Lessened Corporate First Amendment Rights and Media Corporations

Justice Stevens’ dissent in Citizens United argues that corporations should have sharply reduced First Amendment rights, at least when it comes to speech about political candidates. The obvious response, which the majority makes at length, is that this would leave the government free to impose similar restraints on newspapers, magazines, broadcasters, and others, since nearly all of them are organized as corporations as well. (Congress has so far exempted most media corporations from these restrictions; but the argument that corporations have reduced First Amendment rights would suggest that these exemptions are just a matter of legislative grace, and that Congress could restrict media corporations if it wanted.)

Not so, argues the dissent (echoing the views of many commentators who support restrictions on corporate speech). “The press plays a unique role not only in the text, history, and structure of the First Amendment but also in facilitating public discourse” (p. 85). “The text and history [of the First Amendment] highlighted by our colleagues suggests why one type of corporation, those that are part of the press, might be able to claim special First Amendment status, and therefore why some kinds of ‘identity’-based distinctions might be permissible after all.” (P. 40 n.57.) More broadly, I’ve heard commentators argue, media corporations have nothing to fear from court decisions that treat the First Amendment as less protective of the rights of corporations, since media corporations have special protection under the Free Press Clause.

Yet why would that be so? If the Free Speech Clause doesn’t cover corporations (or doesn’t cover them as strongly), why should the Free Press Clause be read as strongly protecting corporations? Say the dissent is right that “there is not a scintilla of evidence to support the notion that anyone believed [the First Amendment] would preclude regulatory distinctions based on the corporate form” (pp. 34-35), and that this is relevant today (something I’m skeptical about, since there’s also no evidence to the contrary, and since the lack of any evidence may suggest that modern business corporations weren’t much contemplated by the Framers). 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.

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. I know of no evidence that the “liberty of the press” was seen as excluding those speakers, and covering only professional newspapermen.

And I know of some evidence to the contrary.

David Hume’s Of the Liberty of the Press (1742), for instance, discussed “the liberty of the press, by which all the learning, wit, and genius of the nation may be employed on the side of freedom and everyone be animated to its defense.” Did he really mean to limit this to the liberty of professional newspaper publishers, and to exclude book authors and others who contributed much “learning, wit, and genius” without being professional publishers? I doubt it, and later he speaks of “book[s] or pamphlet[s]” as being covered.

Likewise, the Continental Congress’s Letter to the Inhabitants of Quebec discusses “[t]he importance” of “the freedom of the press” as “consists[ing] besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.” Advancement of science, morality, and the arts, I assume, was not seen as the domain of the professional press; at the time, this was generally done through books, many of which were published by people (for instance, scientists) who were not “part of the press” as an industry. It seems quite unlikely that “the freedom of the press” was seen by the Continental Congress as limited to the industry labeled as “the press.” The statement is more consistent with seeing the freedom of the press as the freedom of all to use the technology of the press.

Even Blackstone’s position on the freedom of the press, while in many ways quite restrictive, speaks of it as the right of “Every freeman”: Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press.” This fits poorly with the position that the right belongs only to the institutional press.

Early American cases on the freedom of the press are few, but two cases from the 1820s and the 1830s reinforce this. Consider the very first American court decision holding a government action to be an unconstitutional interference with the freedom of the press, Brandreth v. Lance (N.Y. Chanc. Ct. 1839). Lance was a business rival of Brandreth’s, who apparently commissioned one Trust to write an allegedly libelous biography of Brandreth, and then had Hodges (a printer) publish it. Brandreth got an injunction against Lance, Trust, and Hodges; the New York Chancery Court held that the injunction violated the liberty of the press. But nothing in the court’s opinion suggested that the liberty of the press was a right that belonged only to printer Hodges — the injunction was dissolved as to all the defendants.

Likewise, Commonwealth v. Blanding (Mass. 1825), involved a criminal libel prosecution of Blanding, who was not a newspaper publisher; Blanding “delivered the writing set forth in the indictment to the printer of the Providence Gazette, … and … it was published in that paper at the request of [Blanding].” (The case doesn’t reveal whether Blanding paid for the placement.) The court rejected Blanding’s freedom of the press argument, but only because it concluded that libels weren’t covered by the freedom of the press, and because the freedom of the press was only a freedom from prior restraint. “The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.” There was no suggestion that the liberty of the press consisted only of the liberty of people “who are part of the press” in the sense of an industry.

[UPDATE:] Similarly, Root v. King, 7 Cow. 613 (N.Y. Sup. 1827), wrote that editors of a newspaper have no “other rights than such as are common to all” under the state constitutional “liberty of the press.”

None of these cases, of course, involved corporations. But they do show that “liberty of the press” was seen as a right to publish to the world at large using the technology of the “press” (including by using others’ presses, whether for pay or because they liked what you wrote), not as a right that belonged to members a particular industry. The institutional media and other people are on par for purposes of “the freedom of speech, or of the press.” The constitutional protections offered to the institutional media are no greater than those offered to others. And thus if ordinary business corporations lack First Amendment rights, so do those business corporations that we call media corporations.