Rethinking Citizens United

This is the latest installment of a fascinating exchange of ideas at FIRE's First Amendment News. This installment was written by Ira Glasser, former Executive Director of the ACLU. This conversation was provoked by Florida's repeal of Disney's special tax status in response to Disney's criticism of Florida's Parental Rights in Education bill, misnamed the “Don’t Say Gay” law by many on the left.

I'm repeatedly struck by the ill-thought tactics of many people who try to mess with the First Amendment.  These tactics usually amount to "Free speech for me, but not for thee."  The First Amendment is a boomerang, however.  It is an equal-opportunity provision that doesn't (and shouldn't) care about who is speaking or the content of particular speech.  Your well-intended tweaks and restrictions of the First Amendment (here, in the form of Citizens United) can come back and hit you upside your head. What follows is an excerpt of Glasser's latest comment:

But two liberal law professors who had spent 12 years vigorously opposing the Citizens United decision — my longtime colleagues Burt Neuborne and Erwin Chemerinsky — leaped into the fray supporting the First Amendment right of the Disney corporation to express its views on that legislation and opposed the state’s attempt to retaliate. When I chided them for it in light of their long opposition to Citizens United, they responded with a blizzard of legal distinctions that, however interesting and important, were disconnected from the political realities that resulted in the broad law that Citizens United struck down, and unresponsive to my question.

Buried in that blizzard, however, was the answer to my question, almost as an aside: “Citizens United,” they now declare, “was rightly decided on its facts.”

Floyd Abrams then replied, saying he was startled to discover that they now said they believed that “Citizens United was rightly decided on its facts” because for 12 years, or ever since Citizens United was decided, they had vigorously and consistently criticized that decision as having been wrongly decided.

I, too, was startled. What had changed? Certainly, the facts of that case hadn’t changed since the case was decided. Moreover, if Burt and Erwin had ever before proclaimed that Citizens United had been rightly decided in the many public fora where they discussed that decision, I missed it, and apparently, Floyd Abrams did, too.

So if the facts of the case haven’t changed, what has?

We can only speculate.

But in any case, we now have two accomplished liberal law professors saying: 1) that Citizens United was rightly decided; and 2) that a business corporation like Disney has a First Amendment right to express its views on a contentious law.

I need to fall on the sword here too. I got caught up in the anti-Citizens United wave years ago and posted several regrettable posts (at this site) indicating positions I no longer hold.  The turning point for me was a very slow and careful read of the Citizens United opinion combined with sober consideration of impossible real world challenges we would have faced had Citizens United had been decided the opposite way.

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Things the Left-Leaning Media Refuses to Discuss

I enjoy listening to Tara Henley's podcasts, even though she unable to get along well with her former employer, the Canadian Broadcasting Corporation. Here is how Bari Weiss describes her departure from CBC:

The story of Tara Henley is the story of countless liberals. Until recently, they were the ones pushing everyone else to be more tolerant, more understanding, more open-minded, more compassionate. Then, something happened — call it ideological succession or institutional capture or the new illiberalism — and, all of a sudden (or so it felt to them), they found themselves to the right of their friends and colleagues. Their crime? Refusing to abandon their principles in the service of some radical, anti-liberal dogma. If you’ve been reading this newsletter, you know well what we’re referring to. (See under: Paul Rossi or Maud Maron or Dorian Abbot.)

And so it was with Henley, an accomplished Canadian journalist whose book, “Lean Out: A Meditation on the Madness of Modern Life,” kind of says it all. Last week, she resigned in style from the Canadian Broadcasting Corporation and struck out on her own here on Substack.

Henley's most recent article offers a list of many of the issues that left-leaning news media currently refuse to cover. The title to her article is "Meet the press: Why much of the media looks and sounds much the same."

Here’s a good place to start: Ask yourself how many liberal media pieces you’ve seen over the past two years that, say, interrogate COVID restrictions critically (especially early on, with school closures, lockdowns, and mask mandates). Or evaluate Black Lives Matter as a political movement, assessing its strengths and weaknesses. Or offer opposing viewpoints on transgender athletes in women’s sports; or mass immigration; or diversity, equity, and inclusion philosophies, trainings, or policies. Or acknowledge the excesses of #MeToo, or prejudice against the white working class. Or present critiques of identity politics. Or explore downsides of puberty blockers and gender transition surgery for teens; or delve into the growing censoriousness on social media and in education, Hollywood, the arts, and NGOs. Or probe inner city gun violence. Or reflect the positive sides of masculinity. Or talk about God. Or reference anything that’s currently deemed a conspiracy theory in non-derogatory terms (see: the lab leak theory). Or express genuine curiosity on the reasons behind the rise of independent media, whether that’s Joe Rogan or Substack.

This, I would argue, is the no-fly list. These are the tripwires.

I’ll admit that, months after leaving legacy media, I still feel an instinctive trepidation even running down this list — that’s how ingrained this is.

I would like an offer a concurring perspective from my work as a consumer attorney. Based on cases I have handled, the best way for a merchant to rip off a customer is to tell some truths (to gain some trust) but refuse to tell the full story. This is the same technique that an auto dealer uses when telling you that the brakes of a used car are "excellent" while simultaneously failing to disclose that the same car was in a flood or that the car's frame consists of two half-frames welded together in a chop shop. Failing to disclose material facts is such a powerful way to rip people off that almost every state has a consumer fraud statute that allows individuals to sue a business for financial damages resulting from such violations while advertising or selling services or merchandise (see this chart, which is helpful as an overview, even though from 2009).

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Paypal: Now in the Censorship Business

We can now celebrate that Paypal is in the business of censorship, making sure that we don't encounter news sources (such as Mint Press News) that Paypal considers inappropriate for us.

MPN has published writings of many people, some of whom I agree with some of the time, including Chris Hedges, who recently had this to say at MPN:

The ruling class, made up of the traditional elites that run the Republican Party and the Democratic Party, is employing draconian forms of censorship on its right-wing and left-wing critics in a desperate effort to cling to power. The traditional elites were discredited for pushing through a series of corporate assaults on workers, from deindustrialization to trade deals. They were unable to stem rising inflation, the looming economic crisis and the ecological emergency. They were incapable of carrying out significant social and political reform to ameliorate widespread suffering and refused to accept responsibility for two decades of military fiascos in the Middle East. And now they have launched a new and sophisticated McCarthyism. Character assassination. Algorithms. Shadowbanning. De-platforming.

Censorship is the last resort of desperate and unpopular regimes. It magically appears to make a crisis go away. It comforts the powerful with the narrative they want to hear, one fed back to them by courtiers in the media, government agencies, think tanks, and academia. The problem of Donald Trump is solved by censoring Donald Trump. The problem of left-wing critics, such as myself, is solved by censoring us. The result is a world of make-believe.

YouTube disappeared six years of my RT show, “On Contact,” although not one episode dealt with Russia. It is not a secret as to why my show vanished. It gave a voice to writers and dissidents, including Noam Chomsky and Cornel West, as well as activists from Extinction Rebellion, Black Lives Matter, third parties, and the prison abolitionist movement. It called out the Democratic Party for its subservience to corporate power. It excoriated the crimes of the apartheid state of Israel. It covered Julian Assange in numerous episodes. It gave a voice to military critics, many of them combat veterans, who condemned US war crimes.

Paypal thus joins GoFundMe as a corporate leader in the business of censorship (and see here):

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Why Liberal (and Conservative) News Media Stays in its Own lane

Tara Henley's newest article is "Meet the press: Why much of the media looks and sounds much the same." She makes some excellent points that apply to liberal news media as well as conservative media. Reporters appears to lost a sense of curiosity. Whatever happened to the childlike curiosity in these well-trained journalists? Has it been snuffed out? Unlikely, because reporters know how to attack viewpoints that threaten their world views. What they lack is motivation to examine bullshit emanating from their own tribe.

Why is this? Sometimes, editors are refusing to allow reporters to following their instincts to be curious. This is happening in many places, resulting in excellent reporters striking out on their own. This group includes Andrew Sullivan, Bari Weiss and Tara Henley.  There is a second less obvious reason: Many reporters feel internalized pressures to not ask certain questions. Henley offers this list of questions left-leaning reporters refuse to pursue:

Ask yourself how many liberal media pieces you’ve seen over the past two years that, say, interrogate COVID restrictions critically (especially early on, with school closures, lockdowns, and mask mandates). Or evaluate Black Lives Matter as a political movement, assessing its strengths and weaknesses. Or offer opposing viewpoints on transgender athletes in women’s sports; or mass immigration; or diversity, equity, and inclusion philosophies, trainings, or policies. Or acknowledge the excesses of #MeToo, or prejudice against the white working class. Or present critiques of identity politics. Or explore downsides of puberty blockers and gender transition surgery for teens; or delve into the growing censoriousness on social media and in education, Hollywood, the arts, and NGOs. Or probe inner city gun violence. Or reflect the positive sides of masculinity. Or talk about God. Or reference anything that’s currently deemed a conspiracy theory in non-derogatory terms (see: the lab leak theory). Or express genuine curiosity on the reasons behind the rise of independent media, whether that’s Joe Rogan or Substack.

Why are so many reporters afraid to be curious?

Often, it’s not a boss telling you what to cover, or how to cover it, but your colleagues, the mood in your newsroom, your competition, your Twitter feed, and, increasingly, your own anxieties. (And, just as important, what you are not being told. As writer Freddie deBoer has put it: “Everyone who works in the industry lives with a dim but persistent feeling that they have committed some kind of faux pas and are paying for it, but never know where, what, or why.”). Thus, consensus is manufactured in myriad small but insidious ways, and if you want to keep working you figure out the unspoken rules.

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