Finance decision could put chill on the First Amendment
Is the press next in line for congressional regulations?Skip to next paragraph
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That is a question raised in two dissents filed Wednesday in the US Supreme Court's landmark First Amendment decision upholding campaign-finance reform.
If Congress can criminalize certain types of speech by corporations, unions, and advocacy groups in the weeks prior to an election, it is but a short additional step to government regulation of the news media, say Justices Clarence Thomas and Antonin Scalia.
"The freedom of the press, described as one of the greatest bulwarks of liberty, could be next on the chopping block," writes Justice Thomas. "Although today's opinion does not expressly strip the press of First Amendment protection, there is no principle of law or logic that would prevent the application of the court's reasoning in that setting."
He adds, "The press now operates at the whim of Congress."
Justice Scalia, in a separate dissent, said the campaign-finance law "cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government."
He notes that the British Stamp Act of 1712 was aimed at stifling unfavorable war coverage in the British press. Within the year, half the newspapers in England were no longer in business.
He cites the example to make the point that "an attack upon the funding of speech is an attack upon speech itself."
Scalia adds, "Where government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore."
Burt Neuborne of the Brennan Center for Justice at NYU School of Law views the issue from a different perspective. He says there is "no risk whatsoever" of the campaign-finance decision opening a door to press restrictions.
"The rationale of the majority opinion is not that there is something wrong with influencing people politically by arguing strongly and having powerful ideas," he says. "What they were worried about was purchasing access and influence."
Joel Gora, associate dean at Brooklyn Law School and an American Civil Liberties Union counsel in the campaign-finance case, disagrees. "If Congress can limit the speech of the ACLU, why isn't The New York Times that far behind," he asks.
"The New York Times is a corporation," Mr. Gora says. "We have long said that the principles that would permit Congress to limit the speech of the ACLU would also allow them to limit the speech of The New York Times."
Critics of the campaign-finance law say it has already entangled the media in a web of regulation because media corporations occupy a favored status within the law.
It offers an exemption for media corporations that own broadcast facilities from the communications restrictions. Excluded is any "communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, unless such facilities are owned or controlled by any political party, political committee, or candidate."
That provision has led officials at the National Rifle Association (NRA) to suggest that they are now in the market for a television or radio station to gain exemption from preelection campaign-speech restrictions. "It makes no sense to silence groups like the ACLU and the NRA on the notion that they, as corporations, represent a threat of corruption to the political process, while leaving General Electric, News Corp., Microsoft, and other mega-corporations that own broadcasting facilities free to say whatever they want," says Charles Cooper, who represented the NRA in the campaign-finance case.
Mr. Neuborne says the campaign-finance law is aimed at countering efforts to peddle influence and access. He says if the NRA purchases a broadcast station, it wouldn't necessarily violate the campaign-finance law.
"They are using money to advance their own ideas," he says.
Regulation of news organizations is already here, says Gora. He says that restrictions on corporate campaign speech only apply to broadcast ads. He says the restrictions apply because broadcast ads have been deemed by members of Congress to be more effective than print ads.
"The idea that they are going to pick on the more persuasive medium and shut it down, and not limit the print media, is, we thought, a real First Amendment problem," he says.