The First Amendment is the lifeblood of the press. Yet most newspapers—the one you are reading is a notable exception—take an editorial position similar to that of the Times. Why? "I think that two things are at work," Mr. Abrams says. "One is that there are an awful lot of journalists that do not recognize that they work for corporations....
"A second is an ideological one. I think that there is a way of viewing this decision which...looks not at whether the First Amendment was vindicated but whether what is simply referred to as, quote, democracy, unquote, was vindicated. My view is, we live in a world in which the word 'democracy' is debatable...It is not a word which should determine interpretation of a constitution and a Bill of Rights, which is at its core a legal document as well as an affirming statement of individual freedom," he says. "Justice Potter Stewart . . . warned against giving up the protections of the First Amendment in the name of its values. . . . The values matter, the values are real, but we protect the values by protecting the First Amendment."
A third factor surely is that McCain-Feingold exempted media corporations from its strictures against electioneering. Under this regime, free speech was not a constitutional right but a privilege granted by Congress to companies like those that own the Times and the Journal, but denied to other businesses, labor unions and nonprofit advocacy corporations.
Taranto also brought up the curious case of the ACLU:
Another corporation whose speech was chilled by McCain-Feingold was the American Civil Liberties Union. In his 2005 book, "Speaking Freely: Trials of the First Amendment," Mr. Abrams reports that during the 2004 campaign, the ACLU "broadcast advertisements denouncing the Patriot Act but refrained, as McCain-Feingold required, from criticizing (or even mentioning) President Bush as it did so." Writing for the court in Citizens United, Justice Anthony Kennedy noted that if the ACLU "creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech," it would be guilty of a felony under McCain-Feingold.
Yet even though the ACLU filed a friend-of-the-court brief urging the justices to rule as they did, its Web site has been silent on the decision.
Abrams recently appeared before an ACLU panel trying to talk them out of the notion of reversing their opposition to limits on corporate free speech.
