YOU MAY HAVE HEARD ABOUT the recent Supreme Court decision, Citizens United v. Federal Election Commission. Some of the organs of the major mass media, which I won't mention by name, but the New York Times comes to mind, decried the court's decision.
"With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding," said the New York Times.
New York Times Company, you should know, is a corporation which publishes two national and 16 regional newspapers; owns eight network-affiliated television stations, two New York radio stations and more than 40 web sites -- and published on October 23, 2008 an endorsement editorial entitled "Barack Obama for President."
The Supreme Court decision, Citizens United v. Federal Election Commission, overturned significant parts of the Bipartisan Campaign Reform Act of 2002, commonly called McCain-Feingold, that had banned the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations and unions in the 30 days before a presidential primary and in the 60 days before the general election, but the law notably exempted new technologies, like YouTube, and old ones, like newspapers.
Citizens United, a conservative advocacy group and a nonprofit corporation, produced for broadcast “Hillary: The Movie,” a scathingly hostile look at Hillary Clinton not unlike Michael Moore’s take on George W. Bush in “Fahrenheit 9/11.”
Two basic questions came before the court in this case: Is the film the kind of “electioneering communication” that McCain-Feingold says may not be broadcast in certain time windows before elections? And if so, is the law itself constitutional given the First Amendment?
On the first, I say, of course. On the second, personally, I don't know much about precedent, stare decisis, or any other technicalities involving the constitutionality of any particular law -- but I do know how to read, and this is how the first amendment to the U.S. Constitution reads: "Congress shall make no law . . . abridging the freedom of speech." And I do have a notion of what that means. Here's my take: "Congress shall make no law … abridging the freedom of speech."
Now, one cannot be rigidly absolute in the interpretation of this simple sentence. The famous counter example to the absolutist free-speech position is that you can't yell "Fire!" in a crowded movie theater. But this is not that. It is a documentary. The theater is not likely to be crowded.
Before this decision came down, the law applied to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” The net effect, according to Citizens United's president, David Bossie, is censorship. “I can put it in as many theaters as I want across the country,” he said of the documentary, but since he can't spend money advertising it, “I just can’t let anyone know about it.”
At the first Supreme Court argument back in March, Fred Wertheimer, a lawyer supporting the FEC's case, seemed reluctant to answer questions about the government’s regulation of books, but when pressed, said, “A campaign document in the form of a book can be banned.”
“Governments are often hostile to speech,” wrote Justice Anthony Kennedy. “But . . . it seems stranger than fiction for our government to make . . . political speech a crime. Yet this is the statute’s purpose and design.”
I agree with the court and with Floyd Abrams, the noted First-Amendment lawyer, who in opposing the law, said, “Criminalizing a movie about Hillary Clinton is a constitutional desecration.” How the New York Times can't see that is beyond me.
Gary D. Gaddy based the facts of this column almost entirely on New York Times coverage, which is, in his opinion, even without legal exemption, protected by the First Amendment.
A version of this column was published in the Chapel Hill Herald on Friday February 5, 2010.
Copyright 2010 Gary D. Gaddy