John Dewey: Sorry, Tom. You can disagree with me, but the majority on the U.S. Supreme Court agrees with me. Justice Scalia made it very clear that the First Amendment protects not speakers but rather speech:

“The Amendment is written in terms of “speech,” not speakers. Its text offers
no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals”

John, I`m quite aware of what the court has held, but they`re clearly missing a very obvious distinction: for Constitutional purposes PEOPLE “speak”, not animals or other things. A corporation is certainly an association of individuals, each of whom has his own right to speak. But a corporation is a THING, legally distinct from its owners. Does a corporation speak for itself, or for others – who bear no liability for any false, tortious or criminal speech?

Further, corporations are creatures of the state, so the state has the right to determine their powers. Just as the Rehnquist court held that the government can gag doctors at clinics that accept federal aid, and just as the government still gags churches and other groups that want federal non-profit tax status, so can the state limit the right of owners of corporations to speak through them.

This should be an easy issue, but the Court obfuscates by comparing stated-created corporations, whose owners have received the special privilege of not being liable for any acts of the corporation, with “single individuals to partnerships of individuals, to unincorporated associations of individuals”, none of which is an artificial, statutorily-created entity with rights or obligations in excess of those of their owners.

If the Court had held that corporations are things – not “persons – and thus do no utter “speech” for purposes of the First Amendment, this would not at all affect the ability of any class of real, live human being associated with them to speak. Employees, managers and owners could all speak individually, or form groups for doing so.

The Court`s decision here is completely wrong-headed.

Sorry, Tom. You can disagree with me, but the majority on the U.S. Supreme Court agrees with me. Justice Scalia made it very clear that the First Amendment protects not speakers but rather speech:

“The Amendment is written in terms of “speech,” not speakers. Its text offers
no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals”

Corporations are not people – but legal fictions that are creatures of their owners and the State, which protects their owners by giving them a special grant of limited liability. Corporations may parrot the words of particular people with in the firm, but they, like parrots, are not people and do not “speak” themselves. (Actually, this is unfair to parrots and other animals, which deliberately attempt to convey meaning to others, and not as a sock puppet for another person/animal/entity.)

While I`m no fan of corporate income taxes, just as the federal government can condition “non-profit” status on a waiver of political speech rights by churches and other forms of legal entities, so states condition the grant of corporate status on the owners` acceptance that they cannot use the corporation as a political mouthpiece (such a use could be made expressly ultra vires), and so should states and the federal government be able to limit or tax political speech by corporations.

Not only would this be good law, but in my view entirely good policy by doing much to slow rent-seeking via large corporations, by removing incentives for wealthy investors to influence public officials and public debate. Let the rich (and others) speak for themselves anonymously if they choose, but we can and should stop the money-laundering of speech through corporations.

The Roberts court showed it didn`t have the strength of its convictions by upholding the part of McCain-Feingold that mandates disclosure of who is funding speech – in my view, this is incorrect. Anonymous speech very much SHOULD be allowed, but only for individuals and organizations that have not been granted limited liability by the state.

The chief sticky side issue here is the political gagging of churches and NGOs arising from the desire for favorable tax treatment.

The First Amendment protects a citizen from a powerful government which would decide what speech the citizen would be allowed to read or hear. It’s not a right granted to a speaker, but a right granted to a listener or reader. As such, it makes no difference whether the speech being protected comes from a single person, a non-profit organization, a union. a church, or a corporation. It is not the speaker but rather the speech – and the right of the citizen to hear it – which is being protected.

If Congress can Constitutionally limit the speech of people who choose to associate as non-profit churches etc., why cannot it likewise limit the speech who choose to accept the favor of a state grant of limited liability?

Lochgelly: The fact that these globabl corporations have manipulated our Supreme Court and that they can now control elections smacks of the worse political skullduggery that has ever existed in America.

Um… you realize the court was talking exclusively about entirely independently created messages, right? It might be a tool of intimidation but I am not sure it would be a tool of bribery per se.

Bork now is being a hack (as I note above, this law does not constitute a prior restraint under current law). Bork in 1971 was a much better scholar.

Anyone with common sense knows that money for political campaigns from a corporation is not free speech…it is bribery….period.

The fact that these globabl corporations have manipulated our Supreme Court and that they can now control elections smacks of the worse political skullduggery that has ever existed in America.

As a lawyer, I am ashamed of our legal system.

Dilan Esper: But EVERYTHING SAID AT THE TIME THE FIRST AMENDMENT WAS DRAFTED WAS TALKING ABOUT PRIOR RESTRAINTS. Again, read Bork. He nails it cold, and nobody really argues with him.

But Bork also characterizes the kind of law at issue here as a prior restraint:

Nor does Breyer’s rationale fully account for the Court’s upholding of bans on political issue advertising by corporations and unions within thirty days of a primary election or sixty days of a general election. That is a prior restraint on political speech hitherto regarded as absolutely forbidden by the First Amendment.

Leo Mrvin: I haven’t given this much thought, but is it really inconceivable that if the First Amendment didn’t protect corporations, individuals who wanted to pool resources in mass media vehicles for political speech would do so without the benefit of limited liability?

Dilan EsperYou can make this argument, but it begs the question, because then the issue is simply re-stated as “can the government condition limited liability on individuals giving up their associational speech rights?”.

In this case the question conflates the states which approve corporate status with the federal government, but why would such a question prove difficult? The federal government provides tax exemptions to religious and other groups on the express condition that they refrain from political speech.

It doesn`t take much digging to see who profoundly the grant of limited liability to corporate shareholders has snowballed into the massive struggles for favor and regulation that we see today. The decisions that corporations (as opposed to those who own and staff them) have Constitutional rights has greatly contributed to this. (Likewise, the federal income tax has also perversely entangled the state in relgious organizations and political speech.)

Madison wrote that AFTER the Sedition Act was passed. That was a partisan document. Just like the GOP now claims Obamacare is unconstitutional, the Democratic-Republicans argued that the Sedition Act, which targeted members of their own party, was unconstitutional.

But EVERYTHING SAID AT THE TIME THE FIRST AMENDMENT WAS DRAFTED WAS TALKING ABOUT PRIOR RESTRAINTS. Again, read Bork. He nails it cold, and nobody really argues with him.

Andrew:

The framers certainly wanted juries to determine libel cases. Indeed, most originalists concede quite readily that New York Times v. Sullivan is non-originalist.

Because the tax exemption was created to be a haven for churches, presumably on the notion that they create a public good by existing. If I create a “church” that does little other than lobbies, I am not creating that good. So, we’re left with one of three outcomes:

– Allow anyone who can follow a set of tax rules to funnel political money through what is now a tax loophole,
– Have the IRS decide who is and isn’t a church, causing constitutional problems there (and even if something workable way to do that might be found, don’t think there won’t be a huge political stink made about whatever rules are determined, assuring that it becomes politicized),
– eliminate the exemption for churches that actually, you know, do church things more or less as was anticipated.

And of course, this doesn’t apply only to churches, that’s just the most controversial type of entity that might begin, ahem, rendering unto Caesar a bit more enthusiastically. The issue would apply as well to PTAs or boy scout troops or another entity covered by the same rule.

Dilan Esper: And you have to distinguish what Democratic-Republicans said about the Sedition Act, which was used to target members of their party, from what they said about the subject of prior restraint vs. subsequent punishment while they were still under a Rawlsian veil of ignorance in 1791.

What did Madison write about the Sedition Act?

(Here is one example…)

They may or may not have liked them, but it’s perfectly clear that they did not understand the First Amendment to preclude subsequent punishments for seditious libel. (Again, the article to read on this is Bork’s. He lays it all out.)

And you have to distinguish what Democratic-Republicans said about the Sedition Act, which was used to target members of their party, from what they said about the subject of prior restraint vs. subsequent punishment while they were still under a Rawlsian veil of ignorance in 1791.

grog: Why? Would you prefer a situation where I can create the Church of My Opinions so that I can avoid taxes on money I use to lobbying for things I approve of?

Why wouldn’t that be better then a situation where you could create a Church of Your Opinions where you can avoid paying taxes as long as you didn’t lobby for things you approve of? Isn’t the principle that your tax bill shouldn’t depend on whether or not you engage in political speech pretty important to the first amendment?

Dilan Esper: Jefferson didn’t draft the First Amendment (Madison did) and certainly never expressed that he thought it would apply to laws and legal doctrines, such as libel laws, which imposed subsequent punishment on speech. (Indeed, the Sedition Act was structured as a libel law, prohibiting false statements about the government, precisely because it was universally understood that libel laws were not called into question by the First Amendment because they imposed subsequent punishemnts.)

The ideas surrounding general libel penalties notwithstanding, what do you think the Framers’ views of seditious libel laws were under colonial rule?

Furthermore, when one looks at the Framers, my understanding is that it is proper not only to look to those who drafted the amendment but to those who passed and ratified it as well. I would argue that the fact that the Sedition Act was not renewed in 1801 was that there were great doubts about its constitutionality.

Finally one could see an argument that the Sedition Act was constitutional at that time solely because of the US fighting a quasi-war against France (the same sort of balance that allowed the court to uphold a later Sedition Act during WWI).

In short I am not sure that it CATEGORICALLY allowed all laws providing penalties in arrears.

Dilan Esper:

I think the expansion of the First Amendment past its originalist moorings is an important and useful development in our society. And once you do that, yes, you have to protect the rights of corporations, because otherwise it prevents individuals from pooling their resources to speak in the mass media.

I haven’t given this much thought, but is it really inconceivable that if the First Amendment didn’t protect corporations, individuals who wanted to pool resources in mass media vehicles for political speech would do so without the benefit of limited liability?

You can make this argument, but it begs the question, because then the issue is simply re-stated as “can the government condition limited liability on individuals giving up their associational speech rights?”.

If you read the top comment again I think you’ll see there’s no question to beg. I was questioning your reason for supporting corporate personhood and speech rights. I wasn’t arguing that either of the doctrines themselves is invalid. That’s for people like you, EV and others who have actually read the cases to argue over.

You need to re-read the thread. I know that and agree with the modern doctrine.

But an ORIGINALIST interpretation of the First Amendment certainly would not preclude laws that provide for subsequent punishment of speech relating to elections by corporations.

My problem isn’t with this case, which I think is rightly decided. My problem is with the fig-leaf claims of originalism, and more broadly, with the lie propogated by the conservative movement that originalism is the only legitimate means of constitutional interpretation.

You can make this argument, but it begs the question, because then the issue is simply re-stated as “can the government condition limited liability on individuals giving up their associational speech rights?”.

No, they didn’t. They said it was unconstitutional as a subsequent punishment, under the Court’s prevailing doctrine (which I agree with) that substantive punishments of speech can be unconstitutional.

But the First Amendment didn’t protect only against your legal concept of prior restraint.

Cornellian: In honor of the decision, all politicians will henceforth be required to walk around wearing the logos of their corporate sponsors, much like NASCAR drivers.

Sen Imhofe already does this.

Dilan Esper: And once you do that, yes, you have to protect the rights of corporations, because otherwise it prevents individuals from pooling their resources to speak in the mass media.

I haven’t given this much thought, but is it really inconceivable that if the First Amendment didn’t protect corporations, individuals who wanted to pool resources in mass media vehicles for political speech would do so without the benefit of limited liability?