The Claim that the Media is Rigging the Election — and Citizens United

Elsewhere, I’ve addressed the current claims that the election might be rigged through modern-day equivalents of old-fashioned ballot-box stuffing. Here, I want to consider the other current claim being made: that the mainstream media is rigging (or attempting to rig) the election, as Trump, Pence, and other supporters of their ticket are claiming.

My first reaction to this claim was straightforward: the freedom of speech being exercised by the media couldn’t possible “rig” an election, because freedom of speech is essential to the functioning of a democracy. Free speech, far from rigging an election, promotes the fairness of elections by monitoring the voting and counting process to assure its accuracy and its compliance with the relevant rules.

While my follow-up thoughts are fully consistent with this initial reaction, I now think there is more that is worth considering on this point — and it relates to the public debate over the propriety of the Citizens United decision.

As I understand it, the Trump-Pence argument that the media could be rigging the election depends on the proposition that the media is improperly distorting the electoral process by persuading voters of the pernicious ideas that the media is disseminating. Persuasion must be the mechanism of the alleged “rigging” because the media is not paying voters to cast their ballots for a particular candidate (which would be a different type of mechanism for “rigging” the election). Perhaps part of the claim is that major media outlets (like CNN?) have some kind of monopoly position in the marketplace idea, which gives them an unfair advantage in the effort to persuade voters of what to think; but this kind of monopolization claim seems increasingly untenable given the diversity of media sources available to voters, who can choose whatever outlets they wish in an effort to gather information and develop their opinions.

Insofar as the media-rigging claim depends on the media’s being effective in persuading voters, it is indeed a claim that is antithetical to the very premises of the First Amendment and the role that free expression plays in a democracy. Voters are entitled to be persuaded by whatever expression convinces them. If you disagree with the message that the media is sending to voters, then send the voters a different message of your own: the remedy for “bad” speech is counter-speech, and it is up to the voters to decide what to believe. And in this regard, of course, the media is not monolithic. If CNN is “slanted” in its particular point of view, then watch Fox for a different perspective. Likewise, read the Wall Street Journal and not the New York Times, if you think the Times is unduly liberal.

Now for the relevance of Citizens United: insofar as the attack on that decision rests on the premise that corporate-funded speech will distort the electoral process by persuading voters of its message, it seems the same sort of argument that Trump and Pence are making with respect to the media’s capacity to influence what voters think. To be sure, there might be different types of arguments for attacking Citizens United — that corporate money, for some reason, should be off-limits in the process of persuading voters what to think. But if one rejects the idea that CNN and the New York Times are capable of rigging the election because the messages they send to voters about the competing candidates, then presumably to be consistent one should equally reject the idea that Citizens United and other corporations are capable of improperly distorting the electoral process because of the messages these other corporations send to voters.

Conversely, defenders of Citizens United should be taking the lead in condemning the Trump-Pence claim that the media is currently rigging the election because of its messages about the candidates. The First Amendment reasoning that underlies Citizens United rules out the Trump-Pence position on this issue.

One final thought: it seems to me that a well-functioning democracy requires some shared premises among the competing political parties about the nature of the democratic process itself. While the parties compete to win, they agree upon some basic ground rules. One of those basic ground rules, it seems to me, used to be the background condition of free expression as the basis upon which competing parties and groups will attempt to convince the electorate of the correctness of their respective positions. Perhaps, however, like so much else about the electoral process in this strangest of election years, the shared understanding of the role that free speech plays in a democracy is being frayed. If so, then let’s hope that after this election we can begin a process of civic renewal that will enable restoration of the shared premises that are essential to a well-functioning democracy.

This post originally appeared at Prawfsblawg.