[EL] Cruz op-ed on proposed constitutional amendment

[Paul Ryan]

It's also probably worth mentioning that the FEC concluded less than 6 months after the SCOTUS decision in Citizens United that Citizens United's "costs of producing and distributing its films, in addition to related marketing activities, are covered by the press exemption" in FECA.  AO 2010-08.  So the constitutional amendment intended to reverse the Citizens United decision would not regulate the very activities of Citizens United that gave rise to the lawsuit.  I'm a bit surprised that this detail is seldomly mentioned in discussion of SJ Res 19 and the various other amendment proposals that contain press exemptions.

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From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Justin Levitt
Sent: Wednesday, June 04, 2014 5:48 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Cruz op-ed on proposed constitutional amendment

John mentions that "Press" as used in the First Amendment refers to a means of communication, not a particular industry.  Eugene Volokh's made the same point, and persuasively so.

But "press" as used in SJ Res 19 hasn't been construed yet, and we're not sure how "press" as used in a wholly-hypothetical 28th Amendment would be construed.  The sponsors seem to believe that it refers to an industry.  (The problems with defining the contours of said industry are, of course, legion.)  And it's a little hard to believe that courts would construe section 3 of an amendment to "undo" much of section 1 of that same amendment.

The broader point is that a new amendment yields new construction -- some of which may be consistent with past constructions of other portions of the constitution, some of which may not.  Amending the document amends the document.

(FWIW, I'm not a fan of the new amendment either.  The "press" issue is just one reason.)

Justin




On 6/4/2014 2:32 PM, Rick Hasen wrote:
Message from John White, who is having trouble posting:
From: John White
Sent: Wednesday, June 04, 2014 1:39 PM
To: 'law-election at uci.edu<mailto:law-election at uci.edu>'
Subject: RE: [EL] Cruz op-ed on proposed constitutional amendment

It seems that section 3 undoes the rest of the proposed amendment at the federal level.  "Press" as used in the First Amendment refers to a means of communication, not a particular industry - in much the same way as it prohibits restriction on speech.

However, the proposed amendment's limitation on abridging freedom of the press is not extended to the states.



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