Like Fox News, The New York Times has a First Amendment right to spread misinformation about important public issues, and it is exercising that right in its campaign against the Citizens United ruling. In news stories, as well as columns, it has repeatedly mischaracterized Citizens United, explicitly or implicitly blaming it for allowing unlimited “super PAC” contributions from mega-rich individuals. In fact, Citizens United enabled corporations and unions to use general treasury funds for independent political expenditures; it did not expand or address the longstanding, individual rights of the rich to support independent groups. And, as recent reports have made clear, individual donors, not corporations, are the primary funders of super PACs. When I first focused on the inaccurate reference to Citizens United in a front-page story about Sheldon Adelson, I assumed it was a more or less honest if negligent mistake. (And I still don’t blame columnists for misconceptions about a complicated case that are gleaned from news stories and apparently shared by their editors.) But mistakes aboutCitizens United are beginning to look more like propaganda, because even after being alerted to its misstatements, theTimes has continued to repeat them. First Amendment lawyer Floyd Abrams wrote to the editors pointing out mischaracterizations of Citizens United in two news stories, but instead of publishing corrections, the Times published Abrams’ letter on the editorial page, effectively framing a factual error as a difference of opinion. Since then the error has reappeared: A February 21 post by Editorial Page Editor Andrew Rosenthal attributes Sheldon Adelson’s ability to influence the election to Citizens United. “Thanks to Citizens United, unlimited contributions to third-party groups are legal,” Rosenthal asserts.
It’s only fair to note that the Times has recently made small, slippery concessions to the truth: References toCitizen’s United now are more likely to be misleading or, at best, greatly oversimplified, rather than indisputably, explicitly wrong. A January 23 report on a $5 million contribution by Miriam Adelson to the Gingrich PAC stated, for example, that Citizen’s United “paved the way for Super PACs,” implying that it legalized Adelson’s individual contribution. It did not.
What paved the way for super PACs? First came Buckley v. Valeo, the 1976 case that struck down limits on independent expenditures while sharply limiting direct contributions to candidates, thus ensuring the formation of well-funded independent groups. More recently, in Speech Now v. FEC, a case decided in the aftermath of Citizens United, a federal appeals court ruled that an independent group devoted to promoting free-speech rights (Speech Now) could not be considered a political action committee and subject to limits on donations. (“Super PAC” is a misnomer for groups that derive power from the fact that they are not legally classified as PACs.) The Court in Speech Now did rely on Citizens United, citing it for the proposition that the government has no “anti-corruption interest” sufficient to justify limiting independent expenditures. But it could also have reached back decades to Buckley and a tradition of protected, independent political advocacy and deservedly unsuccessful efforts to restrict it. For example, in the 1980s, the FEC threatened to classify the ACLU as a political action-committee because it criticized President Reagan’s civil-liberties record during an election year.