But why you ask? The Times and Liptak have been huge critics of Citizens United and the pro-business Roberts Court. Well, there is a tiny little wrinkle of Citizens United that progressives tend to ignore, and Liptak hits right on the head. Here is how Adam phrases it:
But an old and established rule can still be wrong, and it may be that the liberal critique is correct. If it is, though, it must confront a very hard question. If corporations have no First Amendment rights, what about newspapers and other news organizations, almost all of which are organized as corporations?
Yes, the New York Times, and all media are owned by corporations. If only individuals have First Amendment rights, than the New York Times, ABC News, and even PBS cannot assert rights of freedom of speech. Pentagon Papers case? Gone. Seditious libel laws shutting down newspapers? Totally constitutional.
Adam addresses the common arguments, that the press is different, finding it “weak”:
The usual response is that the press is different. The First Amendment, after all, protects “the freedom of speech, or of the press.” Since “the press” is singled out for protection, the argument goes, media corporations enjoy First Amendment rights while other corporations do not.
But the argument is weak. There is a little evidence that the drafters of the First Amendment meant to single out a set of businesses for special protection. Nor is there much support for that idea in the Supreme Court’s decisions, which have rejected the argument that the institutional press has rights beyond those of the other speakers.
Eugene Volokh, a law professor at the University of California, Los Angeles, has reviewed the historical evidence. The bottom line, he said, is this: “If ordinary business corporations lack First Amendment rights, so do those business corporations that we call media corporations.”
I look forward to the reply from the Constitutional Accountability Center arguing that the Press is different, though I think Adam’s admonition that it is tricky to define who is, and is not part of the “institutional press.”
There is a practical problem, too, especially in the Internet era. Who, after all, is “the press”? Anyone with a Twitter account?
Is my blog part of the Press? Does JoshBlackman.com have personhood rights? Hrm… I’ll need to think that through.
Now why did Liptak write this piece? I think he had to address the shortcoming in attacks on Citizens United. Also, with FCC v. AT&T coming down the pike, we may soon have an opinion clarifying corporate personhood. The FantasySCOTUS prediction tracker indicates that that the Supreme Court will affirm (73% affirm, 26% reverse), and find in favor of corporate personhood rights under FOIA. Better to burst this bubble now, then wait to do damage control afterwards.
Update: Ann Althouse makes a similar point and asks “Why is the New York Times just noticing this?”
Update 2: I did not realize this, but the Times ran an editorial on FCC v. AT&T on page A22 the same day that Liptak’s piece appeared. Hrm…