Floyd Abrams, a senior partner at the law firm I worked at right out of law school, wrote a Letter to the Editor of The New York Times explaining why the Times got it wrong in attacking Justice Alito’s defense of Citizens United.
Abrams takes that demoagoguery to task. And his letter actually was published … maybe because he has represented the Times in some of its highest profile litigation.
To the Editor:
“Justice Alito, Citizens United and the Press” (editorial, Nov. 20), criticizing Justice Samuel A. Alito Jr.’s defense of the Supreme Court’s Citizens United ruling, misapprehends the nature of The Times’s own great victories in cases such as the Pentagon Papers and New York Times v. Sullivan.
You state correctly that in neither case did the court make anything of the fact that The Times is a corporation. But that is the point. In those cases, as in Citizens United, political speech was held protected regardless of who was speaking or what its corporate status was. As Justice Anthony M. Kennedy explained in Citizens United, “the First Amendment protects speech and speaker, and the ideas that flow from each.”
The law at issue in Citizens United permitted The Times to endorse candidates while making it a felony for nonmedia corporations to do so. It made it a crime for a union to distribute your endorsement of President Obama for re-election to its members. It should come as no surprise that the same First Amendment that was held to shield the press in landmark cases of the past now shields such speech as well.
New York, Nov. 20, 2012
The writer represented The Times in the Pentagon Papers case and Senator Mitch McConnell in the Citizens United case.
Abrams’ explanation is similar to that of James Taranto at The Wall Street, The Privilege to Speak:
The Times Co. wants itself and similar corporations to enjoy a monopoly on free speech.
See also, Abrams’ explanation of why Bradley Manning and Julian Assange are not comparable to Daniel Ellsberg in the Pentagon Papers case, WikiThieves And False Analogies.