Defending Citizen’s United
I generally sympathize with the liberal contingent on the supreme court but I think this [defense](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/05/26/citizens-united-media-corporations-and-other-corporations/ of Citizen’s United is right) on.
Now I’m open to arguments against Citizens United but if you are going to criticize the opinion the burden is on you to identify a good bright line rule (to prevent gradual erosion of rights) that provides newspapers and other journalism with the kind of protection we think they deserve without handing the government the ability to distinguish responsible journalists from mere non-profits/pacs/etc..
I’ve long supported Citizens United but what this post very helpfully pointed out is the extent to which every justification to restrict Citizens United style corporate speech has applied to restrictions on journalism/editorials. Cities with a single large newspaper surely had as much reason to worry about that newspaper using it’s power in a last minute attempt to sway the election than we have to worry about corporate money in politics.
Now, I agree that responsible journalists have a special role to play in the electoral process. I’m NOT worried about the New York Times doing something dastardly. However, I most certainly do not want Trump’s administration deciding who is a journalist as opposed to an advocate of some corporate interest, Yes, as the Citizens United dissent points out we sometimes adopt balancing tests for constitutional rights and we could adopt one here. But balancing tests tend to follow the political wind and if free speech is to serve as a bulwark against tyranny and patriotic group think that’s not good enough for core political speech.
Moreover, think about what would happen if Citizens United was overturned and one adopted some kind of test to distinguish media companies or genuine journalism from other corporate speech. I think the natural response to such incentives would be to further obscure whether or not you were engaged in journalism. In other words companies would cloak themselves in the trappings of a media company/genuine journalist to avail themselves of the greater free speech rights further worsening the problem of fake news. The courts would then have to either accept the trappings of media/journalism as valid on their face (encouraging such deception) or engage in a dangerous substantive investigation of whether a company counts as a `real’ journalism company.
Originally published at Rejecting Rationality.