Proposed Constitutional Amendment Would Ban Editorials About Candidates or Ballot Measures by Nearly All Newspapers

That’s one of the effects of HJR 90, proposed by Reps. Theodore Deutch, Peter DeFazio, Alcee Hastings, and Jim McDermott, and a similar Senate proposal by Sen. Bernie Sanders:

Section 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.

Section 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.

Section 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.

Section 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.

Nearly all newspapers, TV stations, cable networks, and radio stations (except of course for nonprofits such as NPR) are organized as corporations or other entities established for business purposes. Under section 3, they “shall be prohibited” from making expenditures “in any election of any candidate … or the vote upon any ballot measure.” Since to write or print or broadcast anything, newspapers, networks, and broadcasters must spend money, this would ban — not just authorize Congress to ban, but itself ban — editorials supporting or opposing a candidate or a ballot measure. (“Shall be” in the Constitution is generally language that indicates that something becomes the law without further Congressional action, e.g., “This Constitution … shall be the supreme Law of the Land” and “The executive Power shall be vested in a President of the United States of America.”)

To be sure, section 2 does say that such entities are “subject to regulation … through the legislative process so long as such regulations … do not limit the freedom of the press.” But section 1 tells us that business entities do not have constitutional rights; presumably, then, the freedom of the press (one of “the rights protected by the Constitution”) doesn’t extend to them. And since section 2 applies “the freedom of the press” just to regulations “through the legislative process,” and section 3 prohibits expenditures through the constitution itself, it appears that section 2’s supposed protection for the liberty of the press doesn’t even purport to limit section 3’s prohibition. Certainly nothing in section 3’s flat ban has any proviso saving the “freedom of the press.”

Now perhaps one could argue that, notwithstanding sections 1 and section 3, business entities retain the “freedom of the press” even though they lose all other constitutional rights. But, as I’ve discussed in considerable detail in this article, the “freedom of the press” has throughout American history meant the freedom of all to use communications technology, not a freedom limited to any specific industry. So if business entities do still have “freedom of the press” rights, which leaves the New York Times free to exercise such rights, then other business corporations would have the same rights as well, including the right to rent space or time in newspapers and television and radio programs to express their views, much as newspapers, cable networks, and broadcasters have the right to use such space or time.

On top of that, the proposal would mean that any government could take corporate property — whether of big businesses or small closely held corporations — without paying any compensation at all, could take corporate property without due process, and more. That would be quite a constitutional amendment.