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A Very Good Day For New Media, and a Very Bad Day For Fairness Doctrine Enthusiasts

Thursday, January 21, 2010  |  posted by Hugh Hewitt

I have been reading Citizen United with an eye on its implications for new media and also for talk radio. Two key excerpts from Justice Kennedy’s opinion.

From p. 9:

Courts, too, are bound by the First Amendment. We must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.

From pp. 48-49:

Political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws…Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise First Amendment rights. Speakers have become adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle. Corporations, like individuals, do not have monolithic views. On certain topics corporations may possess valuable expertise, leaving them best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials.

Rapid changes in technology –and the creative dynamic inherent in the concept of free expression– counsel against upholding a law that restricts political speech in certain media or by certain speakers. Today, 30-second television ads may be the most effective way to convey a political message. Soon, however, it may be that Internet sites, such as blogs and social networking Web sites, will provide candidates with significant information about political candidates and issues. Yet [the challenged law] would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds. The First Amendment does not permit Congress to make these categorical distinctionsbased on the corporate identity of the speaker and the content of the political speech.

Two other key excerpts, these from the Chief Justice’s concurring opinion:

From p. 1

The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern. Its theory, if accepted, would empower Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations–as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of democracy.

The Court properly rejects that theory, and I join its opinion in full. The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer….

From p. 11

The fact that the law currently grants a favored position to media corporations is no reason to overlook the danger inherent in accepting a theory that would allow government restrictions on their political speech.

These opinions (and Justice Scalia’s on the Founders’ relevant views) provide great news for defenders of a wide-open public square full of robust messages and vigorous debate. It seems to me to also clearly evidence doom for the Fairness Doctrine should any ill-considered attempt to revive it spring up. Beyond that, restrictions on the blogosphere of the sort that the FTC is pushing are clearly in trouble.

I am off to teach Con Law, and will tell my students, like I will my radio audience today and clients tomorrow, that this is a great day for freedom. Corporations have to immediately begin to assess how to wisely use their newly restored freedom to speak in the public square and to do so about issues, candidates and elections. This is a huge moment in American history, and every CEO and captain of industry, from Steve Jobs and Bill Gates to the smallest start-up that just opened yesterday, now lead a corporation that has the unquestioned right to speak its mind effectively on the issues confronting America. Now they just need to do so wisely and effectively, and hopefully in defense of the system of democratic capitalism that has allowed America such great prosperity and such great capacity for good.

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