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Thu Nov 29, 2012, 08:42 PM

Press Clips by Linda Greenhouse

Justice Samuel A. Alito Jr. offered a provocative defense the other day of the Citizens United decision and its robust view of the First Amendment’s application to corporate speech. The 2010 decision, which invalidated federal restrictions on corporate campaign spending, has been criticized by, among others, many news organizations, including this one. But the press, above all, should have received Citizens United gratefully, Justice Alito suggested, because after all, newspapers are published by corporations. So without protection for corporate speech, consider how the press would have fared, he continued, in such landmark cases as New York Times v. Sullivan, which provided a strong defense against libel suits by public figures, or the Pentagon Papers case, which upheld the right to publish government secrets.

It was an anachronistic, even silly debater’s point. New York Times v. Sullivan, decided in 1964, and the 1971 Pentagon Papers decision (New York Times v. United States) of course predated the Supreme Court’s current infatuation with corporate speech and had nothing to do with the fact that newspaper publishing companies are corporations. It was the media’s role in American society, not organizational format of the publisher’s executive suite, that the justices found worthy of constitutional protection in these and other First Amendment decisions.
Justice Alito, addressing a Federalist Society banquet in Washington, went on to question why “certain preferred corporations, namely those media organizations” should be accorded a favored position in the First Amendment pantheon. This may have been red meat for his conservative audience, but whatever Justice Alito’s intent, it was far from a silly point. It was a serious one, and behind it, as he went on to suggest, lies a profound question: what, today, is “the press” anyway? It’s a question without a simple answer, either in today’s chaotic and rapidly changing media landscape or in Supreme Court doctrine.

The First Amendment prohibits Congress (and, by later interpretive expansion, the states) from “abridging the freedom of speech, or of the press.” Do the dual references to speech and press amount to one and the same, or does the amendment place “the press” in a special position, with rights not accorded to other speakers? The Supreme Court has never fully resolved this question.


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