The First Amendment

The ground on which the 2010 electoral campaign will be fought just got a little clearer or murkier, as you prefer. The world turned just a little more upside down. Real Clear Politics reports that Fox News audience numbers continue to climb while Air America has declared bankruptcy. “According to Neilsen, Fox News drew an astonishing 6.2 million total viewers during primetime Tuesday night, compared to only 1.5 million for CNN and 1.1 million for MSNBC.” But it is not just the shifts within the industry that are tectonic.  The whole scene has been disturbed by a Supreme Court decision.


The Supreme Court overturned “Austin v. Michigan Chamber of Commerce, in which a 6-3 majority led by Justice Thurgood Marshall found that the public interest in fighting corruption justified such restrictions on corporate political expenditures”. By overturning Austin, the USSC materially reduced the power of the FEC over political debate and opened the gates wide to organizations other than media enterprises to enter into the fray.

The majority said that “Campaign finance regulations now impose ‘unique and complex rules’ on ’71 distinct entities.’ These entities are subject to separate rules for 33 differenttypes of political speech. The FEC has adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975. … “These onerous restrictions thus function as the equivalent of prior restraint by givingthe 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.” …

The minority of Justices Stevens, Ginsburg, Breyer, and Sotomayor, however, seemed to see corporate speech as a threat to democracy, and emphasized that corporations are different from people and have different rights. … The minority was particularly concerned about what it depicted as the threat of foreign owned corporations influencing American elections. “The majority never uses a multinationalbusiness corporation in its hypotheticals,” it said, warning, “it is gutting campaign finance laws across the country, as the Court does today, that will be destabilizing.”


Not that corporations haven’t been able to buy a megaphone until now. They always could, but before this they had to buy a media corporation. This was perceived as a time-hallowed exception. The Volokh Conspiracy looks at the question of whether the dissenting Justices were correct in arguing that news organizations were heretofore a special kind of corporation.

“The text and history [of the First Amendment] highlighted by our colleagues suggests why one type of corporation, those that are part of the press, might be able to claim special First Amendment status, and therefore why some kinds of ‘identity’-based distinctions might be permissible after all.

Even so non-news corporations could easily circumvent the argument by buying up an outlet. MSNBC is largely owned by GE. Fox is owned by the multinational News Corporation.

NBC Universal is owned by General Electric (80%) and Vivendi SA (20%). In December 2009, General Electric and the media conglomerate Comcast announced a buyout agreement for NBC Universal. After the pending transaction, Comcast will own 51% of NBC Universal while GE will own 49%. As a part of the deal, GE will buy out Vivendi’s 20% stake in the company. …

Rupert Murdoch, the media magnate, apart of News Corp., also owns British News of the World, The Sun, The Times, and The Sunday Times, as well as the Sky Television network, which merged with British Satellite Broadcasting to form BSkyB, and SKY Italia; in the US, he owns the Fox Networks and the New York Post. Since 2003, he also owns 34% of DirecTV Group (formerly Hughes Electronics), operator of the largest American satellite TV system, DirecTV, and Intermix Media (creators of since 2005.


The chastity of political speech which the dissenting justices sought to preserve may long have been lost, even under the existing rules. Corporations and multinational interests have long had a role in the shaping the news and political commentary. And it is probable that they will continue to do so into the future. Whether Austin v. Michigan Chamber of Commerce will increase or lessen large scale influence on politics depends on whether more entrants into the fray will checkmate other behemoths or exacerbate their effect.

What it is almost certain is that the applecart has been upset; the carefully cultivated media channels upon which politicians relied have been jolted from their accustomed courses. The FEC will at a stroke have lost considerable power and the reorganization of communications under the new ground rules means that the old dowagers are likely to be tossed out by fresh new entrants into the talking head scene. The good news for those in the political communications game is that there will be a lot more money floating around in the election season. The bad news is that those who had counted on exploiting the relative monopoly of the traditional media are facing block obsolesence.

This clearly works against the administration, as the ideological split in the USSC vote would have indicated.  The big loser — on the face of things — seem to be the liberal politics so heavily invested in the old system.  The Scotus Blog reports that the administration will try to undo the Supreme Court decision by legislation. But Scotus Blog thinks it is doubtful there is much scope for it.


President Obama ordered his aides on Thursday “to get to work immediately with Congress” to develop “a forceful response” to the Supreme Court’s ruling in the Citizens United v. Federal Election Commission case. In a statement, the President denounced the decision, saying it “has given a green light to a new stampede of special interest money in our politics.” It was obvious, therefore, that he was interested in working with Congress to overturn the decision, or at least to narrow it significantly.

Unless he has in mind an amendment to the Constitution, however, it is most unclear at this point whether the lawmakers could do anything — or much of anything — to cut down on “special interest money” in American politics. This was a constitutional decision, laying down (essentially for the first time), a sweeping free-speech right in politics for “special interest” bodies of all types with the concept of “speech” clearly embracing spending money to influence election outcomes. If individuals have considerable freedom to express themselves politically, corporations, labor unions, and other “special interest” entities now do, too.

The old media has been under unrelentling assault from a series of technological, economic and environmental changes. Neither legislation nor subsidies are likely to save it. A much more promising strategy would be to throw the unpreservable legacy to the winds and build a wholly new system and industry consistent with the new technological and economic paradigms. Not all the King’s Men could piece Humpty Dumpty together after his fall. Maybe the best bet is encourage the geese to lay a new golden egg.


The financial crisis and international terrorism are two reminders that many late 20th century institutions are facing a fundamental challenge. We live in truly revolutionary times and perhaps none of us has any alternative except to join in the tide and see where it goes. Once upon a time screenwriters could write conviction about a settled world. Even their criticism of America was based upon the sense of immutable, chiefly Western evils. As a fictional old media executive once said in the movie Network:

Am I getting through to you, Mr Beale?

You get up on your little twenty-one inch screen and howl about America and democracy. There is no America. There is no democracy. There is only IBM and ITT and AT&T, and DuPont, Dow, Union Carbide and Exxon. Those are the nations of the world today.

Today General Motors is bankrupt, Exxon is less than a quarter of the size of the Nigerian National Petroleum Company, and CNN and MSNBC together have less than half the audience of Fox News.

Am I getting through to you Mr. Beale?

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