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Tuesday, October 18, 2016

The Claim that the Media is Rigging the Election--and Citizens United

This post floats a tentative thought, welcoming reaction to it (but isn't that in part what blogging is for?): 

Elsewhere, I've addressed the current claims that the election might be rigged through modern-day equivalents of old-fashioned ballot-box stuffing.  Here, I want to consider the other current claim being made: that the mainstream media is rigging (or attempting to rig) the election, as Trump, Pence, and other supporters of their ticket are claiming. 

My first reaction to this claim was straightforward: the freedom of speech being exercised by the media couldn't possible "rig" an election, because freedom of speech is essential to the functioning of a democracy.  Free speech, far from rigging an election, promotes the fairness of elections by monitoring the voting and counting process to assure its accuracy and its compliance with the relevant rules. 

While my follow-up thoughts are fully consistent with this initial reaction, I now think there is more that is worth considering on this point--and it relates to the public debate over the propriety of the Citizens United decision.  

As I understand it, the Trump-Pence argument that the media could be rigging the election depends on the proposition that the media is improperly distorting the electoral process by persuading voters of the pernicious ideas that the media is disseminating.  Persuasion must be the mechanism of the alleged "rigging" because the media is not paying voters to cast their ballots for a particular candidate (which would be a different type of mechanism for "rigging" the election).  Perhaps part of the claim is that major media outlets (like CNN?) have some kind of monopoly position in the marketplace idea, which gives them an unfair advantage in the effort to persuade voters of what to think; but this kind of monopolization claim seems increasingly untenable given the diversity of media sources available to voters, who can choose whatever outlets they wish in an effort to gather information and develop their opinions. 

Insofar as the media-rigging claim depends on the media's being effective in persuading voters, it is indeed a claim that is antithetical to the very premises of the First Amendment and the role that free expression plays in a democracy.  Voters are entitled to be persuaded by whatever expression convinces them.  If you disagree with the message that the media is sending to voters, then send the voters a different message of your own: the remedy for "bad" speech is counter-speech, and it is up to the voters to decide what to believe.  And in this regard, of course, the media is not monolithic.  If CNN is "slanted" in its particular point of view, then watch Fox for a different perspective.  Likewise, read the Wall Street Journal and not the New York Times, if you think the Times is unduly liberal.  

Now for the relevance of Citizens United: insofar as the attack on that decision rests on the premise that corporate-funded speech will distort the electoral process by persuading voters of its message, it seems the same sort of argument that Trump and Pence are making with respect to the media's capacity to influence what voters think.  To be sure, there might be different types of arguments for attacking Citizens United--that corporate money, for some reason, should be off-limits in the process of persuading voters what to think.  But if one rejects the idea that CNN and the New York Times are capable of rigging the election because the messages they send to voters about the competing candidates, then presumably to be consistent one should equally reject the idea that Citizens United and other corporations are capable of improperly distorting the electoral process because of the messages these other corporations send to voters. 

Conversely, defenders of Citizens United should be taking the lead in condemning the Trump-Pence claim that the media is currently rigging the election because of its messages about the candidates.  The First Amendment reasoning that underlies Citizens United rules out the Trump-Pence position on this issue. 

One final thought: it seems to me that a well-functioning democracy requires some shared premises among the competing political parties about the nature of the democratic process itself.  While the parties compete to win, they agree upon some basic ground rules.  One of those basic ground rules, it seems to me, used to be the background condition of free expression as the basis upon which competing parties and groups will attempt to convince the electorate of the correctness of their respective positions.  Perhaps, however, like so much else about the electoral process in this strangest of election years, the shared understanding of the role that free speech plays in a democracy is being frayed.  If so, then let's hope that after this election we can begin a process of civic renewal that will enable restoration of the shared premises that are essential to a well-functioning democracy.


Posted by Edward Foley on October 18, 2016 at 07:49 PM | Permalink


"Is that what the opinion did?"

To the extent that it depended on the reasoning in Buckley, yes I think it did. And the comments of Messrs. Hash and Steinberg do as well.

As a legal layman, I perhaps don't understand a distinction here. Many people criticize substantive due process using that single word "liberty" in the 14th amendment. But many of those same people don't seem to have a problem expanding the single word "speech" in the 1st amendment to protect many contemporary activities, like corporations giving millions of dollars to political parties. Is there a difference between the two constructions? Perhaps we should use the term substantive freedom of speech.

Posted by: Michael | Oct 20, 2016 12:07:26 PM

Thanks to Ned for getting this conversation started. I am a fan of Orin Kerr and every year I give my new 1L's his primer on how to read a judicial opinion. They find it quite helpful. that said, I have to take exception to something in Orin's post that does not deal directly with Citizens United. Trump has, in fact, alleged, with no evidence, on numerous occasions a variety of ways that he considers the election ``rigged.'' We can start with his patently spurious allegations about media conspiracies. The talented people at the New York Times and the Washington Post can easily shed those false claims. However, what Trump has done frequently is something even more sinister than attack the media, troubling thought that is. He has specifically suggested that people in the inner cities-Philadelphia, St. Louis, etc. are engaged in illegal activities. He uses barely coded words about inner cities and comments such as ``You know what I mean'' as part of blatantly racist attacks. And, of course, he alleges that ``Mexicans'' and dead people are voting illegally. Trump never presents any evidence and lamentably his supporters demand none because many of them--and I make this statement based on quotes from them in news articles or in live television interviews--demand no evidence and tragically seem not to care. Trump's suggestions that his supporters go to the polls to scrutinize who's voting are attempts to scare some people so they won't vote. That would be another way to ``rig'' an election. I apologize if these remarks sound overly political but let's face it, he would like to bring back the sort of elections we had in the Jim Crow South. You do not have to explore the arcania of Citizens United to know that the sort of elections he would like to have are anathema to a democratic society.

Posted by: Henry Weinstein | Oct 19, 2016 4:30:31 PM

--- Of course one would only concede that if one equated "spending money" with "speech." ---

Is that what the opinion did? If you oppose Maher v. Roe, are you saying "money is abortion" since the dissent held discrimination in providing funds there was illegitimate under Roe v. Wade?

Not a single justice, I think, opposed the idea that there is SOME right to use funds to advance 1A interests, including to run campaigns. The dispute was what level of possible regulation, specifically of corporations, was appropriate there. The Supreme Court later, per curiam, upheld limits on non-citizens spending in elections.

Posted by: Joe | Oct 19, 2016 2:24:25 PM

"...that one could reluctantly concede that Citizens United gets First Amendment doctrine right..."

Of course one would only concede that if one equated "spending money" with "speech."

Posted by: Michael | Oct 19, 2016 2:13:32 PM

Ed, one other hypo to prove the point: imagine that one candidate/party engaged in speech that tricked the other candidate/party's likely voters about when/how to vote (eg, mailers stating the wrong date for election day, or suggesting that payment of back taxes was a prerequisite to voting). Such dirty tricks may well be protected under the 1A, but, again, it'd be quite reasonable to describe that as an attempt to "rig" the election.

Posted by: Hash | Oct 19, 2016 7:46:25 AM

To distill the point that asher and I have made: CU's conclusion that speech suppression is an *impermissible means* of combating electoral distortion need not and does not depend on the premise that preventing electoral distortion is an *illegitmate end*. Rather, CU just held that the proper remedy is counter-speech.

Posted by: Hash | Oct 18, 2016 11:28:27 PM

I don't think your last comment is right at all. Citizens United's correctness doesn't depend on whether campaign spending distorts voter choice or not, anymore than commercial speech doctrine depends on implausibly claiming that commercial advertising just gives consumers additional information to consider, rather than warping consumer choices in favor of carcinogenic products and fattening foods. Citizens United says that distortion just doesn't matter for First Amendment purposes - that political speech is just too sacrosanct to regulate it on the premise that some political speech is *too* effective. I think, then, that one could reluctantly concede that Citizens United gets First Amendment doctrine right and still decry organized efforts to warp voter choice on normative grounds.

That said, it also strikes me that there are all sorts of distinctions between what Trump claims cable news is doing to his campaign and what PACs do in elections. First, efficacy. I'm highly skeptical that political advertising is all that effective - one just isn't exposed to it *that* much, it's obviously biased and thus discounted, many people ignore political ads when they come on TV, PACs and candidates don't tend to work with terribly talented ad-men - but immersing voters in a media environment where the top ten leading stories about the election concern whether one of the candidates is a sexual predator seems much more likely to swing votes. Second, journalistic ethics. We don't hold PACs to high ethical standards, and I don't know why we should, but Trump has a fair gripe with news organizations that (if anonymous sources at NBC are to be believed) time leaks of old footage of him for maximum damage, or wait until a month before the election to attempt to disqualify him with archival recordings of his appearances on the Howard Stern Show, or only pluck out for airplay the most absurd unscripted bits of his increasingly scripted and policy-oriented stump speeches. This is especially the case of organizations like CNN or NBC News, that hold themselves out to their viewers as the moderate middle between Fox and MSNBC. If a PAC ran an ad disguised as an extension of regular programming on a cable news channel, the FEC would stop them and the Court would uphold the FEC's doing so. When CNN, in Trump's view, sets out to "rig" the election for his opponent in the guise of non-partisan reporting, there's a similar problem of transparency and deception.

Posted by: Asher Steinberg | Oct 18, 2016 10:57:55 PM

PS. Again, Ed, your own description of electoral freedom is the ability "to make a volitional judgment, based on all the available evidence and argument." But, of course, if the mainstream media systematically suppresses evidence unfavorable to one candidate, then that evidence will not be "available" to the many low-information voters who base their decisions solely on whatever information happens to be provided through mainstream media on the salient occasions when they tune in. And ditto if the mainstream media systematically propagates false arguments against the other candidate. One can easily view such conduct as wrongful "rigging" of the election, even while believing the Govt lacks the power to punish the press for having done so.

Perhaps an analogy will help: Under the Noerr-Pennington doctrine, if a company engages in a massive public disinformation campaign in order to trick Congress into passing a favorable law, the company's falsehoods are constitutionally protected. But I think it'd be quite reasonable to describe the company as having "rigged" the legislative process.

Posted by: Hash | Oct 18, 2016 10:49:40 PM

Ed -- although Citizens United did observe that corporate speech is consistent with democracy because it adds to the messages that voters can consider, that point was hardly "the jurisprudential underpinning" of CU. The vast majority of the opinion doesn't depend on that premise at all. Rather, CU primarily emphasizes in Parts III.A and III.B.1 that there's no basis to prevent corporations from engaging in candidate-related election speech on the basis of alleged "distortion" of the election given that (1) wealthy individuals can engage in candidate-related election speech under Buckley; (2) corporations can engage in ballot-related election speech under Bellotti; (3) media corporations could engage in candidate-election speech even under BCRA; and (4) there's no risk of quid pro corruption from independent expenditures. Given all that, CU could easily have recognized that systematically biased/false speech by prominent voices adversely impacts democratic elections by undermining voters' decisions, and yet still held that Austin could not stand given Buckley, Belloti, and the media-corporation exception -- none of which the dissenters or the Govt argued should be overruled, and all of which can be justified notwithstanding any adverse impact on democratic elections, simply because the 1A doesn't allow the Govt to censor speech in order to "fix" elections.

Posted by: Hash | Oct 18, 2016 10:36:18 PM

"Opponents of the decision ignore that media organizations are corporations."

Some might but some argue that the First Amendment specifically protects the press so a concern about "corporations" doesn't mean every corporation under the sun. Some do simplistically bash "corporations" as if various ideological groups they support aren't incorporated too. Other show a bit more nuance.

I think the argument made as to "rigging" might work but Orin Kerr basically hits a problem -- the usage is basically irrational. Trying to reasonably apply it using logic especially with how loosely Trump uses language is probably going to be tricky.

Posted by: Joe | Oct 18, 2016 10:27:21 PM

Thanks for the comments so far. A few quick additional thoughts:

1. I was aware that Trump has been critical of Citizens United. I think the arguments of the post all still stand, since they concern how defenders of Citizens United should view Trump's allegations and, conversely, how critics of Trump's allegations should view Citizens United. (Insofar as Trump believes that the electoral process may be improperly distorted both by mainstream media, like CNN and the NY Times, and corporate spender by Citizens United and others, Trump himself may be consistent--although that consistency might also be antithetical to basic First Amendment assumptions about the free marketplace of ideas.

2. I respectfully am not yet persuaded by the point that both Hash and Orin make one can embrace the jurisprudential premise of Citizens United and also believe that, as Trump asserts, that the media is capable of "rigging" the election. Here, the term "rigging" is important for the reason I think Howard is offering: to be "rigging," the messages of the media must not merely be biased in the sense of having a particular slant or agenda (pejorative terms for distinctive perspective or viewpoint), but must be subversive in the sense of undermining the free choice of the electorate concerning which candidate should win. To be "rigging", the media must produce a result that is contrary to electoral freedom--contrary to the sovereign capacity of the electorate in a democracy to make a volitional judgment, based on all the available evidence and argument, on the choice facing the voters. I don't think it is intellectually possible to claim that the media is capable of rigging an election in this sense--which is the sense I believe that Trump and Pence intended by using the term--and at the same time believe that the jurisprudential foundation of Citizens United was correct. The reason is this: the jurisprudential premise of Citizens United was that adding the messages funded by corporate dollars couldn't be contrary to democracy because adding those messages just gave the sovereign voters additional arguments to consider, and the idea that presenting voters with additional arguments would subvert the freedom of voter choice was contrary to the premise that the voters could decide for themselves what to believe. Thus, I stand by the point that if you think the jurisprudential underpinnings of Citizens United are sound, you can't think that the media can rig an election by subverting the freedom of voter choice.

Posted by: Edward Foley | Oct 18, 2016 10:01:18 PM

Howard, all three of your additional points are incorrect: (1) "rigging" does indeed suggest "wrongful" speech, but that doesn't "imply inconsistency with the First Amendment" -- there's tons of speech that is quite obviously wrongful, but yet entirely consistent with the exercise of First Amendment rights (e.g., lying about winning the Medal of Honor, picketing the funeral of a soldier to protest homosexuality, etc.); one can forcefully criticize wrongful speech without in any way implying that the Govt has the power to regulate the speech. (2) Supporters of CU are well aware that the decision does and should protect the media just as much as advocacy groups: I'd be shocked if you can identify even a single CU supporter (much less the average supporter) who has ever suggested that *the Govt has the power to restrict media speech* simply because the media has the undoubted ability to "distort" elections through biased/false reporting. (3) The "rigging" argument doesn't depend on the presumption that mainstream media has an obligation to be neutral/truthful; it merely depends on the position that mainstream media shouldn't claim to be neutral/truthful and instead engage in biased/false reporting, because that tricks gullible voters in a way that wouldn't happen if the mainstream media admitted from the outset its partisan bias.

Posted by: Hash | Oct 18, 2016 9:52:33 PM

I agree with Hash, but I would add two points:

1) Trump has been critical of Citizens United: http://www.bloomberg.com/politics/articles/2015-08-04/trump-the-developer-loves-low-interest-rates-trump-the-candidate-sees-a-bubble-

2) Trump isn't saying anything in particular about why the election is rigged; he's just saying it is. You're not supposed to think about how the election could or couldn't be rigged, as that would be applying a rational thought process that the rigging claim is not trying to harness.

Posted by: Orin Kerr | Oct 18, 2016 9:38:04 PM

Great post, Ed; this is a really important idea. Three additional points. 1) The word "rigging" suggests wrongful conduct, so the use of that term implies what the media is doing is inconsistent with the First Amendment. 2) This is another example, from the other side, of how media corporations are ignored in any discussion of CU. Opponents of the decision ignore that media organizations are corporations; supporters of the decision are thinking of advocacy speech, not the media. 3) (Related): Trump's argument works on the presumption that the news media are not ordinary speakesr that can take a position or report singularly negative stuff about one candidate; the media's job is to support only the "both-sides-are-the-same" narrative.

Posted by: Howard Wasserman | Oct 18, 2016 8:55:21 PM

PS. Here's another way of making the point: imagine that the mainsteam media systematically colluded to disseminate a false report the day before the election that hurt one candidate, and counter-speech wasn't able to be deployed in time. That could quite fairly be described as "rigging" the election, even though such false speech would almost certainly be constitutionally protected under alvarez so long as it wasn't defamatory.

Posted by: Hash | Oct 18, 2016 8:16:55 PM

Ed -- there's nothing inconsistent in (1) criticizing the press for "rigging" the election through its systematically biased and distorting reporting (given that many voters get their info only from mainstream media), and (2) defending the right of the press (and all other prominent speakers) to engage in such election-distorting speech under the 1A and CU. This is just another example of the common phenomenon that not all odious speech is constitutionally proscribable.

Posted by: Hash | Oct 18, 2016 8:08:25 PM

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