print and broadcast media have another powerful speech right, a negative right that is often overlooked: they can turn down paid advertising for any reason.
This is not a matter of a political advertiser unable to afford some ad rate. This is a matter of broadcasters or publishers refusing to run paid ads on one side of a public issue.
47 CFR § 73.1941 or thereabouts requires commercial broadcasters to offer equal time and rates to candidates for public office. (Note that this is not the fairness doctrine.) But there is no corresponding rule for issue ads or ads advocating for or against initiative ballot measures.
So even regulated broadcast licensees have considerable ability to sway many election outcomes by refusing certain ads. When most of them are on the same side of a political issue, they can effectively silence the other side in the particular media market.
January 21, 2010, 10:48 pmll says:
Which brings up two questions under McCain Feingold.
Media corporations may publish what they wish regarding candidates, and they may publish what they want in any quantity at any time in their sole discretion.
If a nonmedia corporation issued daily press releases, in person by a PR flack or on a website, with respect to candidates and their suitability or lack thereof for the offices they are running for, within the time period prohibited by McCain Feingold, is the nonmedia corporation subject to fines and penalties for doing so?
If yes, why the difference, what is the difference?
January 21, 2010, 11:42 pmNathanT says:
The argument that the 5-4 ruling is simply a recognition of a corporation’s right to free speech is broad and exceptionally naïve. Corporations are conferred their existence by statute, and are not simply “individuals coming together as a group.” They exist solely to generate profit with resources far exceeding that of most individuals and other groups. They have an outsized, almost behemoth like stature that is rightly feared.
The court is overbroad and sweeping in its consideration of the types of corporations, and their ability to influence, viewing them in all the same vein. The corporation in this case, Citizens United, is but a small corporation. It is not really the type of corporation that past restrictions were most worried about. Many of the past laws were promulgated to prevent corporations with extremely large resources to heavily influence politics.
In the case of publicly traded corporations, which represent the largest corporations with the largest resources, the “people organized as corporations” e.g. the shareholders, usually lack an actual participatory role in the corporation’s affairs.
At least in the case of this type of corporation, decisions are almost always made without the input of the shareholders. Indeed in this case the “people organized as corporations” often are not even aware of, nor have any real role in what their corporation does. Anyone owning a mutual fund would constitute as one of these “people organized as corporations” yet it may very well not be the wish of such people to have the corporation endorse any particular political position. In reality the “people organized as corporations” e.g. the shareholders, are virtually always substituted by the board of directions and corporate officers. It takes far, far too much time and resources to actually gauge the opinion of the shareholders when making decisions.
A more sensible approach would have been for the court to take reality into account, at least for publicly traded corporations, so that certain types of corporations could exercise a greater role, and the larger far more powerful ones would be subject to other kinds of internal restraints, such as shareholder approval. In that case, the “people organized as corporations” would actually be the ones to exercise control over the decision to finance a political position.
The focus should have been on preserving an expenditure cap, while allowing limited financing. Instead the court chose to allow unlimited spending. The reality of what a corporation is, and how those who make it up are able to express themselves is simply not cut and dry.
This decision will have very drastic consequences, and I’m not even going to get into the disclosure rules barely left intact by the ruling….
January 22, 2010, 1:37 amAlfred J. Lemire says:
Formal editorializing, i.e., the views of editorial boards that appear on newspaper editorial pages, is a minor part of the protection current law has provided to news organizations. (Radio and TV outlets rarely have similar, separate editorial commentary.)
The major protected influence of news organization positions has appeared in the news area. Individuals and organizations can have their views ignored, attacked, or misrepresented in news stories, with little opportunity to have their positions reported fairly in rebuttal, with like prominence. And others can get positive coverage of dubious merit, with little chance of rebuttal by opponents. (Letters to the editor are inadequate for defense and advocacy.)
For example, in the 2008 campaign, newspapers ran AP articles critical of Sarah Palin’s governance (none fairly addressed her record, something even the New York Times did) and of at least one speech, in Colorado, well within the 60-day period before the election. I read no similar criticism in an AP report of a speech by President Obama or of his record in Chicago or as Senator.
The ruling makes possible ads defending individuals and organizations whose positions were ignored or misrepresented in news columns. Possibly, ads will provide Web addresses where further information expressing defenses or advocacies can be read or heard. This will mean more money for newspapers but will further weaken a notion that the reports in their pages are necessarily fair or truthful or nonpartisan.
January 22, 2010, 3:26 amJeff Walden says:
How much did you pay Kennedy to use “blog” in his opinion so you could get ad revenue by pointing out the fact? Or did you just arrange an under-the-table kickback scheme to share the wealth from these calculated actions? I guess it ain’t quid pro quo if it can’t be proven such…
January 22, 2010, 6:13 amHarry Eagar says:
Nathan T. expresses my sense of things better than I could myself, except on the subject of caps. The reason I disapproved of McCain-Feingold was the caps. If X should be allowed to contribute anything, the government should not tell him he cannot contribute everything, should he be so foolish (and when it comes to contributions to churches, many are).
People do not (usually) buy stock in order to make their political views known; but if they want to form a corporation to do just that, they could. In fact, Citizens United seems to be just that sort of corporation. It seems to me that if its bylaws say ‘We are in the business of telling vile stories about Hillary Clinton,’ then in a free country, it should be able to offer stock in ‘revile Hillary’ and see how the market responds.
NPR reviewed Gingrich about Citizens, and he said at least 3 times that union members are forced to pay dues to support political speech by unions. Presumably Gingrich knows that there is a national law forbidding this and he was just lying.
Be that as it may, I know of no similar arrangement whereby a stockholder can reclaim the part of his “dues” that management wants to use to push political agendas.
There is the further issue of whether a corporation can, in principle, advance its own interests by spending money on political issues that are not directly connected with its business. It is one thing to suppose that Exxon would want to spend money on, say, emissions issues; but what if it wants to spend money on the abortion issue?
William F. Buckley Jr. used to argue that corporations should not contribute to charities.
January 22, 2010, 1:34 pmNo Fear of Citizens | The League of Ordinary Gentlemen says:
[...] of large corporations over our elections. This time I’ll point to Professor Volokh’s brief follow-up post, and especially his point 2. Specifically, the result of the decision is that the [...]
January 22, 2010, 4:39 pmJoseph Somsel says:
Our liberal commentators seem to be looking through the wrong end of the telescope on this issue.
The First Amendment exists both to ensure the right to SPEAK and the right to LISTEN.
McCain-Feingold effectively prevented me from seeing or hearing Citizens United documentary on Hillary Clinton. It also blocks me from hearing the political views of Ben and Jerry’s Corporation on transfats or whatever they may contribute to the political debate. I want to hear all sides of the issue as well as decide which points of view merit my attention.
This ruling protects my rights as a citizen to be communicated TO on political issues. I need to be able to select from a broad menu of messages. I don’t want government, for whatever reason, to get in the way.
That’s why the Fairness Doctrine is hooey. Here’s a piece on how citizens have chosen their talk radio:
http://www.americanthinker.com/2009/03/megaphone_envy_and_the_fairnes.html
As to corporations, they are created to allow economic efficiency and offer the humans who invest in themm limited liability.
“They exist solely to generate profit with resources far exceeding that of most individuals and other groups.” Not necessarily so. Most corporations start small and many make no profit.
If big and profitable it is because they sell something that people want to pay for (barring monopolies and rent seekers). Their owners have a valid interest and deserve the right to speak collectively. As in most matters, they delegate this responsibility for action to their managers.
In exchange for these limits on personal liability, they are subject to taxation.
As to marriage, they can merge, divide, and die. Think of it as an asexual form of reproduction.
January 22, 2010, 4:53 pmCitizens United v. FEC: Eight Unanswered Questions | 95years says:
[...] Volokh notes that the new campaign spending paradigm may pump significant amounts of money into the media [...]
January 22, 2010, 5:19 pmHarry Eagar says:
‘As to marriage, they can merge, divide, and die. Think of it as an asexual form of reproduction.’
No, they can’t. That was the point of my, admittedly oblique, reference to Clayton and Sherman in my first comment, which appears to have puzzled some.
Nobody is preventing you from hearing the opinions of ‘Ben and Jerry’s,’ because it is just a paper construct and cannot think. If Ben or Jerry wants to tell you something, there are ways for them to go about it.
January 22, 2010, 7:43 pmOf snow and Supreme Court rulings - E.D. Kain - American Times - True/Slant says:
[...] Eugene Volokh here and here discussing the court [...]
January 23, 2010, 4:27 pmWhite woman put on a book cover (link roundup) - Fashion and T-Shirt Blog says:
[...] A bit more on why the Supreme Court’s decision on campaign spending is a good [...]
January 24, 2010, 4:04 amCraig R. Harmon says:
I wouldn’t care to try to say what the common person knows. After all, I can’t read the mind of every common person in America. On the other hand, if this poll is generally representative of what the common people think, then the majority of them agree with the SCOTUS decision in Citizens United. So whether the common person knows that some corporate wealth is simply unmatchable or not, it would seem that the majority believe strongly enough in free speech that unmatchability is less important than the freedom to spend money to disseminate political speech. America has never been obsessive about equality of result — in this case, that everyone should have equal funds available to them to disseminate their ideas — than they have been about the liberty to speak one’s mind.
January 25, 2010, 1:42 amCorpus Juris Vol. VI » First Thoughts | A First Things Blog says:
[...] Eugene Volokh’s “Money and Speech,” “Citizens United and the Mainstream Media,” and “Lessened Corporate First Amendment Rights and Media [...]
January 29, 2010, 8:51 amuberVU - social comments says:
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February 13, 2010, 7:17 am