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NY Times’ lawyer takes NY Times Editorial Board to task on Citizens United

NY Times’ lawyer takes NY Times Editorial Board to task on Citizens United

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.

Citizens United is one of the most demagogued decisions from the left. It is fodder for bumper stickers, Obama’s insults to the Justices at the State of the Union, and Elizabeth Warren’s DNC speech.

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.

Here’s the letter (h/t @andrewgrossman)(emphasis mine):

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.


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What’s kind of sad is that Abrams gets Citizens United when a LOT of “conservatives” simply do not.

People have rights. They can delegate those rights in the organizations they form. Those don’t even have to be formal organizations. If you, as a voter, buyer, investor…whatever…have the right to act in some way, your combination with others does not deprive you of that right.

So long as organizations are treated equally under the law, there is no threat whatsoever to our republic.

    Exactly. The only reason to protest “Citizens United” is to support unequal treatment before the law. Every cooperative must have equal rights, whether for-profit or non-profit, irrespective of their perceived benefit to society. The indefensible, selective favorable treatment afforded to certain classes of individuals and cooperatives has to end.

      Observer in reply to n.n. | November 27, 2012 at 4:35 pm

      Remember when the left mercilessly mocked Mitt Romney for saying corporations are people? The left just can’t seem to wrap their brains around the fact that corporations are, in fact, organizations of . . . people. And there is nothing in the First Amendment to the U.S. Constitution that gives Congress the right to make laws that deny people their right to free speech (or the free exercise of religion), just because they have organized themselves into corporations. But the left can’t, or won’t, accept that fact. Just last week, a federal distict court judge in Oklahoma ruled that Hobby Lobby, a Christian-run corporation, does not have the right to refuse to provide “free” contraceptives and abortion pills to its employees, because a corporation does not have First Amendment rights.

        The Left, especially in America, adheres to a narrative describing a selective reality. As they attempt to hide their true nature, their realization of left-wing (i.e. marginalization of individual dignity) ideology is, in many ways, far more perverse than similar ideologues who do not indulge in maintaining a pretense. They are following a path through progressive corruption to conclusive corruption.

    A legitimate threat to our republic is the influence of foreign interests and infusion of foreign funds through untraceable paths including small “donations” made through unverified credit cards.

    A legitimate threat to our republic is disenfranchisement committed through unverified and ineligible votes and voters, and covert misrepresentations and presentations of voting outcomes, which occur through multiple channels.

    A legitimate threat to our republic is progressive corruption sponsored through redistributive and retributive schemes. That is to say a selective treatment of individuals based on their democratic appeal.

    A legitimate threat to our republic is posed by individuals and cooperatives (e.g. The New York Times), which exploit an unearned reputation to manipulate perception in order to realize their preferred outcome.

    That said, with the unchallenged right of the government to debase our currency, it seems utterly ridiculous to primarily question the motives of individuals and cooperatives which consume real resources to make their voices heard.

    persecutor in reply to Ragspierre. | November 27, 2012 at 5:03 pm

    Unions are corporations, and if they have First Amendment rights, then for profit entities should have them as well.

    (But then again, it’s only protected speech when they agree with it.)

    NC Mountain Girl in reply to Ragspierre. | November 27, 2012 at 5:09 pm

    So long as organizations are treated equally under the law, there is no threat whatsoever to our republic.

    New York Times Corp v. Sullivan gave media organizations a dispensation from the normal rules of libel. Funny how the media never complains about that decision.

    At the time of Sullivan the national press enjoyed record high levels of trustworthiness in polls such as Gallup. Surveys today show reporters usually rank below used car salesman and TV evangelists. I do not think this is a coincidence. When the people you cover can no longer sue you for spreading falsehoods it becomes ever more tempting to succumb to the temptation to promote narratives that are not fully supported by the facts.

      Exactly. There must be accountability and the means to enforce it. This is accomplished through competing interests which keep the honest people honest and others from running amuck.

      Excellent observation!

      Sullivan DID carve out an exception for the press (in the single instance of liable law) in recognition of the essential role they PLAYED. Note the past tense.

      Since, the courts have been very mixed in granting that same exception to bloggers, in spite of the fact that they are serving in the role ONCE played by the Mushroom Media (as they now are).

      This is something the Supremes should harmonize.

        NC Mountain Girl in reply to Ragspierre. | November 27, 2012 at 11:42 pm

        Sullivan was a bully boy segregationist. He and his buddies had planned to use libel law to keep the northern press from covering racial stories in the South by suing in state court over every minor error. Even the Times’ counsel was surprised by the broad First Amendment grounds for the decision as most of their arguments had been on issues such as whether the Times even had sufficient connections to Alabama to support being sued in state court.

        I always thought it would be wonderfully ironic if Sarah Palin’s children sued another bully named Sullivan in a quest to legally define what actual malice looks like.

The Times won’t and can’t understand because they don’t want to understand. This is far more important to them than any governing principle of civil society, this is about the power and prerogative to dominate speech. To the Left, this is the be-all and end-all of everything.

MaggotAtBroadAndWall | November 27, 2012 at 3:21 pm

Floyd’s son, Dan Abrams, who started the popular Mediaite web site, wrote one of the most articulate explanations of what was actually decided in Citizen United after getting fed up with the way the media was apparently intentionally distorting the Supreme Court’s holding in the case and its impact. Worth a read.

This is arguing with idiots or idealogues.

The media and NYT is just the extension of the DNC.

Abrams, smart as he is, cannot get the Times editorial board to understand simple truths.

The NYT is a corporation. They should support political speech by corporations, as it is in their particular interest and a crucial component of a free press, but they don’t. Instead they support free speech only for those who agree to be propagandists for the the Democrat party.

What does that tell you, Mr. Abrams? It tells me that the parasitic left, having eaten their way into the Editorial board of the Times, is now advocating killing its host. In this editorial, the NYT editorialists are actually come to the point of advocating the end of the “free press”.

Good riddance to the Times, at least, because I predict this company dies faster than the larger institution. Happily so.