In the year since the Supreme Court handed down its 183-page decision in Citizens United, the liberal objection to it has gradually boiled down to a single sentence: The majority was wrong to grant First Amendment rights to corporations.
That critique is incomplete. As Justice John Paul Stevens acknowledged in his dissent, the court had long recognized that “corporations are covered by the First Amendment.” Justice Anthony M. Kennedy, writing for the majority, listed more than 20 precedents saying that.
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?
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 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.
There is a practical problem, too, especially in the Internet era. Who, after all, is “the press”? Anyone with a Twitter account?
Consider this telling exchange between Justice Samuel A. Alito Jr. and a lawyer for the Obama administration at the first of two arguments in Citizens United. The lawyer, Malcolm L. Stewart, said Congress had the power to regulate corporate speech about political candidates under the First Amendment.
“Most publishers are corporations,” Justice Alito said. “And a publisher that is a corporation could be prohibited from selling a book?”
It was a hypothetical question, but it cut to the core of the meaning of the press clause of the First Amendment. There was a lot of back and forth, and other justices jumped in. In the end, though, Mr. Stewart gave a candid answer.
“We could prohibit the publication of the book,” he said. (The government backed away from that position at the second argument, but not very far.)
Mr. Stewart could have given a different sort of answer, one he hinted at but did not embrace.
“The First Amendment refers both to freedom of speech and of the press,” he said at one point. “There would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right.”
In his dissent, Justice Stevens called that question “interesting and difficult,” and he did not quite embrace special protection for the institutional press either. “One type of corporation, those that are part of the press, might be able to claim special First Amendment status,” he wrote.
Justice Antonin Scalia reviewed the historical evidence in his concurrence.
“It is passing strange,” he wrote, “to interpret the phrase ‘the freedom of speech, or of the press’ to mean, not everyone’s right to speak or publish, but rather everyone’s right to speak or the institutional press’s right to publish. No one thought that is what it meant.”
In a 2008 book, “Freedom for the Thought That We Hate,” Anthony Lewis, a former Supreme Court reporter and columnist for The New York Times, reached the same conclusion. “The amendment surely meant to cover both oral and written expression,” he wrote, rather than “a specially protected institution.”
The Supreme Court’s decisions interpreting the press clause have also said the institutional press has no special status.
“There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not,” Justice Kennedy wrote in Citizens United. The decision lifted restrictions on corporate spending in candidate elections.
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.”
That may leave supporters of strict campaign finance laws in a bind.
The proper treatment of media corporations, said Richard L. Hasen, a leading election law specialist, is “among the most difficult questions for supporters of reasonable campaign finance reform.”
He added that the issue is these days doubly hypothetical. Citizens United ensured that all corporations could say what they like. And even before Citizens United, the McCain-Feingold law contained an exemption for news reports, commentaries and editorials.
There are good arguments both ways about whether corporations ought to be covered by the First Amendment. But it is harder to say that some corporations have First Amendment rights and others do not.