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The New York Times vs. Floyd Abrams

The Supreme Court heard oral arguments yesterday in a case involving the McCain-Feingold campaign-finance law, and touching on basic issues of freedom of speech and of the press.

I read about it in the New York Times in an article by Linda Greenhouse, whose credibility as an objective reporter of the Supreme Court’s doings was forever shredded, at least for me, by a speech she gave at Harvard last summer lamenting, among other things, the Right’s “sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.”

Still, even if Greenhouse came out of the ideological closet in a way that makes a mockery of the Times’s posture of political neutrality, as best I can tell she did a creditable job in the basic task of laying out the facts of who said what in the case that was before the Court yesterday. The provision of McCain-Feingold in question, which prohibits certain kinds of advertisements just before an election, had been upheld by the Supremes by a margin of 5 to 4 in a December 2003 decision, which is now being revisited.

The New York Times has a stake in this case. Although the newspaper positions itself as a champion of the First Amendment—and has even intrepidly broken federal laws that crimp its freedom to print whatever it pleases—its editorial page nevertheless avidly supports the restrictions on issue ads contained in McCain-Feingold, insouciantly declaring that the “Constitution permits reasonable limits designed to prevent what the Court has called ‘corruption and the appearance of corruption.’” The law, it says flatly, “does not prohibit any speech.”

But liberals are deeply riven over McCain-Feingold. And the Times is itself sharply at odds with the leading First Amendment lawyer of our era, Floyd Abrams—who also happens to be the attorney to whom the paper has turned for defense in cases ranging from the Judith Miller affair back to the Pentagon Papers in the early 1970’s.

In his exceptionally compelling memoir, Speaking Freely, Abrams recounts a 2003 conversation with Alex Gigante, general counsel of Penguin Group USA, which was poised to publish a new book about Senator John Kerry, then in the midst of a campaign for the presidency:

“Is there anything in the new campaign finance law that could be problematic?” Gigante asked me. “Yes,” I said. “There is one thing: you can’t advertise the book on radio or television at all for the entire month of July leading up to the Democratic convention, for almost all of September, and for every day of October.” That antidemocratic achievement, I said, was directly attributable to McCain-Feingold.

Gigante listened to me in disbelief and then asked the unavoidable question: “Is that law constitutional?”

“Not under my First Amendment,” I told him. “Not under mine.”

Abrams calls the provisions of McCain-Feingold governing political advertising “nothing less than outright suppression of speech of the most odious nature.” Could he have been any clearer?

Next time the Times cites the First Amendment when it publishes a vital national-security secret in violation of the law, let us not forget the hypocrisy of its position on McCain-Feingold. And a health warning: do not hold your breath waiting to read about this internecine dispute in the news columns of Linda Greenhouse. It could cause asphyxia.


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