From reading New York Times editorials, I gather that the First Amendment protects celebrities who curse on TV and pit bull enthusiasts who sell dogfighting videos. Yet somehow it does not protect conservative activists who hate Hillary Clinton, Christian student groups that exclude people who engage in extramarital sex or petition-signers who fear harassment if they are publicly identified as opponents of gay marriage.
Like the Times, I cheered last week when the Supreme Court overturned the federal ban on depictions of animal cruelty, which was worded broadly enough to cover hunting magazines, bullfight footage and maybe even "Conan the Barbarian." And I agree that the Federal Communications Commission’s vague and arbitrary "indecency" regulations, which impose multimillion-dollar fines on broadcasters who accidentally offend bureaucratic sensibilities, should meet the same fate.
Still, I have to admit that political criticism, religious association and ballot initiatives are closer to the heart of the First Amendment than Cher’s expletives or "Japan Pit Fights." The distinctions drawn by the Times are therefore hard to justify on constitutional grounds. They make more sense if you assume the paper’s editorialists are not eager to defend people’s rights when they have trouble identifying with them.
Although the Times does not broadcast music award ceremonies or sell dogfighting videos, newspapers are understandably sensitive to restrictions on the speech of media outlets. But why did the Times, which is owned by a corporation, support limits on what Americans organized as corporations can say about politicians?
Possibly because those restrictions included an exemption for media corporations. The exemption covered officially recognized news organizations such as the Times but not uncredentialed competitors like Citizens United, which produced the anti-Clinton documentary that the Times thought should be banned from TV until after the 2008 presidential primaries.
Like Citizens United, the Christian Legal Society is not a group that Times editorialists are inclined to like. But the society has a strong claim that Hastings College of the Law, by preventing officially recognized student groups from demanding that voting members adhere to traditional principles of sexual morality, violates the First Amendment right to organize with like-minded individuals in furtherance of one’s beliefs.
Since Hastings is part of California’s state university system, that policy means the government is favoring certain beliefs over others. Yet when the Times editorialized on the case (which the court heard this week), the only discrimination it perceived was the student group’s exclusion of homosexuals and non-Christians.
The Times was similarly dismissive of the concerns raised by opponents of gay marriage in Washington, who this week asked the court to rule that the state must protect the privacy of people who sign petitions that qualify initiatives for the ballot. The Supreme Court has recognized that the ability to speak anonymously is protected by the First Amendment and that forced disclosure of one’s political views can have a chilling effect on speech, a phenomenon confirmed in recent research by the Institute for Justice.
Verifying signatures does not require public disclosure, and the Washington petition-signers have good reason to fear the repercussions of revealing their support for a 2009 initiative aimed at overturning a domestic partnership law. In California, people who donated to the campaign for a 2008 initiative that banned gay marriage faced harassment, death threats, vandalism and loss of their jobs.
But according to the Times, the names and addresses of petition-signers must be publicized because "putting an initiative on the ballot is an important governmental act." Since the same could be said of deciding whether an initiative will be enacted, a process shielded by the privacy of the voting booth, it seems likely that the paper’s position in this case is driven by something other than law and logic.
When it comes to criteria for selecting Supreme Court justices, the Times reports, "empathy is out." But it may be the key to understanding the paper’s inconsistent defense of the First Amendment.