Justice Antonin Scalia called the Supreme Court’s ruling in favor of a campaign finance bill “a sad day for free speech.” He said the ruling “cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.” Justice Clarence Thomas called it “the most significant abridgement of the freedoms of speech and association since the civil war.” But the New York Times and Washington Post were ecstatic over the decision. The Times called it “a stunning victory for political reform,” while the Post said it was “cause for celebration.”
Why would the Times and Post, which operate under the First Amendment, celebrate a ruling that those justices say violates the First Amendment? The answer is simple: the Times and Post are not subject to the restrictions on the First Amendment that are in the legislation. The bill prohibits certain groups and corporations from broadcasting advertising against federal candidates one or two months before an election. But media corporations like the Times and Post are exempt. As Justice Anthony Kennedy put it, the bill provides a “safe harbor” to “the mainstream press.” He said the legislation “is the codification of an assumption that the mainstream media alone can protect freedom of speech.”
The ruling and the media reaction prove that old saying, “freedom of the press belongs to those who own one.” But Justice Thomas warned that the reasoning of the court could in the future be extended to the media. He noted that, “Media companies can run pro-candidate editorials as easily as non-media corporations can pay for advertisements.” So if Congress can restrict or ban the ads, why not the editorials?
Thomas noted, “Media corporations are influential. There is little doubt that media companies often wish to influence elections. One would think that the New York Times fervently hopes that its endorsement of presidential candidates will actually influence people. What is to stop Congress from determining that the press is ‘too influential,’ and that the ‘appearance of corruption’ is significant when media organizations endorse candidates or run ‘slanted’ or ‘biased’ news stories in favor of candidates or parties?” He said there was nothing in the court decision “that would prevent Congress from imposing the Fairness Doctrine, not just on radio and television broadcasters, but on the entire media.”
The freedom of the press, Thomas said, “could be next on the chopping block.” He added, “Although today’s opinion does not expressly strip the press of First Amendment protection, there is no principle of law or logic that would prevent the application of the Court’s reasoning in that setting. The press now operates at the whim of Congress.”
The Times, Post and other media obviously believe they can prevent Congress from restricting their own activities. In the meantime, they have succeeded in reducing the ability of ordinary citizens and their organizations to influence the outcome of elections through independent advertising campaigns, while increasing their own power.