News media issue affects corporate speech decision

When the Supreme Court turned campaign-finance law on its head today with its decision in Citizens United v. F.E.C., the justices said they were partially influenced by the example of media companies that publish news and commentary about elections, even though they are exempt from the provisions at stake in the case.

Justice Anthony Kennedy, writing for the majority, found that the "antidistortion rationale" — the theory that big corporations will distort the public discussion of campaign issues because of their accumulated wealth — could actually be used by Congress to directly restrict speech by the news media, if upheld by the Court.

"Under the Government’s reasoning, wealthy media corporations could have their voices diminished to put them on par with other media entities," he wrote. "There is no precedent for permitting this under the First Amendment."

The antidistortion rationale was relied upon by the Supreme Court in the 1990 case Austin v. Michigan Chamber of Commerce, which was directly overruled by today’s decision.

Kennedy found that the very existence of a news media exemption in the campaign finance law undermines the argument, because the news media’s size and power would distort public discussion as much as other corporations, and exempting the media thus fails to remedy the problem.

"The law’s exception for media corporations is, on its own terms, all but an admission of the invalidity of the antidistortion rationale," Kennedy wrote.

Kennedy rejected the idea that a media exception to the law can make it constitutionally acceptable.

"There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not," he wrote. (The First Amendment does, however, specifically protect the freedom of the press independently of the freedom of speech.)

The Reporters Committee had filed a friend-of-the-court brief specifically arguing that a constitutionally based exception for the news media, broadly defined to include any mode of communication, could make the restriction on other corporate speech acceptable.

"This Court should craft the press exemption based on the intent of the news organization to gather and disseminate news to the public, rather than a mere description of its mode of transmission," the Reporters Committee argued, drawing a line between corporations that communicate news to the public and those that primarily seek to profit from commerce.