Comment & Debate
Citizens United vs. Federal Election Commission 5-4 Majority Opinion of the Court: “The media exemption discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish betweencorporations which are deemed to be exempt as media corporations and those which are not. “We have consis-tently rejected the proposition that the institutional presshas any constitutional privilege beyond that of other speakers.” Id., at 691 (SCALIA, J., dissenting) (citing Bel-lotti, 435 U. S., at 782); see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 784 (1985) (Bren-nan, J., joined by Marshall, Blackmun, and STEVENS, JJ., dissenting); id., at 773 (White, J., concurring in judgment).With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.
The law’s exception for media corporations is, on its own terms, all but an admission of the invalidity of the antidis-tortion rationale. And the exemption results in a further,separate reason for finding this law invalid: Again by itsown terms, the law exempts some corporations but coversothers, even though both have the need or the motive tocommunicate their views. The exemption applies to mediacorporations owned or controlled by corporations that havediverse and substantial investments and participate inendeavors other than news. So even assuming the mostdoubtful proposition that a news organization has a right to speak when others do not, the exemption would allow a conglomerate that owns both a media business and anunrelated business to influence or control the media in order to advance its overall business interest. At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure,
Cite as: 558 U. S. ____ (2010) 37) would be forbidden to speak or inform the public about thesame issue. This differential treatment cannot be squaredwith the First Amendment.
There is simply no support for the view that the FirstAmendment, as originally understood, would permit the suppression of political speech by media corporations. The Framers may not have anticipated modern business and media corporations. See McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 360–361 (1995) (THOMAS, J., concurring in judgment). Yet television networks and major newspapers owned by media corporations havebecome the most important means of mass communication in modern times. The First Amendment was certainly notunderstood to condone the suppression of political speech in society’s most salient media. It was understood as a response to the repression of speech and the press thathad existed in England and the heavy taxes on the pressthat were imposed in the colonies. See McConnell, 540 U. S., at 252–253 (opinion of SCALIA, J.); Grosjean, 297
U. S., at 245–248; Near, 283 U. S., at 713–714. The greatdebates between the Federalists and the Anti-Federalists over our founding document were published and expressed in the most important means of mass communication ofthat era—newspapers owned by individuals. See McIn-tyre, 514 U. S., at 341–343; id., at 367 (THOMAS, J., con-curring in judgment). At the founding, speech was open,comprehensive, and vital to society’s definition of itself; there were no limits on the sources of speech and knowl-edge. See B. Bailyn, Ideological Origins of the American Revolution 5 (1967) (“Any number of people could join insuch proliferating polemics, and rebuttals could come fromall sides”); G. Wood, Creation of the American Republic 1776–1787, p. 6 (1969) (“[I]t is not surprising that theintellectual sources of [the Americans’] Revolutionary thought were profuse and various”). The Framers may have been unaware of certain types of speakers or forms of.
CITIZENS UNITED v. FEDERAL ELECTION COMM’N Opinion of the Court
communication, but that does not mean that those speak-ers and media are entitled to less First Amendment pro-tection than those types of speakers and media that pro-vided the means of communicating political ideas when the Bill of Rights was adopted
Campaign finance attorney Cleta Mitchell, who had filed a friend-of-the-court brief on behalf of two advocacy organizations opposing the ban, wrote that “The Supreme Court has correctly eliminated a constitutionally flawed system that allowed media corporations (e.g., The Washington Post Co.) to freely disseminate their opinions about candidates using corporate treasury funds, while denying that constitutional privilege to Susie’s Flower Shop Inc. … The real victims of the corporate expenditure ban have been nonprofit advocacy organizations across the political spectrum.”[1]
Damon W. Root. “Activism in Defense of Free Speech is No Vice.” Reason. September 2, 2009: “As for Cohen’s argument that corporations don’t have a “right to speak,” bear in mind that most newspapers and other news organizations also happen to be corporations. Surely the First Amendment applies to them? Yet following Cohen’s logic to its conclusion, there’s nothing to prevent the government from interfering with the content of an op-ed (or a cable news show) in the run-up to a federal election. They may call themselves “the press,” but why should News Corporation or the New York Times Company get to spend their evil corporate money with impunity?”
“The Media and Corporate Free Speech.” Wall Street Journal. January 30th, 2010: “The First Amendment is the lifeblood of the press. Yet most newspapers—the one you are reading is a notable exception—take an editorial position similar to that of the Times. Why? “I think that two things are at work,” Mr. Abrams says. “One is that there are an awful lot of journalists that do not recognize that they work for corporations….”
Citizens United vs. Federal Election Commission 5-4 Majority Opinion of the Court: “With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.”