Cover on Trial
We should all be grateful for the wisdom of those who gave us the First Amendment to the Constitution of the United States. Among other things, it guarantees my favorite magazine the right to publish articles like Lincoln Caplan’s “The Embattled 1st Amendment” (Spring 2015). Caplan’s piece is in part a scholarly essay on the history of judicial interpretation of the amendment, and in part a diatribe about the Supreme Court’s opinion in the Citizens United case. Nothing new here—it has all been said before.
What I am not grateful for is the exceedingly bad taste of the magazine editors in producing the front cover of the issue: a picture of five Supreme Court justices (unflattering to begin with), with a blazing title of
COMPANY MEN, followed by the subtitle “Free Speech Goes to the Highest Bidder.” The implication is not even subtle—these five justices (the majority in Citizens United) must be politically or actually for sale, or they could never have written such an opinion. (Fortunately the magazine is protected by prior Supreme Court First Amendment decisions from the libel suit that should follow from such nonsense.)
However much we may disagree philosophically with the Court’s majority in this or any other case, there is no room in a civilized discussion for these kinds of innuendoes; that Caplan is a member of the magazine’s editorial board is even more reason why his views do not warrant such editorial excess. Even Caplan recognizes that this one case, with its arguable consequences for electoral funding, may not be the last word on the issue—as he notes, First Amendment jurisprudence is more pragmatically based than theoretically moored. You owe the justices an apology, and your readers a correction.
S. Jay Plager
Circuit Judge, U.S. Court of Appeals, Federal Circuit,Washington, D.C.
I was surprised and disappointed to see the cover of your Spring 2015 number. If Lincoln Caplan or the Scholar believes the Court’s decision in Citizens United was incorrectly decided, of course you have the right to say so and point out whatever made it a lousy opinion for the Court. You also have the right to suggest the five Justices in the majority were bought and sold to the “highest bidder.” I do think, however, that the implication of venality imputed to the five justices by the language on your cover is rather conspicuously beneath the standards of journalism I have come to expect from the Scholar. In other words, your cover suggests the majority were “on the take,” and there’s nothing in Caplan’s article to support that accusation. I don’t ever recall seeing any reputable publication accusing five justices of the Supreme Court of a felony, and it was a mistake for you to do so.
Stephen J. Fearon
New York City
Caplan does a fine job reviewing the judicial history related to First Amendment cases; it was educational and reasonably neutral regarding his opinion about those decisions. That said, the cover is a disgrace: the
Scholar publishes for a general readership, true, but it is also an organ of the Phi Beta Kappa Society and thus represents more than the editorial staff. To display the four originalist justices and one “swing” voter over COMPANY MEN with a subheading “Free Speech Goes to the Highest Bidder” is breathtakingly libelous. I am surprised you put Caplan’s name under it, or that he allowed it.
W. McA. Davis
Spartanburg, South Carolina
I fully approve of your cover—this Supreme Court majority is truly the worst, the most mendacious, the most arrogant, the most narcissistic since the wretched crew who decided the Dred Scott case in 1857, and its reasoning in Citizens United is as twisted and farcical as Roger Taney’s infamous decision in Dred Scott. The Dred Scott Supreme Court majority could have been justly characterized as “slavery men,” and that’s exactly how Lincoln characterized them. Today’s out-of-control group of justices twists the Bill of Rights (through a ludicrous reading of the First Amendment), just as Taney twisted the Bill of Rights through his reading of the Fifth Amendment. Citizens United must be overturned by a constitutional amendment, just as Dred Scott was overturned by the Thirteenth Amendment.
I found it interesting that Lincoln Caplan mentioned the 1976 Virginia State Pharmacy Board v. Virginia Citizens Consumer Council decision, which determined that the First Amendment applies to commercial speech, but neglected to provide more details. The sole dissenter was a conservative judge, William Rehnquist. That court, consisting of an almost even distribution of liberals and conservatives, basically “let the genie out of the bottle.” And the current court has followed that decision with an even broader definition of free speech. I doubt there will be a repeal any time soon.
Lincoln Caplan distorts the meaning of the Citizens United decision by presenting it merely as ensuring First Amendment rights of for-profit corporations. The decision also supports the same rights for labor unions and nonprofit corporations. It makes no sense to maintain that Americans have First Amendment rights as individuals but when they band together in groups for whatever purpose, they lose such rights.
The American Civil Liberties Union supports the Citizens United decision and notes that for-profit corporations have made scant use of the decision to promote political candidates. Most of the millions spent on political candidates under Citizens United have come from wealthy individuals through the so-called super-PACs—nonprofit groups.
Newspapers, radio and TV networks, and many magazines are owned by for-profit corporations. No one challenges the rights of newspapers to endorse candidates or publish reports that seem to favor some over others. It would be difficult to maintain that this material has less effect on election outcomes than even the prodigious spending by the super-rich. Does anyone seriously contend that corporations should be required to own a newspaper or TV network in order to enjoy First Amendment rights?
Carl H. Zimmerman
Lincoln Caplan responds:
After I finished writing “The Embattled 1st Amendment,” two articles were published elsewhere that respond in helpful ways to points made in these letters.
In March, online in the Harvard Law Review Forum, Amanda Shanor and Robert Post published “Adam Smith’s First Amendment,” about the expansion of commercial speech far beyond what it was intended to protect, now including “the unregulated operation of the laissez-faire commercial marketplace.” Through an analysis of Edwards v. District of Columbia, a 2014 decision in which the U.S. Court of Appeals for the District of Columbia struck down D.C.’s licensing requirement for tour guides, the article explains how the First Amendment has become a tool for challenging “commercial regulations, in matters ranging from public health to data privacy,” and is transforming the amendment from a guardian of democracy into “a straitjacket for our institutions of democratic governance.”
In February, John C. Coates IV, a professor at Harvard Law School and a former lawyer for corporations, posted “Corporate Speech and the First Amendment” on the Social Science Research Network. He puts the point even more strongly by saying there has been a “corporate takeover” of the amendment. He analyzed Supreme Court cases dealing with the amendment from 1946 through 2014, with 1976 a dividing line, the year the Court created the doctrine of commercial speech in the Virginia Pharmacy case. “Prior to that case, business won 20% of its First Amendment cases, compared to a 41% win rate for individuals. After Virginia Pharmacy, business and individual win rates were roughly equivalent at 55% each.” Importantly, Coates notes, “Both absolutely, and relative to individuals, business has been involved in significantly more First Amendment cases at the Supreme Court in the thirty-eight years since Virginia Pharmacy than in the prior thirty-eight years.”
He concludes: “Nearly half of First Amendment legal challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals. Such cases represent examples of a particular kind of corruption, defined here as a form of rent seeking: the use of legal tools by business managers in specific cases to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees, and in aggregate to degrade the rule of law by rendering law less predictable, general and clear. This corruption not only risks the loss of a republican form of government emphasized by most critics of Citizens United, but also risks economic harms—a package of risks one could call (with some but only some exaggeration) ‘the risk of Russia.’ ”
The Coates article explains and documents as never before how much the Supreme Court is favoring corporate interests in First Amendment cases—and why “Company Men” is warranted as a frank cover line for the magazine.
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