Tananto on Media Hypocracy and Authoritarianism

James Taranto, “The Authoritarian Media, II,” The Wall Street Journal, April 14, 2015

Over the past couple of weeks we were keeping an eye on the Indiana kerfuffle, and we were struck by an editorial from the New York Times in praise of corporate speech: “Big corporations like Walmart, Apple, Salesforce.com and General Electric and their executives have done the right thing by calling on officials in Indiana and Arkansas to reject ‘religious freedom’ laws designed to give businesses and religious groups legal cover should they deny service to gay couples.”

The Times editors were pleased but not satisfied: “Just issuing corporate statements against such a law is relatively easy and actually doesn’t provide protection against discrimination.” The Times wants corporate America to engage in far broader political activism. For one thing, “corporations and their executives . . . should make clear that they will not donate to or support the campaigns of politicians who back such regressive legislation.” (Actually, campaign donations by corporations are legally prohibited at the federal level.)

The editorial adds: “Another thing businesses can do is to make clear that they want lawmakers in all states to pass anti-discrimination protections for lesbians, gay men, bisexuals and transgender people. More than three dozen chief executives of technology companies did just that in a statement released on [April 1].”

“Hypocrisy,” charged HotAir.com’s “Jazz Shaw” who compared this Times editorial with one from January 2010, prompted by the free-speech victory in Citizens United v. Federal Election Commission:

With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.

Congress must act immediately to limit the damage of this radical decision, which strikes at the heart of democracy.

The charge of hypocrisy certainly fits. What the Times now urges is that corporations attempt to “intimidate elected officials into doing their bidding”—precisely what it found objectionable five years ago. On the other hand, it is possible to reconcile the paper’s objection to Citizens United with its support for corporate political activism—but that resolution reveals something worse than hypocrisy.

The Times’s position is that corporations (with the convenient exception of “media corporations” like the New York Times Co. itself) have no rights under the First Amendment. That view underlay its histrionic objections to both Citizens United and last year’s Hobby Lobby v. Burwell, in which the high court extended the religious-liberty protection of the federal Religious Freedom Restoration Act to corporations that objected to the ObamaCare abortifacient mandate on conscientious grounds.

But now the Times is urging corporations, and executives acting in their corporate capacity, to speak out aggressively in favor of a political cause the Times supports. How could they even do so without free speech?

That seems like a rhetorical question but isn’t. Opponents of free speech, such as the Times editorial board, do not oppose speech. They oppose freedom. Authoritarian and totalitarian regimes may not brook dissent, but they encourage speech in favor of the regime. Totalitarian regimes frequently compel pro-regime speech.

To be sure, the New York Times is not a government; its editorials have the force of wishes, not laws. But the aspirations here are authoritarian in character. In the Times’s ideal world, corporate speech would be permitted, but only in the service of permissible viewpoints. That is the antithesis of free speech, a central feature of which is viewpoint-neutrality.

Or is the aspiration totalitarian? Silence, after all, would not be an option for the baker, florist or photographer conscripted into participation in a same-sex wedding by the antidiscrimination laws the Times supports. They would be—and in some places have been—compelled to engage in expressive activity that violates their deepest convictions.

As the legal scholar Richard Epstein notes: “It is easy to tolerate people with whom you agree. It is necessary in a free society to tolerate those with whom you disagree. It is this loss of tolerance, this self-righteous indignation, this vilification of a vulnerable religious minority that makes this recent chorus of incivility so disgraceful.”