Media Fairness

This is big. Finally, the McCain-Feingold bill has been rolled back.  After review of the highlights below, it is chilling to think that only 5 out of 9 Supreme Court Justices agreed with the majority opinion.  Some portions of the majority and concurring opinions (which I appreciate most) are below. Citations are redacted.  The full opinion is available here.  Comments are welcomed.

Majority Opinion, J. Anthony Kennedy:

1. “The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”
2. “We decline to adopt an interpretation that requires intricate case-by-case determinations to verify whether political speech is banned, especially if we are convinced that, in the end, this corporation has a constitutional right to speak on this subject.”
3. “… the Court cannot resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment. … It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications.”
4. “… given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC [Federal Election Commission] enforcement must ask a governmental agency for prior permission to speak.  … These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit. … When the FEC issues advisory opinions that prohibit speech, many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.”
5. “[T]he FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests.  If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question. Government officials pore over each word of a text to see if, in their judgment, it accords with the 11-factor test they have promulgated. This is an unprecedented governmental intervention into the realm of speech.”
6. “The First Amendment provides that Congress shall make no law . . . abridging the freedom of speech. … The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations including nonprofit advocacy corporations either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election.”
7. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. … Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. … Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.”
8. “Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speakers voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.”
9. “… by its own terms, the law exempts some corporations but covers others, even though both have the need or the motive to communicate their views. The exemption applies to media corporations owned or controlled by corporations that have diverse and substantial investments and participate in endeavors other than news.  So even assuming the most doubtful 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 an unrelated 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.”
10. “The Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.”
11. “Limits on independent expenditures, such as §441b, have a chilling effect extending well beyond the Government’s interest in preventing quid pro quo corruption.  The anti-corruption interest is not sufficient to displace the speech here in question.”
12. “We return to the principle … that the Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”

Concurring Opinion, J. John Roberts and J. Samuel Alito:

1. “The Government urges us in this case to uphold a direct prohibition on political speech.  It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern.  Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations as the major ones are.”
2. “The Court properly rejects that theory, and I join its opinion in full.  The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.”

Concurring Opinion of J. Antonin Scalia (primarily in reference to the dissenting opinion of J. J.P. Stevens), joined by J. Samuel Alito and J. Clarence Thomas:

1. “Instead of taking [a] straightforward approach to determining the [First] Amendment’s meaning, the dissent embarks on a detailed exploration of the Framers’ views about the role of corporations in society.”
2. “The Framers didn’t like corporations, the dissent concludes, and therefore it follows (as night the day) that corporations had no rights of free speech.  Of course the Framers’ personal affection or disaffection for corporations is relevant only insofar as it can be thought to be reflected in the understood meaning of the text they enacted not, as the dissent suggests, as a freestanding substitute for that text.”
3. “Despite the corporation-hating quotations the dissent has dredged up, it is far from clear that by the end of the 18th century corporations were despised.  If so, how came there to be so many of them?”
4. “The lack of a textual exception [in the First Amendment] for speech by corporations cannot be explained on the ground that such organizations did not exist or did not speak.  To the contrary, colleges, towns and cities, religious institutions, and guilds had long been organized as corporations at common law and under the King’s charter … [as a historical matter of fact] [b]oth corporations and voluntary associations actively petitioned the Government and expressed their views in newspapers and pamphlets. For example: An antislavery Quaker corporation petitioned the First Congress, distributed pamphlets, and communicated through the press in 1790. … The dissent offers no evidence – none whatever – that the First Amendment’s unqualified text was originally understood to exclude such associational speech from its protection.”
5. “Historical evidence relating to the textually similar clause “the freedom of . . . the press” also provides no support for the proposition that the First Amendment excludes conduct of artificial legal entities from the scope of its protection.”
6. [In summary] “The [First] Amendment is written in terms of “speech,” not speakers.  Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals, and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment.  No one says otherwise. A documentary film critical of a potential Presidential candidate is core political speech, and its nature as such does not change simply because it was funded by a corporation.”