NY Times Editorial Board Supports First Amendment Amendment, But Unpersuasively Falls Back on the Press Clause

September 12th, 2014

I second Rick Hasen that the Times’s Editorial Board doesn’t really endorse the ratification of the First Amendment amendment, but rather seems to suggest it’s a good idea to put up for a (futile) vote. This is kinda like their non-endorsement of Zephyr Teachout.

In any event, the Times should not be so glib with tweaking with the Constitution. I’ve written at great length that the New York Times Corporation (yes a corporation), routinely vindicates Free Speech rights. Most prominently, see New York Times v. Sullivan, the Pentagon Papers Case, etc.. The Amendment on Corporate Speech (which I opposed here) would give Congress the power to regulate newspapers, in ways the First Amendment would prohibit.

Now, some may argue, what about the Press Clause! The Times seems to indirectly acknowledge this point. In the las paragraph, we find these two sentences that do more than meets the eyes:

The amendment would not be a cure-all. “The press” is an amorphous term in the digital age, and political groups could try to claim free-press status to get around regulation.

Every word counts in these editorials. This statement isn’t just here to say that virtual political groups may rely on the Press Clause to get around these regulations. If this misguided Amendment ever passes, the New York Times legal department would promptly switch all of their argument from the First Amendment’s free speech clause to the First Amendment’s press clause. Saved, right?

Don’t be so certain. Adam Liptak, who is the Times’s Supreme Court reporter, previously had a lengthy career in defending First Amendment rights, including as counsel for the Times, wrote otherwise. In a 2011 piece, Liptak wisely noted that corporations like newspapers may not be safe.

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?

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.”

So, whatever risk this Amendment poses to free speech (and there are many), the Times thinks they will skate by. Right? While some digital groups may not actually be the press, you know who will be? The Newspaper of Record. That’s who. Don’t be so certain. Liptak gets it exactly right. Once you start messing with the First Amendment, all bets are off. This poorly drafted Amendment does far more than reverse Citizens United.

And if you have any doubts about how courts interpret laws, look at the Religious Freedom Restoration Act. Some thought it simply restored the pre-Smith First Amendment Jurisprudence. In Hobby Lobby, we learned that it expanded religious liberties! And this was a statute, passed a few years after Smith. Imagine ratifying an Amendment that undoes two centuries of case law!

As Justice Thomas noted in his opinion in Citizens United:

“The chilling endpoint of the Court’s reasoning is not difficult to foresee: outright regulation of the press.”

Mess with the Constitution at your own peril.