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Bench Memos

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Ban the New York Times?



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In an editorial today, the New York Times asks, “What constitutional rights should corporations have?”—by which it seems to mean, “What constitutional rights should the Supreme Court recognize corporations to have?”  Alleging, on negligible evidence, that “the John Roberts court …. has been on a campaign to increase corporations’ legal rights,” the paper opines that the rights of corporations “should be quite limited—far less than those of people.”  On matters of speech, the editorial acknowledges only that it is “in society’s interest that [corporations] are allowed to speak about their products and policies.”

 

I may well share much of the Times’s general skepticism about the existence of corporate constitutional rights—except (and this may be a big “except”) insofar as such rights are derivative of the underlying individual rights of shareholders or of corporate officers and employees.  But as Eugene Volokh points out in a couple of posts (here and here), what’s really striking about the Times editorial is the Times’s apparent obliviousness to the consequences of its position for itself.  Noting that the Times is owned by a corporation, Volokh states:

 

Where would the arguments in the New York Times editorial leave the New York Times itself? Shouldn’t New York Times v. Sullivan (the landmark libel case) and New York Times v. United States (the Pentagon Papers case), for instance, have come out the opposite way under the Times’ analysis? ….

 

[A] business corporation [the Times] is publishing a political message arguing that business corporations shouldn’t have the constitutional right to publish political messages, without even (1) mentioning that its argument would apply to itself, and (2) explaining why, despite that, the argument should not apply to itself.


Tags: Whelan


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