Burger's Blast

Free-speech ruling stirs a row

Turn-of-the-century progressives and populists championed the statewide referendum as a way of giving the little man a voice on political issues. Thus the idea of allowing lavish spending by big corporations to sway the outcome of a referendum would probably make the likes of Robert LaFollette twist in their graves. But last week the Supreme Court gave corporations the go-ahead to spend whatever they please. The court's reason? Corporations have at least one thing in common with the individual: the right to speak out on governmental issues.

By a 5-to-4 vote, the court struck down a Massachusetts law forbidding corporations to use their funds to influence a referendum that did not notably affect their business or property. Writing for the majority, Justice Lewis Powell rejected a state court opinion that corporations do not enjoy full First Amendment protection. The decision permits two Boston banks and three corporations to spend freely on any political matter.* Because speech comes from a corporation rather than a person does not deprive the firm of First Amendment guarantees, explained Powell.

Vigorously dissenting, Justice Byron White insisted that allowing corporations to spend money on political issues unrelated to their business would harm free speech. Corporate money, wrote White, can drown out individual expression. To defeat antinuclear-power referendums, he noted, firms in California outspent the opposition by $2.5 million to $1.6 million; in Montana, corporations raised $144,000 to their foes' $450.

To White's fear that corporations would use their power to dominate referendum debates, Powell responded that the same could be said of news organizations, whose First Amendment rights are unquestioned. Powell's comment on the power of the press was almost an aside. Filing a concurring opinion, Chief Justice Warren Burger aired the same view in an eight-page essay that at times bordered on a polemic. "Modern media empires" enjoy "vastly greater influence" than most banks or corporations, stated Burger. They "pose a much more realistic threat to valid interests."

Explaining that his comments were intended to "raise some questions likely to arise in this area in the future," the Chief Justice gave an unusually forthright exposition of his philosophy of the First Amendment. The press, Burger declared, has no greater right to free speech than anyone else. Though the First Amendment prohibits Congress from "abridging the freedom of speech, or of the press," he continued, the words "freedom of the press" add nothing fundamental to the words "freedom of speech." Burger found no evidence that the framers of the Constitution intended "special" or "institutional" safeguards for the press. He further maintained that "media conglomerates" were becoming indistinguishable from other large corporations by branching out into businesses unrelated to news dissemination. He specifically cited pulp mills (as in the case of the New York Times, among others) and pulp timberlands (as in the case of Time Inc., among others). In a somewhat gratuitous swipe that he admitted was of no constitutional relevance, he noted that media conglomerates are no more "virtuous, wise or restrained in the exercise of corporate power" than any other corporation.

Basically, Burger seemed to be saying two things: that media conglomerates are corporations and if they enjoy free speech, so should any other corporation; and that there is no basis to the argument that news organizations should enjoy "special and extraordinary privileges or status" under the First Amendment.

Many journalists would readily concede Burger's point that the press possesses no special corner on virtue, wisdom or restraint. But he also maintains that a corporation whose principal and openly stated business is publishing news is guaranteed no more protection than any other corporation. Many newsmen -and some constitutional lawyers -would surely dispute that point. qed

* The decision will also affect laws prohibiting or limiting corporate spending on ballot issues in perhaps as many as 17 states besides Massachusetts.

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