In the 2010 case Citizens United v. Federal Election Commission, the US Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to spend unlimited amounts of money independently in political campaigns. The Court rested its five-to-four decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”
To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction—the treatment of news media corporations. The Court began by asserting that allowing regulation of corporate speakers but not of non-corporate speakers would permit the government to limit the speech of media corporations—a thought that the majority called “dangerous, and unacceptable.” The campaign finance law in question, however, included an exemption for the news media, thus protecting the rights of the press. But the Court found the media exemption to be problematic because it treated some corporations differently than others. This favoritism of media corporations, in the Court’s view, would also amount to unconstitutional speaker discrimination. To the Citizens United majority, therefore, the news media corporation example settled the question on corporate speech rights. Under this example, a campaign finance law restricting corporate spending that exempted the news media would be unconstitutional speaker-based discrimination, but a law lacking such an exemption would open the door to regulation of the news media.
But was the Citizens United Court correct about the media corporation dilemma? Is the government no more able to regulate the expressive activities of Exxon Mobil Corporation than those of the New York Times Company? Must all speakers be treated uniformly whether or not they are members of the press? And does the First Amendment’s Press Clause (and not just the Speech Clause) play a role in this analysis?
In this Article, I challenge the claim that the First Amendment prohibits the government from treating the press differently than other speakers. Rather than banning such distinctions, the Press Clause traditionally has supported differential treatment of the press. History, court precedent, and legislative practice, moreover, demonstrate how favoritism of press speakers has been condoned and often encouraged.
This debate over the meaning of the Press Clause could have significant ramifications for the future of our free press. A jurisprudential drift of press rights away from protecting core press functions and toward constraining the government’s ability to recognize the unique role press speakers play in our democracy could significantly threaten the vital structural safeguards of the Fourth Estate.