[EL] Wow does Greenhouse miss the point

[Smith, Brad]

Wow, does Linda Greenhouse totally miss the point in her latest column.

Greenhouse first calls the question about the corporate status of the New York Times irrelevant in the Pentagon Papers case and NYTimes v. Sullivan - it's a "silly debater's point." Writes Greenhouse "the decision[s] 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."

Actually, in those cases the Court did not find the "media's role in American society... worthy of constitutional protection" - at least not any special protection. What it found worthy of protection was the speech involved. And of course those cases did not directly involve corporate status, because the law at issue did not turn on corporate status. The question that is raised, when people such as Justice Alito and Floyd Abrams note the corporate status of the Times, is whether the statute would have been upheld had the statute prohibited not the publication of the Pentagon Papers, but rather the publication of the Pentagon Papers by a corporation.  Since the government almost certainly has a strong interest in protecting various secrets, if corporations are not covered by the First Amendment, the answer would seem to be yes, and indeed, the dissenters opinion in Citizens United suggests that the answer would be yes - unless...

The "unless" is whether there is some special First Amendment for "press." Having totally missed that this is the point of the Alito's remarks, Greenhouse suddenly recognizes, if only implicitly and unawares of the revelation, that this is not a "silly debater's point" after all. Rather, she argues that the "press" (whatever that means - we'll soon come to it) does have special privileges that the rest of us don't. She claims that if "freedom of the press" and "freedom of speech" don't give special privileges to the "press," then the phrases are redundant. Of course this is not true. Another possibility is that freedom of press is the right to publish; freedom of speech is the right to speak. This possible interpretation - which is, I think, the right one - doesn't even appear on Greenhouse's radar as a possibility - even though it actually is the one the Supreme Court has adopted, since the Court has routinely made clear that the "press" has not special First Amendment rights that the rest of us do not.

Certainly these are debatable theories. What is remarkable about this is simply that a person can cover the Supreme Court for so long, have her own livelihood depend on the First Amendment, and still have so little awareness that these arguments about the First Amendment and its meaning even exist. Or maybe Greenhouse is smarter than I give her credit for, and is just engaging in an "anachronistic and silly debater's trick."


Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Thursday, November 29, 2012 11:21 AM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 11/29/12

Fascinating Linda Greenhouse Column on the Campaign Finance Media Exemption and SCOTUSblog Press Credentials<http://electionlawblog.org/?p=44849>
Posted on November 28, 2012 9:41 pm<http://electionlawblog.org/?p=44849> by Rick Hasen<http://electionlawblog.org/?author=3>

Read this<http://opinionator.blogs.nytimes.com/2012/11/28/press-clips/>.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29> | Comments Off


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Rick Hasen
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