It’s nice to see that at least some readers of the Phi Beta Kappa Society’s American Scholar have called the publication to task for its previous cover story, which cast aspersions on U.S. Supreme Court conservatives because of their decision in the Citizens United case.
U.S. Circuit Judge S. Jay Plager of the Court of Appeals’ Federal District in Washington, D.C., offers the following:
We should all be grateful for the wisdom of those who gave us the First Amendment to the Constitution of the United States. Among other things, it guarantees my favorite magazine the right to publish articles like Lincoln Caplan’s “The Embattled 1st Amendment” (Spring 2015). Caplan’s piece is in part a scholarly essay on the history of judicial interpretation of the amendment, and in part a diatribe about the Supreme Court’s opinion in the Citizens United case. Nothing new here—it has all been said before.
What I am not grateful for is the exceedingly bad taste of the magazine editors in producing the front cover of the issue: a picture of five Supreme Court justices (unflattering to begin with), with a blazing title of
COMPANY MEN, followed by the subtitle “Free Speech Goes to the Highest Bidder.” The implication is not even subtle—these five justices (the majority in Citizens United) must be politically or actually for sale, or they could never have written such an opinion. (Fortunately the magazine is protected by prior Supreme Court First Amendment decisions from the libel suit that should follow from such nonsense.)
However much we may disagree philosophically with the Court’s majority in this or any other case, there is no room in a civilized discussion for these kinds of innuendoes; that Caplan is a member of the magazine’s editorial board is even more reason why his views do not warrant such editorial excess. Even Caplan recognizes that this one case, with its arguable consequences for electoral funding, may not be the last word on the issue—as he notes, First Amendment jurisprudence is more pragmatically based than theoretically moored. You owe the justices an apology, and your readers a correction.