In my last post, I explained why it’s a mistake to deny free speech rights to people organized as corporations on the grounds that corporations aren’t “real people.” It’s true, of course, that a corporation is not a person. But the people who own and operate it are. “Corporate speech” is really just speech by people using the corporate form.
The mistake here is one we see in other contexts. Critics often denigrate rights by conflating them with the means used to exercise them. For example, a standard rhetorical attack on property rights is the claim that property rights aren’t really “human rights.” Property has no rights, it is said. Its true of course that property as such is not entitled to any rights. However, property rights actually belong to the people who own the property, not the physical objects themselves. As the Supreme Court explained in its 1972 decision in Lynch v. Household Financial Corporation:
[T]he dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a “personal” right…. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property.
When I criticize decisions like Kelo v. City of New London, the objection is not that government has violated the rights of land or buildings, but those of the people who own them.
This rhetorical tactic is most often used by liberals and leftists to criticize rights advocated by conservatives and libertarians. However, it’s important to understand that the same ploy can easily be turned on rights favored by the political left. Consider, for instance, the right to use contraceptives upheld by the Supreme Court in Griswold v. Connecticut. Contraceptives, after all, have no rights. They are inanimate physical objects, like any other property. Under the Connecticut law banning their use, women were still free to avoid pregnancy (e.g. – by abstaining from sex, or by using the rhythm method). They just couldn’t use this particular type of property to do it. It’s easy to see that any such critique of Griswold would be specious. After all, contraceptives are just a means that women use to exercise their rights to reproductive choice, albeit a particularly effective one.
The same point applies to corporate speech and property rights. When corporations “speak,” they are just a means that individuals use to exercise their rights of free speech – often a more effective means than the available alternatives. And just as the right protected in Griswold actually was a human right rather than a right belonging to the contraceptives, property rights are rights of human owners, not rights belonging to tracts of land or objects.
Abjuring this common rhetorical tactic doesn’t by itself resolve longstanding debates over the scope and content of human rights. You can still attack property rights or corporate free speech rights on other grounds. But it does help focus the discussion on real issues and reduce rhetorical distractions.
Kieth says:
I sort of believe what you say is true but it is very hard for me to see anything good coming from this decision. Do you think it will improve public debate on the issues?
January 21, 2010, 8:39 pmI do not.
ERH says:
But here’s the problem when people associate as a corporation they gain special rights and privileges not available to individuals. Because of this they should be subject to special regulation to make sure they don’t abuse their preferred position in society.
January 21, 2010, 8:44 pmDenver says:
Nothing stops the people that own or work for a corporation from speaking and giving money as people. But the corporation is a creature of the state. It is not a person. Taking “rights” away from corporations takes no rights away from people. Corporations have no rights other than those permitted them by law.
January 21, 2010, 8:45 pmIlya Somin says:
But here’s the problem when people associate as a corporation they gain special rights and privileges not available to individuals. Because of this they should be subject to special regulation to make sure they don’t abuse their preferred position in society.
I don’t think this justifies taking away their constitutional rights, or restricting them. But even if it does, it’s a different claim from the one I’m criticizing. Moreover, people who own organizations organized as partnerships or sole proprietorships also have “special” legal rights as a result.
January 21, 2010, 8:46 pmDave Hardy says:
I’ve never quite understood the purpose of leveling laws at corporations but not LLCs, partnerships, unincorporated associations, etc..
January 21, 2010, 8:47 pmJay says:
Ilya, in the corporate speech example, which individuals’ rights are implicated? Shareholders? Corporate management? Corporate employees? Customers?
(On property rights, you’re obviously right, but your point seems like a straw man. Does anyone seriously argue against property rights by saying that property can’t have rights?)
January 21, 2010, 8:50 pmpc says:
On the upside, now foreigners have free reign to influence US elections.
January 21, 2010, 8:57 pmERH says:
But if you form this special entity recognized by the state should it be all benefit and no detriment? Of course not. To allow a corporation the full free speech rights of an individual would 1) make it very difficult to regulate some of their activities vital to the regulation of interstate commerce, 2) more worrisome distort the political process in their favor.
As for partnerships and sole proprietorship in those cases it’s far easier to pierce the corporate veil stripping them of the advantages corporations provide.
January 21, 2010, 8:59 pmBlue Neponset says:
When Exxon Mobil creates a commercial attacking a congressman from Maine how exactly is that an example of individuals expressing their opinions in corporate form? Which individuals? The Board of Directors? The Shareholders? The Management Team?
Another issue with this idea is that Corporate opinion can exist without individuals. For example, if a CEO works for Company A he might support X because it is good for Company A. If this CEO gets a job with Company B (a direct competitor of Company A) then it is quite possible that he might support the exact opposite of X. The individual opinion of the CEO is completely different because his opinion is filtered through whichever corporation employs him. IOW, doing what is right for the Corporation isn’t an individual opinion.
January 21, 2010, 8:59 pmRC says:
Letting Nazis spew their filth isn’t exactly enriching to public debate, but we are required to respect their rights nonetheless. The ability to profess unpopular ideas or speech is one of the major reason the First Amendment exists.
January 21, 2010, 9:00 pmtherut says:
Didn’t they already do this with Al Gore???
January 21, 2010, 9:00 pmLN says:
Reading this post I can’t help but think that this whole idea of rights — well, “nonsense upon stilts.”
January 21, 2010, 9:04 pmLN says:
Do corporations have the right to practice their religion?
January 21, 2010, 9:08 pmptt says:
My evil twin and I both own Exxon stock.
We both exercise our individual right of free speech regarding off-shore oil drilling. I support the Democratic candidate who wants to limit it. He support the GOP candidate who wants to open the entire coast to oil development.
I speak / he speaks. I donate money / he donates money.
Now, his individual speech will be augmented by Exxon’s corporate speech and my speech will be countered by corporate speech and as a stock holder, I will be funding the speech with which I vehemently disagree through reduced dividends.
January 21, 2010, 9:08 pmJustin says:
“When corporations “speak,” they are just a means that individuals use to exercise their rights of free speech — often a more effective means than the available alternatives. ”
This is where you lost me. I guess this is true in a narrow range of corporations, but it is hardly true for for-profit corporations.
January 21, 2010, 9:09 pmptt says:
I suspect they’re more interested in not having to testify against one another.
January 21, 2010, 9:09 pmTim says:
The organization of the corporation is a creature of the state. The corporation itself is nothing more than a collective of people unified for a common goal.
The CEO, insofar as he acts in his duty as CEO, is not an “owner” of the corporation, but a representative of the owners. Obviously, oftentimes, the CEO will have an extensive ownership stake in the corporation, but don’t conflate “management” with “control” or “ownership,” because that is incorrect, unless the CEO owns all of the stock for the firm, or a sufficient proportion such that he has complete control.
January 21, 2010, 9:10 pmRikiTiki says:
Query…if corporations are entitled to the same protections as individuals (because they are comprised of individuals), then does that mean they are also entitled to equal protection? Where does the madness end?
January 21, 2010, 9:13 pmleo marvin says:
The rights of corporations may be analogous to rights the shareholders have as individuals, but the right to form a corporation isn’t automatic or natural. Corporations are legal fictions that exist because governments say they do. As others alluded above, the essence of the corporation is limited liability, an asymmetrical right, i.e., one not available to individuals outside the corporation. Since limited liability is in the government’s discretion to grant, there’s no logical reason it couldn’t be conditioned on surrendering other rights the individual couldn’t be deprived of when s/he isn’t shielded by the corporate veil. I don’t claim this is or should be the current Constitution doctrine, just that the expansive view of corporate rights doesn’t necessarily follow logically from the existence of analogous individual rights. And yes, everything I said about corporations should apply equally to LLC’s LLP’s, etc.
January 21, 2010, 9:13 pmPostscript says:
Would a congregation lose its constitutional protection to practice religion if they organized their church as a corporation?
January 21, 2010, 9:14 pmpc says:
When China sets up a US corporation and puts a figurehead US CEO at the helm, they can pick and choose which candidates they support. Ditto for Russia, Saudi Arabia, etc. Now the floodgates are open for foreign governments to directly influence US elections. Thanks SCOTUS!
January 21, 2010, 9:15 pmzuch says:
You have a right to speak in favour on whatever your cause du jur is. You don’t have a right to do so by the “means” of flying a 747 with flashing signboards bolted to the side over New York City at 500 feet (nor by entering a church and shooting your nemesis in the head in front of the congregation, either).
Cheers,
January 21, 2010, 9:16 pmzuch says:
And FWIW, all people are denied equally these “means”-specific “rights”. Free speech law allows TPM (you know, like “time, place, and means“?) view-point neutral restrictions.
Cheers,
January 21, 2010, 9:19 pmzuch says:
Prof. Somin:
“Straw man”?
Cheers,
January 21, 2010, 9:22 pmcelticdragonchick says:
Exactly. In that respect, the decision seems borderline treasonous.
Government by, of and for the people seems to be dying. I, for one, welcome our new corporate Chinese and Saudi overlords…and you will too if you know what is good for you.
God help us.
January 21, 2010, 9:22 pmBlue Neponset says:
I agree. The CEO is acting as an agent of the corporation. The fact that he isn’t an owner doesn’t stop him from making decisions about corporate opinion however. His job is actually to make those decisions. Since he is acting as an agent of the corporation he isn’t offering the opinion of an individual.
For small corporations it is quite easy to trace the corporate opinion back to an individual/owner with the same opinion but that isn’t the case for large multi-national corporations.
January 21, 2010, 9:24 pmzuch says:
Prof. Somin:
They just couldn’t use this particular type of property to do it. It’s easy to see that any such critique of Griswold would be specious. After all, contraceptives are just a means that women use to exercise their rights to reproductive choice, albeit a particularly effective one.
The impetus there was not to prohibit a specific means, but to prohibit the practise. There’s no rational reason for banning condoms per se; it isn’t even a rational TPM/LRA restriction.
Cheers,
January 21, 2010, 9:28 pmJ Burns says:
It seems to me that a lot of the discussion ignores the language of the First Amendment — at least versus, say, the 14th Amendment. The First Amendment espouses a limitation on the scope of Congress’s power: “Congress shall make no law . . . abridging the freedom of speech.” Nowhere does it say that it shall make no law regarding the rights of citizens or person or any specific group. In contrast the 14th Amendment talks about rights “of citizens” or “any person”.
January 21, 2010, 9:32 pmloki13 says:
Wow… that’s profound. Would the employees, managers, and stockholders of a corporation lose their free speech rights if a corporation didn’t have free speech?
/sarcasm
January 21, 2010, 9:33 pmzuch says:
Would you support allowing them to get a virtual monopoly on the media? Even if this is what the Constitution requires, would that be a good thing? Likely to inure to the benefit of the nation?
Cheers,
January 21, 2010, 9:34 pmMark Field says:
This strikes me as false. It’s much more accurate to say that a corporation is a collective of dollars unified for a common goal.
I think you have this backwards, as your quotation marks show. Individuals don’t use corporations to speak; they can do that themselves. Corporations, OTOH, must use individuals to speak because they can’t do so otherwise. Thus, there’s no need to recognize any corporate “right”, because the exercise of free speech can only come through a person. That person has rights, the corporation itself has none.
January 21, 2010, 9:36 pmPendulum says:
As I understand it, corporations could be wholly abolished by state legislatures (or maybe even Congress), with no constitutional problem.
Are you arguing that, corporations are constitutionally mandated? Or are you arguing that, if Congress permits corporations to exist, it is compelled to grant these creatures of statutory law equal rights as partnerships and sole proprietorships, regardless of the special rights corporations receive? Is this an equal protection argument?
I realize that some people may make the argument that “corporations aren’t people, so they don’t have free speech rights.” While this argument may have some textualist appeal, I’ll agree that it’s weak when offered on a non-textualist or policy basis. But it’s just one bad argument, and I think there are much better one’s for the anti-corporate speech rights position.
I’m eminently convincable – before I really spent some time thinking about this issue, I generally assumed the ‘conservative/libertarian’ position was the right one. But I’ve now concluded otherwise, and I haven’t seen anything to make me change my mind. I’ll be interested to read the majority and see if they can talk me into their view again.
January 21, 2010, 9:39 pmsteve s says:
“Moreover, people who own organizations organized as partnerships or sole proprietorships also have “special” legal rights as a result.”
Those are very different from corporate protections, as I am sure you know better than I. If corporations have the same rights, they should have the same liabilities. IMHO, this would be a good horse trade. Individuals are able to use the corporation to make money with much less personal risk so that they can use that money to affect the public discourse. In essence, I am subsidizing them.
I think this calls for different corporate structures. Corporations which desire to engage in political discourse, or any attempt not directly related to selling their goods/services, should lose the corporate shield for officers and shareholders in those corporations.
January 21, 2010, 9:39 pmzuch says:
The Pope was a corporation.
Cheers,
January 21, 2010, 9:39 pmMark Field says:
I’d take this argument more seriously if its advocates truly believed it. They obviously don’t, because Congress makes all kinds of laws abridging freedom of speech: laws against obscenity; laws against fraud; etc.
Since Congress does pass such laws, the issue can’t be restricted to some textualist fundamentalism.
January 21, 2010, 9:40 pmzuch says:
What makes you think that only “U.S.” corporations have free speech rights under Citizens United? Why bother with a figurehead?
Cheers,
January 21, 2010, 9:41 pmcircularfish says:
I’m not sure the corporate speech = individual speech x number of shareholders equation really holds up. I suppose it depends on the state, but we’ve come to expect a fiduciary duty on the part of officers and the board to utilize corporate assets to maximize shareholder value. This is a pragmatic determination, not a moral one, and therein lies the rub — “what is speakable” for a corporation comes pre-defined, and is independent of what any living person might actually think.
I don’t want to trade in ridiculous thought experiments, but in your spare time you can think of all sorts of scenarios where legislation that is in no human being’s possible interest might be immensely profitable to some corporation (great horror stories could be constructed with pharmaceutical firms or weapons companies).
This is a bad decision.
January 21, 2010, 9:46 pmHoward Gilbert says:
Any structure, function, or operation of a corporation could also be performed by an unincorporated organization consisting of the same people run by the same rules established by other means (contracts, agreements, partnerships). The only thing being a corporation means is that liability is limited to the entity and does not pass on to the shareholders. The laws creating the corporation may be a creation of the state, but the organization itself was created by people who founded it, made the business decisions, built and sold the products, and so on. All the state did is to issue a sheet of paper. If they think that means that they can control speech, I suggest that they take back their stupid sheet of paper, roll it up, and shove it up the appropriate location.
If corporations had never been created, we would not be a land of small farms and horse drawn buggies. We would have found some other convenient legal system to perform the same function through a different means. Every current corporation would still exist in much the same form, but with some different legal charter. Is there something inherent in such an alternate system that it would justify free speech? Is there something defective about the current legal system that makes the same speech by the same people for the same reason inherently evil?
January 21, 2010, 9:47 pmJonathan Goldstein says:
Two thoughts:
Many people forget, a corporation is a corporation. The NAACP and Exxon are the same corporate form, one for profit and one non-profit. The New York Times is also a corporation and so is NBC.
Why should the the Times get the right to say whatever it wants and Exxon shouldn’t? Why should the NAACP (or the NRA) be able to say what it wants as other corporations are restricted? Very soon, we’re down the exact rabbit hole that the decision criticized – prior restraint of speech based on who is speaking and what they are saying – anathma to a free society and totally unconstitutional.
As I read the preamble to the opinion today, one of the things the court found particularly offensive, and unnavigable, was that some corporations are treated differently than others in what should be a strict scrutiny, suspicion of all restrictions environment. “Congress shall make no law…abridging the freedom of speech.”
Second, I think that is inaccurate to say that a corporation’s views directly represent the views of its shareholders.
The corporate form is captured by its largest and most well organized shareholders and by its managers – both C-suite employees and board members. We have to be cognizant of the fact that corporate speech will be shaped by this capture much the same way as union speech is driven by union leadership and not by rank and file union members.
January 21, 2010, 9:48 pmShelbyC says:
Dollars don’t have goals. Only people have goals.
January 21, 2010, 9:49 pmPostscript says:
Apparently it is because of the disproportionate power of corporations to accumulate great wealth. Of course everybody knows that without the corporate form, there would be no economic disparity, and everybody could be equal.
January 21, 2010, 9:50 pmzuch says:
No.
Cheers,
January 21, 2010, 9:52 pmrpt says:
Tim:
This may be what the textbooks say, but it has little connection with reality. The CEO can now use the shareholders’ money for his own purposes.
January 21, 2010, 10:01 pmRicardo says:
It’s true, of course, that a corporation is not a person. But the people who own and operate it are. “Corporate speech” is really just speech by people using the corporate form.
I have no strong opinions on corporate free speech one way or the other but I don’t find this argument convincing. A corporation is a legal entity with representatives who act individually on its behalf. When those people are acting as official representatives, it’s not clear to me the First Amendment is automatically implicated. The corporation’s representatives did not lose any rights as individuals: they can say whatever they want as long as they do so in their own names and in their own capacity. Corporate officers — like lawyers, judges and many other professionals — may well give up some ability to speak freely when they are acting in their official roles.
January 21, 2010, 10:01 pmzuch says:
Strict scrutiny doesn’t apply to TPM (“means”, or “manner”, as you please) restrictions.
Cheers,
January 21, 2010, 10:02 pmSteveMG says:
Perhaps another way of looking at this – and I haven’t read all of the posts so forgive me if someone suggested it – is to substitute another right for speech and apply it to a corporation.
Let’s substitute religion. No one believes that the state can take away someone’s religious freedom simply because they belong to a corporation.
As to the decision’s consequences and my first blush: if we apply public choice theory to this might we not see, ironically, an increase in the size and scope of government as interest groups use political ads to reward those representatives who grant them government benefits?
January 21, 2010, 10:09 pmrpt says:
One can anticipate the influence which the CEO of the EIB network will soon wield over Florida politics:
“There are a lot of people, when you say banker, people think Jewish. … People who have a little prejudice about them. … To some people, banker is a code word for Jewish; and guess who Obama is assaulting? He’s assaulting bankers. He’s assaulting money people. And a lot of those people on Wall Street are Jewish. So I wonder if there’s – if there’s starting to be some buyer’s remorse there.”
Rush Limbaugh 1.20.10
January 21, 2010, 10:10 pmCharles says:
Which people have those goals? At the end of our current financial crisis we could find noone who authored it. I can’t imagine that adding that lack of accountability to the political context will be a good thing.
January 21, 2010, 10:11 pmPendulum says:
Jonathan Goldstein,
“Many people forget, a corporation is a corporation. The NAACP and Exxon are the same corporate form, one for profit and one non-profit. The New York Times is also a corporation and so is NBC.”
I’ll agree that corporations should receive or not receive rights irrespective of their corporate activities (at least for-profit corporations such as Exxon, NBC, and the NYT. I haven’t thought the non-profit issue completely, but I’m tempted to agree). I agree that for-profit corps should stand or fall together, regardless of their status as media entities. But if we’re playing textualism, the negative consequences for discourse that you seem to be arguing would result aren’t relevant, right?
Or are we playing non-textualism and balancing burdens and benefits?
We can do either, but not at the same time.
January 21, 2010, 10:12 pmBrett says:
Ilya: I’d actually rather read your views about how loosening restraints on corporate speech intersects with the incentives that voters have to be rationally ignorant and the corresponding policy distortions that this predictable ignorance creates.
It’s not clear to me how increasing the ability of corporate officers to intervene in the marketplace of ideas with messages aimed at serving corporate ends will assist in alleviating ignorance. (For all the talk about the corporate form, we’re really talking about officers making interventions, not shareholders. Shareholders may benefit if the speech serves its purposes, but they’re not really speaking, any more than they are liable for defamation or punishable under obscenity laws because of something in a corporate press release.)
If anything, it will probably increase the costs of becoming knowledgeable about politics, because it will increase the proportion of politically relevant information that is directed at strategic interventions of one sort or another, rather than the presentation of truth claims. I suppose that the disclosure and disclaimer regulations may have some cognitive value for people who are trying to learn how to sort messages based on the source.
Given your research interest, I think that it would be more interesting to read how you work out that problem, rather than try to figure out why you are shadowboxing with “liberals and leftists” who supposedly argue that property rights are bunk because property is a human creation, or whatever.
January 21, 2010, 10:17 pmLN says:
Let’s turn this on its head. If there is absolutely nothing remarkable about corporate speech, then what are the consequences of restricting corporate speech? As far as I can see, there are none — individuals would make exactly the same speech acts they would otherwise, since they have their individual free speech rights. Instead of IBM making a campaign donation, IBM shareholders make individual donations. Instead of IBM buying a campaign ad, IBM shareholders get together to pool resources on a campaign ad.
Does anyone actually believe this? That the debate about corporate speech is fundamentally a philosophical debate about rights with absolutely no consequences in the real world, because corporations are just associations of individuals?
In reality people have a multitude of interests. I may own shares in two companies with different interests. Or I may oppose abortion rights and own shares in a company that provides supplies to abortion providers. If I sell those shares, I may still own shares in another company that owns shares of the supplier, because its stock price is considered to be a good buy that will generate high returns. If that supplier company lobbies the government for changes in the law that offend my moral beliefs but expand my personal wealth, are my interests being served?
This simple mathematical equation — corporation = people in the corporation — just doesn’t hold up to scrutiny.
This is not to say that corporate speech is necessarily bad. But I find the insistence that corporations SIMPLY DON’T MATTER BECAUSE THEY ARE JUST GROUPS OF PEOPLE somewhat baffling. There are consequences to how we treat corporations; can we at least look at those?
January 21, 2010, 10:17 pmStiles says:
Here is my biggest concern with the decision. Foreign nationals are currently prohibited from campaign donations and expenditures, correct? However, if a foreign national or a sovereign wealth fund has a significant interest in a corporation, doesn’t today’s decision afford them the ability to donate through the corporation?
January 21, 2010, 10:34 pmfreshlegacy says:
It appears that the main concern of people critical of this decision is that big corporations will “unduly” influence the outcome of elections. I think this concern is unwarranted. Of course, they will try, but that’s okay or should be. I doubt any posters here who worry about carbon emissions, for example, will change their minds just because Exxon-Mobile spends billions on campaigns to elect global warming skeptics to office.
The fear, of course, is that those billions will “influence” less informed — and presumably less motivated — voters to vote the “wrong” way. This is a damning critique of mass democracy from those who purport to be champions of “the people.” Individually, people have the right to do their own research and make up their own minds, and that right doesn’t vanish as a result of this decision. To the extent people don’t exercise that right, democracy suffers. But in that case it really doesn’t matter how much the corporate giants spend. Restricting their spending doesn’t make for “better” democracy.
January 21, 2010, 10:45 pm24AheadDotCom says:
Ilya Somin is, as usual, right. But, I’ll go even further: since corps are humans and have human rights, we should let them vote. That way, the generous Koch family that also bankrolls at least part of the school that Somin teaches at could buy up a bunch of corps and have them vote for the best public policies around. What’s good for Koch is good for the USA!
P.S. Somin is also right about Haiti (that’s not about Somin’s recent post, just the related WSJ article he linked to approvingly).
January 21, 2010, 10:45 pmMik Robertson says:
When people incorporate, they do so to limit individual liability. If you do not wish to have full responsibility, can you legitimately lay full claim to rights?
Do corporations, or any group for that matter, have rights? I think not in the sense of inherent individual rights, like freedom of speech. Yet legal decisions have granted corporations rights as persons under the first, fourth, fifth and fourteenth amendments of the US constitution as well as under the commerce clause.
There is no doubt that corporations have certain authority to function pursuant to their charter, just as governmental corporations have constitutions. That does not mean they have rights, though. Saying that corporations do not have rights does not diminish business activity in any way.
I can see if a sole proprietor of a business enterprise, who has full responsibility for the actions of the business, wants to claim the right to freedom of speech, but not corporations whose officers and shareholders are shielded from full liability.
If the role of government is secure the inherent rights of the individual, as Thomas Jefferson indicates, then to secure the rights of legal fictions distracts from that purpose. It is not a question of giving rights to property, although that is what corporate personhood does, it is the elevation the right to property over other human rights.
January 21, 2010, 10:52 pmraoul says:
Individuals who speak through the veneer of incorporation (after all, corporations don’t speak- they are creations of the mind) are availing themselves advantages of corporate law for purposes that were not intended. In other words, if I buy an ad or develop other speech expenditure (which is what we are talking about here), I will I pay for it after I paid my taxes. A corporation will use pre-tax money for the same expenditure: thus those individuals in that corporation incur an advantage over me. The same applies to liability-an individual not affiliated with a corporation may be ruined for misuse of freedom of speech (e.g., libel); however, an individual with a corporation would jeopardize shareholders value, but himself or herself will escape harmless. It appears to me, individuals affiliated with legal entities have a huge advantage over the rest of us.
January 21, 2010, 11:02 pmjukeboxgrad says:
stiles:
Yes, and in a quite invisible manner, as was nicely explained here. But what’s your problem with free trade? We’ve already sold off large portions of America, in the form of real estate and corporate equity now held by foreign individuals and governments. Why not also sell our government? If the People’s Bank of China would like to buy Congress, I don’t see why we should stand in their way. That is, unless we can get a higher bid from the Saudi royal family.
Imagine all the bloodshed that will be prevented if we let communist China take over the US this way, rather than by actually having to wage an actual war.
NASCAR drivers wear outfits covered with corporate logos (image). Hopefully our elected officials will volunteer to dress the same way. That way when we watch them on CSPAN we’ll know which corporations and foreign governments own them.
But I advise all Americans to pay no attention to this issue. You should be much more concerned about a nut with a few grams of explosive in his briefs.
January 21, 2010, 11:07 pmrpt says:
A hundred New York mayoral elections to come.
January 21, 2010, 11:08 pmrpt says:
And goodbye to the Caperton decision. Nothing to prevent unlimited contributions to affect judicial elections.
January 21, 2010, 11:09 pmMark Field says:
And only people have speech.
January 21, 2010, 11:13 pmJRinDC says:
For a non-profit corporation, the equation of people and corporations for the purpose of rights makes some sense. The organization is created for a purpose, which often involves policy advocacy, and is supported by people who believe those things. It is freedom of association. But a for-profit corporation is very different. All of us on this board are investors, though most likely investors far removed from management. We are “shareholders” but the corporations do not speak for us. If we are investors in mutual funds we may not even fully know what corporations we are invested in, let alone have a say in their governance. My money is now going to be used to promote causes I wholly disagree with. That which is good for the corporation is in no respect necessarily consistent with my values as a funder of that corporation. The idea then that corporations are simply people speaking as groups freely associated is hogwash and shows no understanding of the way corporations are really organized and funded in the marketplace.
January 21, 2010, 11:17 pmraoul says:
I am very impress with the comments, and I did not even think of the foreign subsidiary issue. Corporate speech typically involves individuals wanting to get in the political arena with very little nexus with the what the actual corporation does; and in those instances that there is a nexus, the corporate political position usually amounts to a guess by the corporate official (I guess corporations can run their own candidates). Essentially the decision represents a subsidy to the moneyed class. In a related topic, I still think individual mandates are unconstitutional but I think the Supreme Court is so vested in corporatism that they probably would ruled it constitutional.
January 21, 2010, 11:18 pmJRinDC says:
Others have properly pointed out that the Kelo argument is a straw man. It is also wrong. The right to property in the Constitution is a right to due process. You may be deprived of property with compensation. No other right is expressly revokable with conditions. Property is not absolute. It too is a creation of the state and its defense is the prerogative of the state.
January 21, 2010, 11:20 pmtdaxp » Blog Archive » Corporate Free Speech is a Fundamental Human Right says:
[...] the Volokh Conspiracy: This rhetorical tactic is most often used by liberals and leftists to criticize rights advocated [...]
January 21, 2010, 11:36 pmDangerMouse says:
NASCAR drivers wear outfits covered with corporate logos (image). Hopefully our elected officials will volunteer to dress the same way. That way when we watch them on CSPAN we’ll know which corporations and foreign governments own them.
Juke, are ALL of your posts just talking points nowadays? Would it kill you to have an original thought? Honestly….
Anyway…
Notwithstanding all of the potential outcomes, the Constitution does not say that “First Amendment Rights only apply to natural persons.” It says “Congress shall make no law… abridging the freedom of speech.” THE freedom of speech. Joint-stock companies existed back during the Founding, and the First amendment presupposes the existence of the right with no limitations at all based on where the exercise of the right originates. That seems like a fundamental problem for people who want to draw lines based on whether people are speaking as a group in varying forms.
January 21, 2010, 11:40 pmMnZ says:
“Congress shall
make nobe free to make a law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances if it involves a corporation.”There…I fixed it.
January 21, 2010, 11:49 pmBrett says:
I think that what is disturbing me about the notion that a corporation is merely a form used for individuals to speak is that it completely obliterates any distinction between speech and profit. MCFL was about corporations that were formed in order to allow individuals to speak. The Court already carved out an exception for them, and as JRinDC says above, this makes a certain amount of sense.
But saying that people use corporations in order to speak is actually a kind of inversion. People use speech through corporations in order to make a profit, not to employ the functions of speech (which are, especially, identifying with an idea, stating a truth claim, making a command, claiming that a norm is valid, and so on). Shareholders have no discretion to choose political speech as a means of advancing their interests, and no discretion (as others have noted above) to select among various ways of speaking.
And in Citizens United, unless I’m missing something, the shareholders were doubly removed: the ban kicked in because CU collected funds from for-profits. So, it’s really hard to see how anyone used the for-profit corporate form to speak here. If anything, corporate officers, operating under the wide latitude for business judgments, made the strategic decision that funding another entity would increase corporate value. That other entity happened to employ speech.
I understand that Scalia at oral argument was concerned about the mom-and-pop corner store owner who organized the store as a corporation somehow and really wanted to give CU a few bucks in order to go after Hillary. But really, once you get out of close corporations and into the arena of the publicly traded corporation, you’re talking about a different ballgame, and any attempt to say that people are using the corporate form in order to speak is just weird. Even in the close corporation context, MCFL allowed you to form a non-profit if you really wanted to use the corporate form to speak, as opposed to run a corner grocery store.
January 21, 2010, 11:55 pmMalvolio says:
Wow, the part where 24Ahead thought he was lying, he was correct; the part where he was just being snarky, he was factually wrong.
Voting is not a right, it’s a privilege of citizenship.
Everyone – citizen, tourist, illegal alien — has the right of free speech and it seems obvious to me that just because two or more of us get together to speak (or to do something which speaking would help) we don’t lose that right.
Look at it another way: would a law making it illegal for a corporation to print Bibles be constitutional?
Some of you ask, what good does the corporation’s right of free speech do for society? Why couldn’t its shareholders speak for themselves?
The same question could be asked about anything the corporation does. Why can’t the shareholders get together and run a factory? Drill for oil? Run an airline? A corporation does many things more efficiently than its owners could severally or attempting to coordinate themselves some other way.
You might say, a corporation’s speech, at best, expresses what is the corporation’s best interest while an individual’s speech expresses his true opinion. To that I say, mwa-ha-ha and ask scornfully, do you believe that Corn Belt politicians support farming subsidies solely because pro-subsidies voters have congregated in their districts from sheer coincidence? Individuals speak (and vote) their interests and corporations speak the interests of their shareholders.
January 21, 2010, 11:55 pmOren says:
The right to property precedes the existence of the State (just as with all the rights) — whether or not the State chooses to respect those rights is irrelevant. One ought not say that antebellum slaves lacked the right to liberty but rather that their self-evident right to liberty was being denied.
This is an important distinction because otherwise ‘rights’ becomes defined as whatever things the government chooses not to abridge.
Shareholders decided (collectively) who will serve as management.
By their own voluntary choice. There are plenty of businesses in which
Happens all the time in so many ways.
But you are not a “funder”, you are a shareholder with just a small voice among the other shareholders. If a majority of share-holders share your values, you can either force the management to speak consistently with your values or replace them entirely.
What you want, actually, is a minority-shareholder-veto over business decisions.
I think they are organized and funded by people that don’t give half a **** about their political activities and, at any rate, would just as well sacrifice those preferences for an extra few percent growth.
Let me phrase it another way, if you polled all active investors, how many of them do you think would rank “Spends money on political causes I agree with” as an important criterion?
January 21, 2010, 11:57 pmben says:
Capital seeks to replicate itself and increase, just as life does, just as as a virus does, and equally lacking in teleology.
January 21, 2010, 11:59 pmzuch says:
15th Amendment: “Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
19th Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
Cheers,
January 22, 2010, 12:06 amraoul says:
Corporations speak the interests of their shareholders except when they don’t. (See current fiscal crisis) The bottom line is that corporations are ‘regulated’ structures and individuals are not. My freedom of speech is inchoate to my birth. The legal structure is made by the legislatures. Something that bothers me is that in this country, unlike other countries, corporate decisions are usually done for the short term, but their decisions impact all of us, and now they get a subsidy- imagine no airbags, harmful pesticides, no minimum wage. America S U C K on this.
January 22, 2010, 12:06 amOren says:
Indeed, sometimes they make poor decisions (for instance, the TW/AOL merger was a total disaster for the shareholders’ interests). Presumably, the shareholders, when they defer the day-to-day functioning of the corporation to management, accept the possibility that management will err occasionally.
I don’t understand what is hard to get here — the shareholders select the management (and can replace them at will), the management makes the decisions. It’s no different that complaining that your Congressman voted for legislation you don’t like — either get a majority of voters to oust him or deal with the fact that you are in the minority on this issue.
So? Does that remove the legislature’s responsibility to protect our rights or what?
Utter nonsense. Intel just laid down about $5B for the construction of a fab that will not produce a single viable product until (barring any technical difficulties implementing a a new and untested method creating insane precision devices with no tolerance for error) 2015. Real short term!
I would love a car without airbags — it would shave 50lbs and $2000 from my car. Where do I sign up?
January 22, 2010, 12:14 amDangerMouse says:
Many on this thread are focused on potential bad effects, but you face a fundamental problem: the First Amendment, which outlaws prohibitions on “the freedom of speech”, is not dependent from where the exercise of that right originates, either individually or in some sort of collective. There is absolutely no basis in the First Amendment for banning “collective” speech exercised by a corporation or union or political party or congregation. None.
Everyone who’s so focused on bad influences and effects is really saying that they don’t respect freedom of speech from a collective. If speech from a corporation or union is banned, why not from a congregation or political party? Those are collectives, are they not?
January 22, 2010, 12:14 amOren says:
Wide latitude granted by the shareholders themselves.
The shareholders could, if they chose, restructure the corporation to require every expenditure (from pens to jets) to be voted on. They do not because they have absolutely no interest in doing so. You (and others) seem to think that investors place any priority on managing these expenditures. They obviously do not and, if they ever caring about it there would be more than ample way for them to exercise due control.
January 22, 2010, 12:18 amBrett says:
No, we agree here. Saying that corporations are just the form that individuals use to speak (or exercise their speech rights) makes no sense, in part because no shareholder subjectively cares about exercising their individual speech rights through the corporate form.
January 22, 2010, 12:32 amraoul says:
Orin you probably also support no motorcycle helmets laws, no school vaccinations, etc., but the problem occurs when your behaviour can impact mine. I commend Intel- but we all know short term profits have been the American way- exceptions do not disprove the rule (BTW 2015 is that far-LOL). Speech is a direct human activity-that cannot regulated-of course some of you would think yelling FIRE! in a theater is OK but I digress. But when the state creates a fiction it can certainly decide its parameters. And people can still gather and speak in assembly and all that. The issue here is that a profit making machine which has economic structural advantages over all of us has now more speech. Not the same, but more. And not because it represent shareholders (group of people)- but because its creation represents an advanced economic engine (remember the issue here is dollars) and their dollar is superior to mine (tax advantage, liability protection)- I can’t wait to see a seven layered subsidiaries pursuing a course of action- they would be beholden to no one. I am rambling-out.
January 22, 2010, 12:33 amOren says:
Corporations do not have liability protection (the investors have limited liability for the debts of the corporation, something that lenders are well aware of when setting rates) and are subject to the same civil law of torts as everyone else.
Nor do they have a tax advantage in the US, which takes more in corporate tax revenue (as a share of total tax receipts) than any nation. In fact, the corporate tax rate is so much higher than the individual one that is it highly advantageous for owner/operator corporations to “zero out” at the end of every fiscal year rather than let the corporation earn money.
As to the “advanced economic engine” part, I can see no reason that success should be an impediment to anything. Surely Tiger Woods is a “advanced golf player”, does that mean he should have less of a right to express his political views than me on the grounds that he makes more money? Donald trump is an “advanced real-estate investor”, did he lose his rights?
It would be beholden to its investors. If the investors either approve or don’t care about the the political spending, it will continue. If they disapprove, they can replace the management. If they disapprove of the creation of subsidiaries in general, they can amend the charter to require a majority shareholder vote before one is created.
The luxury of being a shareholder (instead of an owner/operator or owner/manager) is that one can invest without having to be involved in the details of operation. We pay the managers damn well to deal with all the details and I’ll be damned if they are going to bother me about anything other than asking me in which currency I want my dividend check.
No, they don’t care about it. Nevertheless, it would be a violation of their rights to assert that the corporation cannot express a view even if the shareholder wants to.
January 22, 2010, 1:04 amAnonsters says:
Anthropomorphizing is so much fun, isn’t it? Kind of like when we say that corporations can speak, plan, pursue their own interests, or basically do anything else independently of some human being’s intentional act.
But I’m impressed by the VC commentariat’s response to the decision. I didn’t expect broad agreement that the decision was pretty much wrong, which appears to be the general trend of the comments so far.
Yes, well, there’s absolutely no textual basis for time, place, and manner restrictions, for facially neutral restrictions, or any of the other categories the Court has concocted to handle 1A issues. And yet, there they are.
But if it makes you feel better to argue from the purity of a 1A absolutist position, by all means, continue. Particularly since I agree with you. It’s just that that’s not the world we live in now.
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January 22, 2010, 1:24 amAnonsters says:
BTW, I’m pretty damned liberal, myself.
But who in the world would argue that because property itself doesn’t have rights, people don’t have property rights?
I think Ilya is trolling his own blog.
January 22, 2010, 1:27 amAnonsters says:
Last point:
I especially enjoyed Stevens’ footnote 67 on p. 70 of his dissent. It was his own little “I do not think that word means what you think it means” moment.
January 22, 2010, 1:33 amsputnik says:
Is that how libertarians let fascism in?
Through backdoor arguments ?
Through interpreting law not on the facts and merits a but falsely bringing in left/right divide as an excuse?
I noticed on this thread that most of the posters were arguing the law, facts and precedents not based on their political views.
Great job, folks.
Shame on you, Ilya…
January 22, 2010, 1:33 amAnonsters says:
Well, one last last thing, even though this thread is probably effectively dead.
I wonder what impact CU will have on the rest of the Term, if any? I ask because that was about as pissed as I’ve ever seen Justice Stevens in dissent.
January 22, 2010, 1:50 amyankee says:
Agreed. In the case of modern business corporations, there’s no sense in which the message promoted by the corporation is the message of the shareholders. In general, the shareholders invested in the corporation to make money, not to spread a particular message. Unless the number of shareholders is very small, the shareholders have no practical power to restrict the corporation’s speech because they disagree with the message sent by management.
Moreover, when management selects the corporation’s message, it’s completely irrelevant whether anyone involved with the corporation, including management itself, actually agrees with the message. Does anybody at Procter & Gamble actually believe that Crest cleans better than competing brands of toothpaste? It doesn’t matter: Procter & Gamble is going to say so either way, because it would be unprofitable for Procter & Gamble to admit that its product was no better than competing products.
In fact, Proctor & Gamble’s management has a fiduciary duty to cause the corporation to claim Crest cleans better if it would be profitable to do so, even if the Proctor & Gamble management doesn’t believe Crest cleans better. It would be impossible as a practical matter to hold the management liable for breach of fiduciary duty under these circumstances, but if the members of management are faithfully executing their legal obligations they’ll cause Proctor & Gamble to claim Crest cleans better even if they believe it’s false. Management, if faithfully executing their fiduciary obligations, would also be obliged to have Proctor & Gamble fund advertising in support of a candidate who would vote in favor of Proctor & Gamble’s business interests (provided the advertising would be effective, etc.). This is true even if the members of management personally detest the candidate.
In this way, a business corporation’s message becomes completely untethered from anything anyone associated with the corporation actually believes. Management and the directors have an obligation to cause the corporation to spread the message that’s profitable, not the message they, the shareholders, or anyone else actually believes. If the the shareholders find the message objectionable, they are, for practical purposes, powerless to stop it.
Of course, a group of people might get together and choose to spread a message they don’t believe for any of a variety of reasons. They might even use the corporate form to do so. But in the case of business corporations, the untethering of the corporation’s message from any message anyone associated with the corporation actually supports is inherent in the nature of the enterprise, unless the number of shareholders is very small. The same is true of other forms of business organization: LLC’s, partnerships, etc.
This argument doesn’t address Ilya’s (much stronger) argument about media corporations and freedom of the press. However, Ilya’s claim that a business corporation’s speech is “really just speech by people using the corporate form” is completely inaccurate.
January 22, 2010, 2:07 amsputnik says:
I have been cynical for years about our political process and how costly elections have become.
Now, my cynicism has been not only justified, but verified by the Supreme Court of the United States.
From this point forward, believing in a just political system in these United States is nothing but a pipe dream.
Only special interests now will thrive.
I can honestly say that there are no political solutions to anything in my country. Only corporate hand-outs.
I bet there is one hell of a party on K Street tonight!
January 22, 2010, 2:13 amjukeboxgrad says:
danger:
A corporation is a statutory construct. Unlike a person, it has no inalienable rights. It does not have a natural right to exist, and it doesn’t have a constitutional right to exist. It exists only because we’ve chosen to write statutes which allow for its existence. If we can write or unwrite those statutes (and obviously we can), then we can also decide the limits of what a corporation can and cannot do. Anyone who wants to establish a corporation can refrain from doing so, if the statutory constraints are unpalatable to them.
It makes no sense to say that lawmakers are free to unwrite the statutes which allow corporations to exist, but are not free to set parameters with regard to what a corporation may or may not do. The fact that we have chosen to invent a statutory construct of a corporation does not require us to endow it with the rights of a person. Or with any rights at all.
The above analysis would apply to “a congregation or political party” if they were also just statutory constructs, relying on a statutory framework for their very existence. But they’re not.
January 22, 2010, 2:14 amDavid Nieporent says:
I congratulate you on your successful law practice, Mark; I can’t afford to develop and produce a full-length ‘documentary’/video about Hillary Clinton and get it aired on PPV — let alone produce the 30-second commercials advertising the video. I need to do it in combination with other people.
January 22, 2010, 7:44 amRuss Nelson says:
Wow, what an amazingly ignorant bunch of commentators! I’d fire the lot of them. Free speech has many drawbacks. Personally, I’d ban it all, not just corporate speech. STFU, you ignorant trash.
Free speech will always include bad speech. Nut up, or shut up, I say.
January 22, 2010, 8:43 amOren says:
Why is that? Simply because there are more of them does not diminish the power of the shareholders. A majority can still replace management when they please. It’s harder for an individual shareholder to restrict management’s actions because he represents a small fraction of the vote — which seems precisely correct.
Why? The greater power does not always include the lesser power when it comes to constitutional law. Surely lawmakers cannot “set parameters” that states that corporations may not hire blacks or women or Jews. Nor can they “set parameters” that corporate assets may be seized at any time for any reason. Both of these restrictions on government power hold even in the presence of the greater power to repeal the laws on incorporation in the first place.
(Square quotes here are not in the usual sense, but it struck me that you used such a bland euphemism for government power.)
January 22, 2010, 8:48 amShelbyC says:
We’re not endowing it with any rights. It’s a legal fiction that is shorthand for other interests. A corporation doesn’t care if it makes money or loses money, but we treat it in court as if it has an interest in making money because its shareholders do. And we treat it in court as if it had the right to due process because violating its right to due process would violate its shareholders rights. Same goes for its right not to have its property taken without just compensation.
The court has recognized broad rights of expressive association beyond just individuals expressing themseleves, they have the right to form organizations that express themselves, and to form organizatons to advance a purpose that includes expression.
January 22, 2010, 9:02 amShelbyC says:
I keep asking a question that nobody wants to answer: If the first amendment doesn’t apply to corporations, can Congress ban corporate expenditures for speech that advocates the pro-choice position? Or speech that advocates the election of a Democrat?
January 22, 2010, 9:05 amjukeboxgrad says:
nieporent:
Then feel free “to do it in combination with other people.” Gather those people together, and empty your wallets into a pile in the center of the room, and go about producing the video together. There is no logic that says that you can only do this if you start out by establishing a corporation. And if society decides to invent the statutory construct of a corporation, there is no logic which says that this construct must embody all the rights of a natural person, or any rights at all. The construct should embody exactly those rights which lawmakers grant it, and only those rights. If lawmakers have the power to completely abolish an entity (and they do indeed have power to abolish the statutory construct of the corporation), then they surely have the power to describe the paramaters of that entity, which includes what rights it does and does not have.
====================
oren:
Can you demonstrate this?
Why not? What part of the constitution would be violated? Yes, a preference regarding religion would violate the Establishment Clause. But where does the constitution prohibit racial or gender discrimination? Nowhere, except with regard to the right to vote. ERA is a proposal, not an actual amendment.
Why not? What part of the constitution would be violated? Lawmakers are free to decide that the limited liability feature is worth a lot, and should require a lot in return. And someone thinking about establishing a corporation is free to decide if the limited liability feature is worth enough to justify this particular risk. What part of this arrangement is unconstitutional?
Where does the constitution establish “these restrictions on government power?” Where does the constitution say that if lawmakers invent a statutory construct that it cannot also set strict rules on the behavior of that construct? Including rules that would be considered unconstitutional if they were applied to a person, rather than to a statutory construct?
====================
shelbyc:
If lawmakers decided to stipulate that corporations have no right to due process, and no right “not to have its property taken without just compensation,” what part of the constitution has been violated?
Your argument is circular. You’re observing that we treat corporations as having certain rights, and you’re presenting this as proof that the constitution requires us to do so. Trouble is, it doesn’t prove that. We have chosen to do so, but the constitution does not require us to do so.
“Shareholders rights” are a legal fiction, a statutory construct, just like the corporation itself. We are free to define, redefine or undefine the legal construct we call “shareholders rights.”
The courts do not have the right to tell the legislature that if the legislature creates a statutory construct known as a corporation that the corporation automatically has the right to express itself.
There would be nothing unconstitutional about such a ban. Un-American, but not unconstitutional.
January 22, 2010, 9:47 amWhadonna More says:
When a corporate PR guy talks in that role or approves a commercial, he’s notfree to speak. He’s bound by his duties of loyalty and so forth to speak only in the shareholders’ interest.
Sure, but shareholders are free to replace management if they collectively disagree with management’s understanding of their interests, you’ll say. Well, outside of single/related party shareholder situations, that’s a collective, not an individual expression. And, those shareholders have fiduciary duties that limit their ability to advance individual interests.
So nobody’s really free when ficitional people/collectives intrinsically committed to self-interest have speech rights.
January 22, 2010, 9:59 amShelbyC says:
@JGB, look, if legislatures want to intervene in human affairs by creating “statutory constructs” that reflect people’s interests and regulating them, instead of regulating people directly, fine. But they don’t gain any additional power by doing so. So if the government creates a statutory construct called a “property sphere” that includes all your property, and makes it illegal for your “property sphere” to, say, finance terrorism, fine. But they couldn’t prevent your “property sphere” from engaging in political speech simply by saying “property spheres don’t have rights”. And this would be true even if they made “property spheres” voluntary by giving them preferential tax treatment or limited liability. Same goes for corporations.
January 22, 2010, 10:08 amMartinned says:
I agree with many of the points you make, though in the end I think the court got it right. One of the reasons why I think so is exactly the fact that the greater doesn’t always include the lesser. There is a whole stack of caselaw on this, mostly related to first amendment law. If the state gives a permit, even though they don’t have to, they may not attach conditions to this that violate the recipient’s 1A rights.
Here’s an article about the greater vs. lesser argument in the context of Justice White’s caselaw, including 10 pages or so on the argument as such (starting on page 238).
January 22, 2010, 10:16 amSeamus says:
So New York Times Co. v. Sullivan was wrongly decided, because the Court wasted all that time discussing the freedom of the press, when it should have cut to the chase and said, “The NYT Company is a corporation; if Alabama chooses not to give it free press rights, then it doesn’t have any. Next case!”?
January 22, 2010, 10:18 amJRinDC says:
Oren writes:
You have actually come around to my very point. The answer is shareholders by and large do NOT think “spends money on political causes I agree with” is an important criteria, BUT that is because they generally don’t think corporations should be spending money on political causes! Why is this? Because it is not the purpose of the corporation as much as it is because they have no say in the candidates/issues supported. It is not why I own stock.
January 22, 2010, 10:23 amSeamus says:
I totally agree! It’s outrageous that corporations like the New York Times Company and NBC can use the artificial device of limited liability to amass money and disseminate their political beliefs so much more effectively than I can as an individual. We need laws like the ones Chavez has passed in Venezuela to level the playing field with these moguls! (And while we’re at it: The Pentagon Papers case was wrongly decided. If Kay Graham and Punch Sulzberger had been operating the printing presses themselves, sorta like Ben Franklin, then maybe they’d have deserved First Amendment protection. But faceless artificial creatures like the New York Times Company and the Washington Post Company only existed because the government created them, so they should only have so many rights as the government was willing to afford them. That’s right, isn’t it?)
January 22, 2010, 10:30 amMartinned says:
And the way to fix that is to improve stockholder control over management’s decisions in this respect. Make all political donations subject to a mandatory stockholder vote, or whatever. But that’s up to the states, and not an adequate reason for treating companies differently from natural persons under (this part of) the constitution.
January 22, 2010, 10:34 amShelbyC says:
Dunno about that. If I own stock in a company, I expect them to spend money on political causes to the extent necessary to maximize profit and protect my investment. If I own stock in a coal company, I don’t expect them to roll over and let the governemnt regulate all the profit out of coal mining and make my investment disappear.
January 22, 2010, 10:35 ammikeyes says:
And if a corporation spends “billions of dollars” advocating for a candidate that I approve of, I still would rather have my share of the billions.
One of the usual obligations of a for profit corporation is to make a profit large enough to please the stockholders who have the option of selling out and buying another stock if that corporation fails to please. At some point the self interest that allows you to keep stock in a company whose speech is abhorrent to you will not be enough incentive if they spend money that could have gone to you, especially if that speech is not reflected in the bottom line.
January 22, 2010, 10:36 amDavid M. Nieporent says:
It’s a routine facet of first amendment law. The very notion of a ‘public forum,’ for instance. The government is of course not required to establish public parks or university campuses — but once it does so, the first amendment does not permit it to say that they can be used for pro-war rallies but not anti-war rallies.
And even for non-public fora: the government is not required to provide public housing for the indigent — but if it does so, it cannot condition eligibility for such housing on a person’s agreement not to criticize the government.
If you want an exact quote — something you’re so fond of — see Republican Party of Minnesota v. White, which held that Minnesota couldn’t forbid judicial candidates from campaigning:
Emphasis added.
January 22, 2010, 11:14 amOren says:
And let’s suppose you want to film somewhere and need to put down a bond (this is common for movies), do you fill out 1000 personal bonds for 1/1000 of the total or do we allow this agglomeration of people to sign a bond against its assets as one entity? Let’s further suppose to want to delegate authority to some day-to-day managers so that all 1000 people don’t have to ratify every decision. When the entity receives a donation by check or credit card, where are you going to put it? Does the entity have a bank account or do they have to write the check directly to one of the managers (or 1000 small checks to each of the principles)? If the entity wants to lease property, does one of the principles have to sign?
There are hundreds of quotidian details that go into organizing and operating even the simplest corporation (I’m an owner/operator and even that’s a ***** nightmare sometimes) that cannot be swept under the rug with “Well, pile your money together and do it”.
Demonstrably false. Lawmakers have the power to repeal the laws allowing incorporation but they do not have the power to forbid them from hiring Jews or mandating that they donate only to male candidates.
Surely lawmakers cannot “set parameters” that states that corporations may not hire blacks or women or Jews.
Why not? What part of the constitution would be violated? Yes, a preference regarding religion would violate the Establishment Clause. But where does the constitution prohibit racial or gender discrimination? Nowhere, except with regard to the right to vote. ERA is a proposal, not an actual amendment.
Sure, public venue law. New York City may chose to forbid all events from Central Park. Once they allow some events, however, the must do so in a content-neutral manner — they cannot allow Rock Against Racism but forbid Rock For Racism despite the fact that they can forbid both. Similarly, the State of California can chose not to provide any welfare assistance to its citizens whatsoever. It cannot, however, restrict that aid to newcomers to the state (Saenz v. Roe).
The general principle is that even in areas in which the State is not required to do anything, any action that it does take must comport with the Constitution.
Now we’ve entered the surreal.
(1) Gender is a ‘suspect classification’ in equal-protection law and subject to intermediate scrutiny under 14A (see, e.g. Mississippi University for Women v. Hogan or Craig v. Boren). The ERA would have elevated this to strict scrutiny but it clearly exists prior to the proposal, and independent of the ERA.
You will note, interestingly, that the MUW is a wholly-created construct of the State of Mississippi. The State has the power to dissolve it entirely. They do not, as it turns out, have the power to only admit women.
(2) Racial, national origin or religious distinctions automatically get strict scrutiny anyway.
At any rate, any level of scrutiny (heck, even rational basis) would forbid a law that forbade corporations from hiring blacks, women or Jews. So despite the fact that Congress can eliminate corporations entirely, they cannot restrict them in ways that violate the provisions of the Constitution.
The same part that would offer a tax break for corporations hiring only blacks or Jews or women (or not hiring them).
Your reasoning might go:
(1) Congress can set the corporate tax rate at 25%.
(2) Congress can set the corporate tax rate at 26%.
(3) Congress can therefore set the corporate tax rate at 25% for some and 26% for others based on any criteria they want.
It is the bolded part that is not true under current doctrine. The distinctions must be held to some form of constitutional scrutiny — strict for race/religion/nationality, intermediate for gender, rational basis for the rest.
Scrutiny (of the appropriate level) under the equal protection clause attaches to the distinction, not to the object being held to the distinction.
For instance, the University of Illinois is a construct under State law. The State of Illinois can, if they like, prohibit the teaching of Biology but not Chemistry. They cannot, however, prohibit the admission of women but not men or Jews but not Muslims or Blacks but not Asians. You cannot evade the rule by saying “well, it applies only to the construct of the university, not the individual” — the law makes a distinction that is impermissible (insofar as it is not justified under the appropriate level of scrutiny).
This is a lot of words for a side argument here, but the obvious truth is that the greater power to dissolve an institution or construct does not include the lesser power to regulate it in a way that violates the Constitution. University of Mississippi Women v. Hogan proves as much.
Would it comport with your sense of the Constitution for the US government to seize all the property from the Catholic Church or Episcopalians (or the Mormons, but they have less cool stuff to take)?
Remember, the property is not held in the title of an individual but collectively by the Catholic Church as an entity. If that entity has no right to property then the government could just take it.
Those rights are born out of the contractual charter by which the investors originally pooled their money. Next you are telling me that individuals ought not to have the right to make enforceable contracts with each other?
My right to reside in my house is guaranteed by a contract we call a lease. Does that mean the government is free to define, redefine or undefine the legal construct of my lease and throw me out on my ass? My right to a monthly paycheck derives from an employment contract, can the government undefine that as well?
According to your theory of the US Constitution, distinctions based on the content of political speech don’t need to pass strict scrutiny? That’s interesting, to say the least, but it’s not the Constitution we have.
No, if shareholders thought this then every corporate charter would include a provision forbidding (or restricting) spending for political causes.
The vast majority of shareholders do not care either way if their companies spend money on political causes. They will vote neither to restrict it nor to require it. As such, there are no restrictions or requirements.
January 22, 2010, 11:20 amMark Field says:
And when the corporation you hire gets sued, can it defend itself in pro per?
January 22, 2010, 11:25 amOren says:
Why would this be up to the States and not part of corporate charter, which is already under stockholder control?
I can imagine two groups of investors in the same State, one that would like management to be able to spend on political causes without a shareholder vote and one that would like a vote (and maybe a third that would forbid it entirely in all cases).
January 22, 2010, 11:27 amDavid M. Nieporent says:
Several people here have claimed, essentially, that corporations are creations of government; they are not. Corporations are private organizations formed by private individuals. (Not always; there are municipal corporations, for instance. But the majority of corporations.) The government does set forth some parameters for their operation, and does grant limited liability to their shareholders (note: not to the corporation), but it does not create them.
January 22, 2010, 11:29 amOren says:
Obviously a majority of shareholders do not agree with you. Otherwise, you could get together and elect a board that would forbid management from spending any money on political causes and instead funnel it to dividends.
David M. Nieporent, your example is better than mine. There’s something about the Mississippi University case that bothers people. Craig v. Boren might have been too obvious (the States can forbid 18-21 year olds from drinking entirely but may not only forbid males) but the “right” in question is so trivial that people look down on it despite being a huge leap forward in the Court’s interpretation of the Equal Protection clause.
January 22, 2010, 11:36 amMartinned says:
It could be up to either. I merely meant to point out that company law is an area of state law, and that the states could change the rules in this regard if they so saw fit. Given how hard it is to get something like this done in an existing corporation, even if a substantial majority of the shareholders would (theoretically) favour it, I would be in favour of some kind of change to the state company law on this point, though maybe only better disclosure, and/or maybe only applied to for-profit companies.
January 22, 2010, 11:38 ambyomtov says:
“Corporate speech” is really just speech by people using the corporate form.
No, no, no. It isn’t. It’s speech by corporate managers using resources that belong to the shareholders.
When corporations “speak,” they are just a means that individuals use to exercise their rights of free speech — often a more effective means than the available alternatives.
No again. I don’t buy shares in a corporation so the CEO can use my money to endorse candidates he likes. Forget it.
January 22, 2010, 11:38 amMartinned says:
Really? Have you ever tried getting a majority of shareholders together in a decent sized company to throw out the board, or to change the company’s MoA in a way its board didn’t like? (For the record, I haven’t either.) Have you any idea how cumbersome, expensive and time consuming that is?
January 22, 2010, 11:40 amOren says:
Even if it did, it could not apply unconstitutional restrictions on their actions.
January 22, 2010, 11:41 amOren says:
The shareholders wrote the charter that determines the procedure! They never bothered to make it easy because THEY DON’T WANT TO.
The fundamental problem with this line of argument is that you assume that the shareholders give a ***** about any of this. Only a tiny minority can be arsed to even vote in board elections. They have demonstrated, time and again, almost perfect apathy.
January 22, 2010, 11:48 amOren says:
Managers that are beholden to and can be replaced by the shareholders.
You are a minority shareholder in this regard. The vast majority do not care whether the CEO spends money on politics, hookers, blow or corporate jets (so long as he doesn’t get caught with the middle two, that would adversely effect the stock price). They care about the stock price and that’s it.
You might not like that shareholders don’t share your priorities but that does not give you a minority-shareholder-veto over the managements actions. The majority of shareholders determine the rules, not the loudest ones.
January 22, 2010, 11:51 amArthurKirkland says:
The government determines the rules (as it should, with respect to any entity that wishes to receive an artificial limitation of its shareholders’ liability).
That is one of the reasons I believe the greater remorse concerning the Citizens United decision, in a decade or so, is likely to belong to corporations and conservatives.
January 22, 2010, 11:58 amraoul says:
Oren: you lost all credibility when you argue that corporate tax rates here are higher. The effective rate is amongst the lowest which is what truely what matters-also-campaign expenditures are pretax dollars. Ditto on your LLC remarks. Creating a fictitious entity brings out a lot of fictitious opinions. I wonder what kind of freedom of speech Class B shareholders hold. Let’s be simple here: Corporate structures are, definitionally, government REGULATED enterprises. Just because they are created by a writ of paper they don’t gather “personhood” as in (quoting Ilya) “personhood of the corporation”- what a risible legal concept. Can’t wait to apply it everywhere: the personhood of my car while I was driving during the accident- or the personhood of my body parts when the assault occurred-better yet: the personhood of government-it is this last one that should worry all Randians/libertarians/corporalists.
January 22, 2010, 12:11 pmMartinned says:
Are we abandoning the assumption of perfectly rational stockholders now? After all, if stockholders only cared about the stock price (dividends?), they would do the opposite of what you recommend. They would stop the CEO from spending money on non-business related politics, hookers, blow or corporate jets, since that would almost certainly make more funds available for dividends.
So clearly stockholders care about other things as well, like not having to turn up at stockholders’ meetings. If that is the case, there is an argument for (libertarian) paternalism, for example by forcing stockholders to opt the company into any political activity, or at least by forcing detailed discloser by management to the shareholders.
Is the company a perfect instrument of stockholders or not?
January 22, 2010, 12:12 pmGreg Hamer says:
“right” is an ambiguous term. Positive rights = privileges; negative rights = immunities. voting is a privilege; free speech is an immunity.
January 22, 2010, 12:17 pmDangerMouse says:
Several people here have claimed, essentially, that corporations are creations of government; they are not. Corporations are private organizations formed by private individuals.
That’s true. Wouldn’t it be accurate to say that people have a “right” to form a corporation, in the sense that it’s the exercise of the right to peacably assemble?
Juke, it was amusing watching your arguments fall apart. I can’t believe that you even seriously believe what you’re arguing.
January 22, 2010, 12:24 pmMartinned says:
Unequivocally no. At no point in time has any government at any level anywhere been held obligated to have a system of company law. Corporations used to be created by Royal Charter or by statute, until a statute was enacted that made it possible to establish a corporation without further intervention from any branch of government. However, that statute can always be repealed again.
Hohfeld rules!
January 22, 2010, 12:33 pmOren says:
What does the government grant of limited liability to the shareholders have to do with the internal organization of the corporation? Limited liability has to do with the relationship of the shareholders to others, not their relationship amongst themselves.
Moreover, how is this limitation “artificial” any more than the imposition of liability in the first place?
And subsequently find that they have a subpar CEO because he has moved to a company without those restrictions. Or they would have to pay him more to make up for the restrictions. What they allow him to spend on corporate jets is a form of non-monetary compensation.
Finally, the decision of what politics are “business-related” falls first to management unless otherwise restricted by the board.
US combined tax rates are either second or third in the world behind Japan and Germany (depending on the State, obviously — most other countries do not have a per-State or province corporate tax).
Whoops, never a good idea to let numbers get in the way of a good argument though.
Indeed. And they can be regulated only in a fashion that comports with the Constitution. That much is undisputed.
January 22, 2010, 12:44 pmMark T says:
I am puzzled that so many arguments treat the issue as one of all corporations vs all natural persons. All large media organizations are corporations. Yet their political speech, e.g., endorsing a candidate via an editorial, is absolutely protected. None of the arguments above against the decision make sense when applied to a corporation that makes political speech through a newspaper. It is not a natural person. So where is the intellectually coherent interpretation of the First Amendment that reconciles “political speech of corporation that owns a newspaper: protected” vs. “political speech of corporation that advertises in same newspaper: banned”? You can’t say “one is the press” – the press has agreed to run the ad in the “banned” case.
January 22, 2010, 12:50 pmjukeboxgrad says:
shelbyc
When lawmakers first created the statutory concept of the corporation, they were not ‘intervening in human affairs.’ They were giving people a choice that they did not previously have.
Why would this “be true?” If lawmakers invent a concept called “property spheres,” and if I am free to participate, or not, in this concept, which part of the constitution requires that “property spheres” have the right to engage in political speech?
================
martinned:
Thank you for that interesting article. I haven’t absorbed it yet, but I notice this interesting passage: “among contemporary Justices, Chief Justice Rehnquist seems to be its [the argument that the greater includes the lesser] most enthusiastic endorser.” So it’s nice to know that I have him on my side.
I agree that “the greater doesn’t always include the lesser.” But I claim that it does, in this instance. The article points out that it is indeed often or usually the case that the greater includes the lesser. I don’t claim to be an expert on this concept, but it strikes me as relevant, and I think it’s being overlooked.
There are complicated issues here, and I think closer analysis is warranted. I think that analysis would show that the situations are distinguishable. In the situation of the state requiring a permit for a public demonstration or assembly, it makes sense that the state’s power to do so should tilt in the direction of being narrow, and that the burden is on the state to show that the power, and any expansion of that power, is a matter of necessity and compelling public interest. The right to assemble, demonstrate, and speak in public seems utterly fundamental to any concept of free speech. On the other hand, the idea of collective expression under the umbrella of limited liability is not similarly fundamental. If today is the day that the state invents the concept of the limited liability corporation, all avenues of speech that were available to the shareholders yesterday are still available to them today, even if the state says that the limited liability corporation has no right to speak. The state may choose for this new entity to be a new avenue for speech, but there is nothing in the constitution which obligates the state to do so.
January 22, 2010, 1:00 pmjukeboxgrad says:
nieporent:
See what I just said to martinned.
If the state establishes a public park, is the state prohibited from stipulating that it is only to be used as a playground for children, and may not be used for any rallies at all, or for any political rallies? I think not. Feel free to demonstrate that I’m wrong. Because you haven’t even demonstrated your less expansive claim, that “the first amendment does not permit it to say that they can be used for pro-war rallies but not anti-war rallies.” Really? How do you know? Which case law establishes this?
That’s not what I have claimed. I’ve claimed that they exist inside a specific framework established by the state, and the state has power to define, redefine or undefine various characteristics of that framework.
================
danger:
No. The constitution gives you the right to peaceably assemble. It doesn’t give you the right to assemble in a special framework that limits your liability. That right is granted by the state, and it can be modified by the state, without interfering with your right to peaceably assemble.
================
seamus:
In my opinion, it would be permissible under the constitution for a state to rewrite its incorporation statutes to say that a corporation has no right to speak, or to use a “press.” So if I wanted to establish a newspaper in that state, I would need to use some other form of organization, rather than incorporation. So yes, under the constitution a state can choose “not to give [corporations] free press rights.”
I agree. Good point. It actually might be “outrageous.” And there’s nothing in the constitution which prevents a state from addressing this problem in the manner I described.
================
mark t:
See what I just said to seamus.
January 22, 2010, 1:02 pmjukeboxgrad says:
oren:
That’s for your group to decide. And it has many choices, aside from organizing as a corporation. Likewise for the other details you mentioned. Groups organized for collective action, and addressed all the problems you mentioned, long before the concept “corporation” was invented.
You are correct. I was carelessly overlooking 14A and the Equal Protection Clause, and I apologize for the time wasted as a result (I realize you spent a lot of time and effort addressing this point). Thanks for reminding me of what should have been obvious to me.
I would like to see how “public venue law” is supported by the constitution. Also, I appreciate that you have introduced the helpful concept of “content-neutral.” If the state can restrict speech (e.g., in Central Park) as long as it does so in a “content-neutral” manner, why can’t the same principle be applied to corporations?
I realize I have made a more expansive statement (that the state has the right to restrict corporate speech even if the restriction is not content-neutral). But I obviously don’t mind much if I have to retreat to the less expansive statement (that the state has the right to restrict corporate speech, as long as the restriction is content-neutral), because the less expansive statement still makes the basic point I’m trying to make. In the meantime, though, I haven’t seen proof that either statement is wrong (although I’m acknowledging that I was carelessly overlooking 14A).
Is there case law that says the Equal Protection Clause means that “they cannot allow Rock Against Racism but forbid Rock For Racism?” I’m just asking. I’ll take your word for it if there is.
That case is about the right to travel, so I don’t see much of a connection. I also note with amusement that Rehnquist and Thomas dissented.
But the corporation does not consist only of “the contractual charter by which the investors originally pooled their money.” If it did, this discussion wouldn’t be happening. Trouble is, that “contractual charter” embodies some special features that are endowed by the state, and the state has significant latitude in designing those features, and in setting conditions and limits on the activities of the corporation. (Although I now concede that the state has certain constraints in this regard, imposed by 14A.)
If the state is the party from whom you are leasing, they are indeed free to put all sorts of weird crap in the lease agreement (e.g., ‘we reserve the right to throw you out on your ass’), as long as it doesn’t violate 14A. And you are free to do business with them, or not. If your lease or employment contract is with someone other than the state, then the state is essentially uninvolved. This is unlike a “contractual charter by which the investors originally pooled their money,” because that happens inside a special framework specifically established by the state. By virtue of that framework, the state establishes certain conditions and grants certain rights. So these various examples are not all the same.
Now that you woke me up about 14A, I acknowledge that “distinctions based on the content of political speech … need to pass strict scrutiny.” But this doesn’t tell us that the state can’t forbid all political speech by corporations. And to go a step further, there might be certain “distinctions based on the content” that don’t violate 14A. The clearest violations would have to do with such things as race (and that’s where I was making a big mistake earlier). What about pro-war vs anti-war (as an example)? I’m not so sure that this distinction (for example) would be prohibited under 14A.
January 22, 2010, 1:03 pmAnonsters says:
Sure you can.
If the corporation is prohibited from placing the ad, the press has nothing to agree to.
If the press did run a prohibited ad placed by a corporation, the punishment (if any) wouldn’t fall on the press. It would fall on the corporation who violated the restriction against its placing the ad.
January 22, 2010, 1:09 pmyankee says:
Nope. The initial charter is written and adopted by the incorporator (the law firm hired by the people who want to create the corporation). For amendments to the charter:
Delaware General Corporation Law § 242(b)(1) (emphasis added). Note that the amendment is written by the incumbent management and the shareholders’ power is limited to an up-or-down vote. There is no procedure for the shareholders to write their own charter amendment and unilaterally adopt it without the involvement of management.
January 22, 2010, 1:16 pmraoul says:
Oren: edify yourself:http://www.cbo.gov/ftpdocs/69xx/doc6902/11-28-CorporateTax.pdf-US corporate taxes are among the lowest. The corporate press issue is such a different animal that it is not worth conflating.
January 22, 2010, 1:23 pmOren says:
Because the restrictions at issue here are manifestly not content neutral. They do not treat ads promoting a candidate the same as ads promoting toothpaste — if that is not a content-based distinction then the phrase has no meaning.
January 22, 2010, 2:13 pmOren says:
But the shareholders have the right to replace management.
You are right though, I overreached. They cannot accomplish it directly but must appoint management to do this.
January 22, 2010, 2:15 pmOren says:
Quoting Ward v. Rock Against Racism
I think that suffices to establish that the State may make distinctions between Rock Against Racism and Rock For Racism or pro/anti war rallies.
January 22, 2010, 2:19 pmJoe says:
Actually, by definition, corporations are a separate legal person. To think of a corporation as an association of individuals is to simply away the corporation.
If that oversimplification works, how about this one: Really, state action is just the action of a collective group of individuals that comprise the state. Uh, no.
Further, in each case, basic economic theory (either agency cost or public choice) dictates that the real human beings who are making decisions to act on behalf of the entity (corporation or state) are not necessarily serving the interests of or doing the will of the individuals (or even the majority of individuals or majority of voters) that comprise the entity.
January 22, 2010, 3:14 pmWhadonna More says:
So the corporation is the means MANAGEMENT uses to speak? It’s not the means of the owners?
January 22, 2010, 3:34 pmDavid Nieporent says:
Another obvious example is RAV v. St. Paul. States can ban “fighting words,” but RAV held that they can’t ban only some categories of fighting words. The greater power did not include the lesser.
January 22, 2010, 3:37 pmzuch says:
TPM restrictions are valid for laws or regulation that is content neutral. And for things that aren’t traditional open public fora (as corporate speech would arguably be), only viewpoint neutrality is needed. But allowing only one side may well violate this. I’d note that for non-public places, even viewpoint neutrality is not required (see, e.g., the case on abortion counseling and federal funding; there the gummint has required that one and only one point be presented by corporations that are receiving funds, and this was upheld by the courts….)
I’m not sure why you’re demanding an answer; you could look this stuff up yourself.
Cheers,
January 22, 2010, 3:42 pmDavid Nieporent says:
And your basis for these claims is? What cases say these things?
January 22, 2010, 3:50 pmzuch says:
It depends on what the meaning of “is” is. This is a right (they even used that word), even if you choose to call it a “privilege”.
Here’s what Malvolio said:
Go away.
Cheers,
January 22, 2010, 3:53 pmOren says:
And management answers to the shareholders. The owners have delegated (under some specific contractual terms) their rights to their agents. The agents can then exercise those rights.
No complex organization can possibly function without delegation.
January 22, 2010, 3:54 pmOren says:
Corporate speech is not a forum (public or otherwise). TV advertisements are a traditional open public forum in which a corporation might seek to express itself. When they do, the government may not restrict the message based on its content of promoting a candidate rather that promoting toothpaste.
All of this, of course, ignores the fact that political speech is more protected than commercial speech anyway.
January 22, 2010, 4:03 pmmethodact says:
More like toxic derivatives. Think telco immunities. Hell, think the assault on Usenet (disclaimer: “The first rule of Usenet is, you don’t talk about Usenet”), by New York State Attorney General Andrew M. Cuomo, and his attempted shake-down of hundreds of thousands of dollars, each, from telcos and cable co’s in order to fight Usenet.
Think secret laws and lawmaking such as copyright cabals where copyright is not only extended out from all of several years to now into perpetuity, where the laws are made behind closed doors by corporate/government tyrants and then trotted out with massive propaganda campaigns to condition the public to more slavery (where one faces up to 8th Amendment violative 5 years of torture and risk of life-and-limb captivity and/or up to a quarter-million dollar fines for the not properly sanctioned possession or use of a mere song.
Think the global warming scam where select corporations were poised to trade in carbon offsets and secret lawmaking to foist carbon taxes on every facet of life itself by secret behind closed doors machinations under the auspices of the Copenhagen Climate Summit in 2009.
The Founding Fathers set up a republic instead of a direct democracy in order to keep the whims of the majority from trampling the rights of minorities. The artificial personhood of corporations now comes along and changes everything.
Think of all those First Amendment exceptions carved out for others, but not for corporations, where money is considered the highest form of free speech in a winner takes all, government for sale to the highest bidder.
January 22, 2010, 4:16 pmShelbyC says:
There’s a little incoherence here. My comment addressed the argument that corporate speech wasn’t protected by the first amendment. It sounds like you are arguing that the restrictions at issue are valid TPM restrictions. Are you arguing that corporations don’t have first amendment rights, or that the restrictions here are valid TPM’s?
The TPM argument strikes me as a dead-bang loser. The fora at issue are are radio, TV, and cable communications, which are traditional public fora. And a ban on “electioneering communication” is not content neutral.
January 22, 2010, 4:39 pmDavid Nieporent says:
It also ignores that Zuch’s original claim is wrong; it’s not the case that “TPM restrictions are valid” for content neutral laws. Government can’t just go around passing laws restricting speech merely because those laws deal with TPM; those laws must be reasonable and narrowly tailored and must leave adequate alternatives.
January 22, 2010, 5:44 pmBruce says:
Your right to swing a fist ends where my nose begins. Property can extend my nose to the point where it’s in your business all the time, both 1) attractive nuisance- you are unreasonably tempted to punch me, and 2) increased accident risk- as you exercise your fist or punch someone else, you are more likely to encounter my nose.
I like your argument. I think the US Constitution would be better if John Locke’s Right to Property was in it.
January 22, 2010, 6:09 pmzuch says:
TPM is one factor in analysis of what First Amendment rights one has. If there are “valid TPM restrictions”, then no First Amendment free speech right exists as applied to that circumstance. Once again, are you familiar with the outlines of free speech law? If not, perhaps you ought to brush up before commenting again.
Cheers,
January 22, 2010, 7:19 pmzuch says:
Actually, no. They are not government owned property, so the “public forum” doctrine doesn’t apply at all. You have no “free speech right” to jump on the MSNBC set to spout your mistaken views of the First Amendment. There is arguably a “free speech” consideration involved WRT broadcast media, where the government regulates a limited resource. There, the government must be even-handed, but they are not without recourse as to types of content (see, e.g., the “Seven Dirty Words” case [FCC v. Pacifica]).
Cheers,
January 22, 2010, 7:25 pmOren says:
Zuch, the fact that the radio is not owned by the TV seems to suggest an even smaller role for government power than speech that takes place on public property.
It’s one thing to require a permit to hold a rally in a public square and quite another to defend the government’s right to prevent you from holding that same rally on private property and with consent of the owner.
January 22, 2010, 7:36 pmzuch says:
I wasn’t clear. I meant that corporate speech is not a “traditional open public forum”. In fact, it’s arguably not even a limited public forum, so that not even viewpoint neutrality is needed (and in fact not wanted). Sorry for any confusion.
It is true that your broadcast media may not censor or change political campaign ads at all (our GM when I was a radio host told us about Barry Commoner, who had an ad out that started “This is Bullsh*t!”, which, despite FCC v. Pacifica, was required to air as produced). But that’s hardly required by the First Amendment. Broadcast law is different from First Amendment law (see, e.g., Pacifica), and is one of statutory construction. They arguably could, consistent with the First Amendment, ban all political advertising on broadcast TV). But that would not be a very wise thing to do.
Cheers,
January 22, 2010, 7:38 pmzuch says:
Huh???
Cheers,
January 22, 2010, 7:39 pmzuch says:
You’re right about the additional requirements. But I didn’t say “all TPM restrictions are valid”. What I was trying to say is that there is no unlimited free speech right to all TPMs; some restriction on this (such as, say, regulating speech done through the “manner’ of corporate-financed ads) might withstand court scrutiny under the proper facts. I said this because this thread has for the most part ignored the fact that there are many restrictions in freedom of speech that have been upheld by the courts, and the proponents of corporate speech seem to insinuate than such speech deserves the same protection as does that of persons, ignoring the intricacies of First Amendment law that already treats different persons, different locations, and different media or “manners” differently, even before Citizens United….
Cheers,
January 22, 2010, 7:47 pmOren says:
Surely the need for content-neutrality of government regulation applies in even more force when the speech takes place solely on private property with the consent of the property holder.
Let’s drop broadcast TV and talk only about the cable/satellite/newspaper companies for a second (as you correctly point out, broadcast makes things difficult and, IMO, is not necessary). That is speech that takes place entirely without any government property or spectrum being used. Whatever right the government would have to restrict speech in a public forum would be even less present when the speech happens entirely in private.
January 22, 2010, 8:48 pmjukeboxgrad says:
oren:
Fine, let’s assume for a moment that any restrictions must be content-neutral (although I’m not sure why this is the case, aside from considerations that arise as a result of 14A, and 14A is not unlimited in scope). If so, then what prevents the state from restricting corporate speech in a content-neutral manner? Imagine that the old laws of incorporation are repealed, and the new law restricts all corporate speech. For example, the corporation can spend no more than a certain percentage of its gross revenues on advertising. Or the corporation is prohibited from using any form of TV advertising. How is this unconstitutional? Because in this scenario, we do indeed “treat ads promoting a candidate the same as ads promoting toothpaste.”
The state can create a new park, or a new class of parks, where all public rallies and demonstrations are prohibited. Right? And this is OK, even though it’s a speech restriction, because the restriction is content-neutral, right? How is this different from the state creating a new form of business organization (called a “corporation”), which embodies similarly content-neutral restrictions on speech?
Thanks, that’s helpful, but it just raises more questions. The issue is not as simple as what you are portraying. First of all, the Court does not uniformly say that all restrictions must be content-neutral. See here:
This passage suggests that a content-based restriction is OK as long as it is not being done “merely because public officials disapprove the speaker’s views.” But if all political speech (by corporations) is prohibited, this is not “because public officials disapprove the speaker’s views.” Because all political views are prohibited, not just political views where “public officials disapprove.”
And here is another reference supporting the idea of a content-based restriction, under certain conditions:
There’s another troublesome issue, which goes back to what I said at the top of this comment regarding 14A. Yes, there are various cases which assert problems with content-based restrictions. And what is the ultimate authority behind that assertion? These assertions seem to rely greatly on 14A. Trouble is, 14A would seemingly prohibit only certain kinds of content-based restrictions. For example, let’s say a state creates laws of incorporation which stipulate that a corporation may run ads critical of Jews but may not run ads critical of Christians. I understand how this is a content-based restriction that violates 14A. Trouble is, I don’t understand how a ban on political advertising by corporations violates 14A.
It seems to me that in certain cases which state that restrictions must be content-neutral, the Court has gone beyond what 14A actually says. Those darn activist judges, legislating from the bench.
====================
nieporent:
Thanks, that’s helpful. I had never read that case before. The Court’s opinion was delivered by Scalia. He makes the point that the underlying issue is to avoid “viewpoint discrimination.” He says this:
Scalia is discriminating between “content discrimination” and “viewpoint discrimination.” He is saying that the former can be permissible if it does not embody the latter. That is, if it is not “conditioned upon the sovereign’s agreement with what a speaker may intend to say.” That is, if “there is no realistic possibility that official suppression of ideas is afoot.” (This is the same idea that came up just above, regarding communications that are prohibited “merely because public officials disapprove the speaker’s views.”)
For example, it would not be permissible to prohibit political advertising by corporations on the basis of whether that advertising is pro-D or pro-R. But if the ban does not embody that sort of “viewpoint discrimination,” then it might be permissible. At least according to Scalia, anyway.
The fact that they are not contrary to the constitution.
January 23, 2010, 10:05 amNed Danison says:
This is an excellent discussion. It’s one with strong evidence and arguments on both sides that has me vacillating between two minds. I tend to side with the blogger nonetheless.
As for our foreign overlords, what seems to be assumed in most of the comments is that people are automatically swayed by whatever slick ads or slogans or movies or smear campaigns — whatever corporate money can buy. Bill Gates could just as easily decide to drop a few million into a political billboard campaign as could Wen Jiabao. The question is, are the masses so uncritical, such kool-aid drinkers that they’ll abandon all principles and all rational thought and bow down to whatever voice by virtue of cash backing speaks the loudest?
If that is true, then our problem is not money or corporations. It’s education. It looks like the way we do things is assume everyone is so stupid and so in need of protecting that we fuss over regulating speech, and eventually the only ones with real power are the regulators.
January 23, 2010, 10:10 amjukeboxgrad says:
ned:
This is a fair question, but in a way it’s barking up the wrong tree. It’s not just a question of understanding how voters make decisions. It’s a question of understanding how lawmakers make decisions. Many elections are decided by a small margin. If I’m a lawmaker, this is an important fact that I never forget. If you come to be and tell me that you have a big pile of money that you are going to spend either supporting me or supporting my opponent, I am going to pay close attention to you, even if I believe that most voters are not “such kool-aid drinkers that they’ll abandon all principles and all rational thought and bow down to whatever voice by virtue of cash backing speaks the loudest.” That is, I don’t have to believe that most voters are easily swayed by advertising. I only have to believe that some voters are easily swayed by advertising. And this is a highly rational belief for a lawmaker to have.
In order for you to control the election outcome, you don’t have to influence the thinking of every voter. In a close election (and many are indeed close) you only have to influence the thinking of a few voters. When you come to me and remind me that you are willing and able to do so, you are in a position to greatly influence my behavior as a lawmaker.
Last year, “for the first time ever in U.S. history, the candidates for president raised more than $1 billion” (link). This is powerful proof that either political advertising works, or that (at the very least) politicians believe that it works. Given this belief, anyone who is in a position to throw unlimited amounts of money at me is in a position to control my behavior as a lawmaker. In the end, you spending your money to either support me or oppose me is not very different from putting the money directly in my pocket (or my opponent’s pocket).
It’s important to understand another aspect of how this dynamic plays out, in the real world. A corporation (or industry, or foreign government) that wants to own US lawmakers might be inclined to hedge their bets, and make deals with both Rs and Ds. The result is that the spending leads to the desired outcome, regardless if the D wins or the R wins. Meanwhile, any candidate who is not willing to play this game starts off with a big disadvantage and will probably get no traction at all. They won’t make it through the primary. The result is that voters are pacified, because they have been given the illusion of choice. As I have often said, it would be good if we had a two-party system.
Aside from all that, it’s a big mistake to underestimate the number of Americans who are indeed quite ignorant, and who indeed might be inclined to “bow down to whatever voice by virtue of cash backing speaks the loudest.” Somin has written quite a bit about voter ignorance (example).
January 23, 2010, 11:48 amMikee says:
The CEO of Whole Foods spoke out, as an individual, on public policy recently. He spoke on a subject in which he was expert, and simply stated what he regarded as factual information and likely outcomes of policy decisions.
Whole Foods as a corporation was castigated in the press by opponents to his views, subjected to an attempted boycott, and the CEO had to spend an inordinate amount of time defending his company’s public relations instead of running his company.
That is one outcome of corporate spending on politics.
Another is that Senator XYZ will shake hands with the CEO of a Corporation from his home state, or any state, and after introductions will say, “Your corporation’s monetary support of my campaign for reelection would demonstrate that your corporation is on the right side of policy. How much can I sign you up to give? By the way, that law about regulating your industry is coming up for a vote next month.” Government extortion, in other words, just got a lot more lucrative.
January 23, 2010, 12:03 pmjukeboxgrad says:
mikee:
Correct. I just made the same point here.
January 23, 2010, 12:16 pmmark t says:
That would be a blatant restriction on the freedom of the press to publish the content of its choosing. It has nothing to do with “punishment”. It is a prior restraint: press, you may not publish that ad. Patently unconstitutional.
January 23, 2010, 6:02 pmmark t says:
.================mark t:See what I just said to seamus.
That is intellectually coherent but it does not RECONCILE the two propositions, because one of those was that a state cannot ban a news corporation’s political speech. Your argument says a state can. I disagree with your argument but that is not relevant. But it is clear, your argument simply begs the question.
January 23, 2010, 6:07 pmDavid Nieporent says:
No, that is your claim, restated. I’m asking for your basis for it.
It might not be different, but your premise is not correct. A state cannot simply create a new park where all public rallies and demonstrations are forbidden. That would indeed be content-neutral, but content-neutrality is merely necessary, not sufficient, to uphold a ban on speech. A ban on rallies would be a “time, place and manner” restriction (specifically, “place”), which must be reasonable, narrowly-tailored to serve a significant government interest, and must leave open ample alternatives.
An example I could think of which would pass muster: a small park specifically set aside as a playground for children, perhaps with swings, slides, seesaws, etc., if the government had a credible argument that rallies would prevent it from being used for this purpose. (But the argument would have to be credible; for instance, if only a small part of the park is used as a playground, the government can’t justify a ban on rallies throughout the park. Or if the park is used as a playground only during the day, then a ban on nighttime rallies couldn’t be justified on that basis. The restriction must be narrowly-tailored, so in such a situation, a ban on daytime rallies would be all that was justified. (There may be some other justification for a ban on nighttime rallies, but not that one.))
No, they don’t rely on the 14th amendment at all (except for the purpose of incorporating the 1st amendment against the states.) They’re based on the 1st amendment, which is what bans content-based restrictions. (The case you link to, Perry Education Association, also had a separate 14th amendment claim because the government allowed one class of speaker to use the mail system but not another class, not because of content-based restrictions. And that claim failed.)
I don’t know why you have such a cramped view of the 1st amendment, but it doesn’t match the one our courts have. The presumption is that any restriction on speech is unconstitutional, and the state must justify it. The fact that the state created the forum is not in itself a justification, nor is the fact that the state announced the restriction at the moment of creation. Some restrictions are inherent in the nature of the forum; one cannot hold a rally inside a courtroom. But there’s nothing inherent in a park (or a corporation) which justifies limiting speech, and the government can’t make it inherent just by saying, “this park (or corporation) isn’t for speech.”
January 23, 2010, 6:44 pmOren says:
Even content-neutral TPM restrictions must meet intermediate scrutiny (see, e.g. Ward) — they must further an important government interest in a manner substantially related to that interest.
I can’t even see a colorable argument about asserting a valid government interest in restricting a corporation from spending a certain percentage of its revenue on advertising (let alone an important government interest).
Yes.
(1) The State has an important interest in preserving the natural environment of this park.
(2) The restrictions here are substantially related to the interest in (1) — to wit, rallies cause damage to the park.
It’s not. In both cases, the restrictions must pass intermediate scrutiny.
Indeed. Now you just need to get past strict scrutiny. You must show that there is a
January 23, 2010, 9:52 pm(1) A compelling government interest in prohibiting the dissemination of these political views
(2) The regulation is narrowly tailored to that interest (i.e. it is neither overly broad nor under-inclusive).
(3) This is the least restrictive means of addressing the interest.
Oren says:
Hmm, should have read more closely, you already cited the right standard:
What compelling State interest could there be in prohibiting political speech? What interest is there at all, in fact? I mean, if you really believe that BiCRA passes strict scrutiny, then we’ll just have to disagree.
January 23, 2010, 9:55 pmjukeboxgrad says:
nieporent:
Wrong. Various important 1A cases make reference to 14A, not 1A, as the basis for banning content-based restrictions. Example:
(Emphasis added.) This case (and its many supporting citations) repeatedly use 14A, not 1A, as the basis for opposing content-based restrictions. The text I just cited is not using 14A “for the purpose of incorporating the 1st amendment against the states.” This opinion cites the Incorporation Clause this many times: zero. This opinion is not making use of 14A’s Incorporation Clause. It is making use of 14A’s Equal Protection Clause. It is using 14A’s Equal Protection Clause for the purpose of asserting that the state is prohibited from making certain kinds of content-based restrictions.
Here is another example:
One more time: the problem (at least according to these cases) with “differential treatment” (i.e., content-based restrictions) is not that it violates 1A. It’s that it violates 14A. And “differential treatment” is indeed permissible if 14A is not violated, and/or if an “appropriate governmental interest” is being furthered.
So your claim (“they don’t rely on the 14th amendment at all (except for the purpose of incorporating the 1st amendment against the states)”) is utterly false.
And I understand how a statute that “exempts from its prohibition peaceful picketing of a place of employment involved in a labor dispute” is a violation of 14A. But I don’t understand how a ban on political advertising by corporations violates 14A. These two things are not the same.
===========
oren:
No one has an interest in “prohibiting political speech.” There is an interest in prohibiting political speech by corporations. There are a variety of reasons why this is a “compelling State interest.” Here’s one: it is now extraordinarily easy for foreign individuals and governments to influence US elections, while hiding behind a veil of multiple layers of corporate ownership.
How ironic: the same crowd that has a fit when reference is made to foreign law is nevertheless amenable to a system where foreign money gets to buy US lawmakers.
As was nicely described here:
January 24, 2010, 9:42 amKD says:
What about govt? Is government a collection of people and can it have free speech? Can I, as a govt official, spend govt money to promote myself?
January 24, 2010, 11:40 amOren says:
(1) Prohibiting political speech by corporations is most assuredly “prohibiting political speech”.
(2) As to the foreign individuals/corporations, I see no reason that they should not be allowed to express themselves. If a foreigner writes an op-ed in the Economist or Le Monde and an American is persuaded to vote differently, what possible harm has come?
An interesting insult against the American people, but one I don’t have the energy to argue against. If political ads buy votes it’s because citizens chose to vote for the guy with the ad.
Yes, democracy is frightening. It might be particularly frightening when you believe that your fellow citizens are so fickle as to follow anyone with the cash to buy a 60 second TV spot or a full-page ad in the newspaper.
The proper solution, alas, is not to ban the ads but to have more faith in your fellow citizen.
January 24, 2010, 11:48 amOren says:
By the way JBG, care to look at the campaign finance laws of Australia (which are basically non-existent) and tell me how democracy is imperiled there?
January 24, 2010, 12:08 pmjukeboxgrad says:
You said this: “What compelling State interest could there be in prohibiting political speech?” That formulation makes it sound like someone is contemplating a prohibition on all political speech, not just political speech by corporations.
There is no problem with them expressing themselves as long as the viewer/reader knows who is behind the expression. If I read a column somewhere, I can see who signed the column. On the other hand, if millions of viewers see a commercial issued by a front group, it’s going to be essentially impossible for the viewers to find out that the ultimate source of funding, laundered through multiple layers of corporate ownership, was the People’s Bank of China, or the Saudi royal family. And the real issue is TV, not print, because the former reaches a vastly larger audience.
This argument was already raised, and I addressed it here. It’s not just a question of understanding how voters behave; it’s a question of understanding how lawmakers behave.
There’s no reason for Saudi and Chinese money to be interested in buying a country like Australia when instead they can buy a country like ours. And our government has been for sale for a long time, but the process was just given a big boost.
January 24, 2010, 6:12 pmMoishe X says:
This is perhaps the weakest legal argument I’ve seen put forth on TVC. Among other things (and fatally, in my view), it ignores 200 years of doctrinal development away from the notion that the corporation is merely an aggregate of shareholders, and the notion that corporations derive their nature and rights from those of their shareholders.
January 24, 2010, 7:35 pmDavid Nieporent says:
Yes; this new argument about “foreign corporations” is puzzling.
1) While I don’t feel like going back and re-reading all the briefs, I don’t recall the government advancing this argument as a justification. It sounds like a desperate post hoc attempt to dredge up some boogeyman.
2) The first amendment does not on its face make any distinctions between Americans and foreigners.
3) There are no other restrictions on foreigners’ speech; Mikhail Gorbachev can write an op/ed; Citgo can take out full-page ads in the paper. The Saudi government can fund academic departments and think tanks related to the middle east which can put forth all sorts of propaganda, even hiring all sorts of former US ambassadors as their front people to give them credibility. Hell, foreign companies and governments can hire lobbyists to lobby the government directly.
4) Even if the government had a compelling interest in preventing foreign corporations (*) from speaking, such an argument would fit in the dictionary as a picture to illustrate the concept of “not narrowly tailored.” Banning speech by millions of Americans just to prevent foreign corporations from speaking?
(*) And what, exactly is a “foreign corporation,” anyway? One incorporated in a foreign country? One whose CEO isn’t a citizen? One a majority of whose shareholders are foreigners?
5) As you say, what’s so scary about a foreign corporation taking out a radio spot?
January 25, 2010, 12:41 amDavid Nieporent says:
Wrong. It’s true that you found a couple of cases that refer to the 14A, because they come from a line of cases where the court treated the restrictions as a restriction on a class of speaker, not just a type of content. But it’s incorrect to say “14A, not 1A.” The cases you cite do, in fact, cite the first amendment as well. I don’t know where you get the idea that content-based censorship is not a violation of the first amendment.
January 25, 2010, 1:15 amOren says:
The formulation was made to sound like someone is contemplating a prohibition on any political speech.
The protection of (all) political speech is a core value of this Republic. That is a statement far strong than the weaker one, asserting that there is no compelling State interesting in prohibiting (any) political speech.
On this point we agree. Moreover, the ruling left untouched (minus CT’s dissent) BiCRA’s disclosure requirement. So not only do we agree, our agreed-upon position is actually the law of the land. If there is any way you find the disclosure law to be insufficient or unpalatable, I would gladly support strengthening it.
And if the voter’s did not approve of lawmakers that took large amounts of (insert nefarious entity)’s money, they would vote the suckers out.
If lawmakers behave poorly, we have only ourselves to blame for electing poor lawmakers.
January 25, 2010, 1:45 amjukeboxgrad says:
nieporent:
I never said they didn’t. As you have done so many times in the past (example), you are pretending that you said something other than what you actually said. You said this:
Meanwhile, you have shown this many 1A cases which rely on 14A only “for the purpose of incorporating the 1st amendment against the states:” zero. Meanwhile, I have demonstrated that important 1A cases do indeed “rely on the 14th amendment,” and not at all “for the purpose of incorporating the 1st amendment against the states.” Yet again (another example), you invent a sweeping claim and end up spinning like a top when it’s promptly shown that your claim is false.
============================
oren:
That’s good, but it doesn’t mean much. Now that the door is open to unlimited corporate advertising, any disclosure requirements can be easily defeated via multiple levels of corporate ownership. There were lots of holes before, but now the holes just got much bigger.
And replace them with another batch who are cut from the same cloth, because that’s what the system encourages. Which means we get the illusion of change, even though not much really changes.
Indeed. Just like we have only ourselves to blame for electing officials who picked a court that has opened the door to more corruption. The nature of this dynamic is that it’s self-perpetuating, and it embodies a natural tendency to accelerate.
January 25, 2010, 2:00 amzuch says:
Why do you say this? All I said is that traditional “public forum” analysis doesn’t apply. That doesn’t mean that government can’t regulate private speech. It can and it does (see, e.g. drug advertisements).
Cheers,
January 25, 2010, 2:02 amzuch says:
This is fact-specific, of course. So blanket statements are not wise. As I said, the gummint can and has limited advertising by corporations: For instances, drug ads.
Cheers,
January 25, 2010, 2:09 amDavid Nieporent says:
Yes, you did. In fact, I quoted you directly in the very comment you’re responding to. You said “Various important 1A cases make reference to 14A, not 1A, as the basis for banning content-based restrictions.” Emphasis added. But this is wrong. They do make reference to the first amendment.
All of which fits your usual m.o. of engaging in meta-attacks to avoid having to confront the fact that you fundamentally misunderstand the law — so much so that you didn’t even realize that the equal protection clause prevented government discrimination! The first amendment prevents content-based restrictions on speech, except in certain narrow circumstances; a few cases (I don’t know how you decided those were the “important” ones, but I don’t feel like getting into that digression) also cite the fourteenth amendment as a basis for the ban on content-based restrictions.
If you want to crow about the fact that I said “at all” when I should have said “generally,” (*) fine. Crow about that. While acknowledging that you don’t know the first thing about the first amendment, since you don’t even understand how a ban on corporate speech about politics is content-based, and you think that the government can just declare that people can’t hold rallies in parks.
(*) The majority of free speech cases do not rely in any way on the fourteenth amendment.
January 25, 2010, 2:19 amjukeboxgrad says:
nieporent:
Your sophistry is spectacular, as always. Yes, the 1A cases I cited “do make reference to the first amendment.” Duh. However, they do not make reference to the first amendment “as the basis for banning content-based restrictions.” Rather, they make reference to 14A’s Equal Protection Clause “as the basis for banning content-based restrictions.” I demonstrated this here.
Meanwhile, you said this:
I demonstrated that they do “rely on the 14th amendment,” and pointedly not “for the purpose of incorporating the 1st amendment against the states.” So why did you make that false claim?
One of several important differences between you and me is that when I make a careless mistake I take responsibility for it. When you make a careless mistake you pretend that you said something other than what you actually said.
I’m glad that you think that. Hopefully soon you will get around to explaining the various cases which refer to 14A’s Equal Protection Cause as the reason for rejecting “content-based restrictions on speech.” If it was true that “the first amendment prevents content-based restrictions on speech,” all by itself, then there would be no reason for these cases to make reference to 14A’s Equal Protection Clause.
Since you understand this is true, you should explain why you made a statement contrary to this (“they don’t rely on the 14th amendment at all”).
Your backpedaling isn’t worth much, because you’ve shown no evidence that even “generally” is true.
No one is concerned with “the majority of free speech cases.” What is relevant here are the cases that deal with content-based restrictions. Those cases refer to 14A. And they refer to the Equal Protection Clause, not the Incorporation Clause. You tried to deny this, and you seem to be still trying to deny this.
January 25, 2010, 3:04 amDavid Nieporent says:
That was not a “careless mistake.” It was the equivalent of saying that World War 2 was fought between the 2 Worlds of Earth and mars — something that showed a complete lack of understanding of the topic.
What you fail to understand about the cases you’ve pattern-matched is that even though Carey was decided as an equal protection case, it came out as it did only because it was a first amendment issue. Otherwise, it would be only subject to rational basis analysis; because it dealt with speech, it was subject to strict scrutiny (although this was the bad old days of the 1970s, when the justices were far less careful about spelling out their standards explicitly.)
I am indeed still trying to deny this, because it is wrong. A few cases rely on the equal protection clause — I acknowledged that several comments ago. Most do not. Most cases involving content-based restrictions rely only on the first amendment, not the equal protection clause.
(Of course, even a speech restriction valid under the first amendment may be invalid under the equal protection clause if discriminatorily enforced, but that’s true of all laws, from traffic laws to tax laws.)
Why don’t you do a little more research on that. Or do you want a primer on every first amendment case, so you can tally up the ones that do rely on the fourteenth amendment? Because obviously my citing a few cases for you — U.S. v. Playboy, Ysura v. Pocatello Education Association, Davenport v. Washington Education Assn., RAV v. St. Paul (*) — will hardly prove to you what’s generally the case, will it?
(But you think you’d have been clued in from the fact that Citizens United never once mentioned the fourteenth amendment. Not once in the 190 pages of the opinions/headnotes. Not once by Kennedy in his opinion saying that BCRA violates the 14th. And not once by Stevens in his 90 page dissent — not a single sentence even noting that BCRA doesn’t violate the 14th, let alone analyzing the law as an equal protection case.)
(*) A case you admit you’d never read, despite its significance in first amendment law. In any case, see in particular footnote 4 of RAV v. St. Paul, which directly addresses the issue here which you fail to understand. It points out that the court has “occasionally” applied the equal protection clause, but explains that the first amendment is the underlying issue.
January 25, 2010, 4:03 amjukeboxgrad says:
In that footnote, Scalia is doing exactly what you’re doing: unfairly understating the importance of 14A’s Equal Protection Clause with regard to banning content-based restrictions. Scalia’s footnote says this:
Trouble is, when you actually look at Chicago v. Mosley, you see that it relies on the Equal Protection Clause extensively. The last two sentences of the opinion are these:
The key point here is made in Chicago v. Mosley in a passage I already cited:
That is, the 14A considerations are “closely intertwined” with the 1A considerations. So while there are indeed 1A cases (like Citizens United) which ban a content-based restriction without making reference to the Equal Protection Clause, there are many other cases which do indeed refer to the Equal Protection Clause for that purpose. So it’s nice that you’ve admitted that your original claim (“they don’t rely on the 14th amendment at all”) is wrong, but you still haven’t proven your new claim (that they don’t rely on 14A “generally”). There are some that do and some that don’t.
January 25, 2010, 11:36 amJ. Creighton says:
A corporation represents the total number of people working or involved within its legal and physical limits. The corporation itself has no right to ‘speak’ for the people under its wing unless all humans took a vote and all voted to ‘say’ what the corporation will ‘say’; and that is impossible. People have different opinions. To say that a corporation has a right to ‘vote’ with its money should be outlawed. It is only a piece of paper.
January 27, 2010, 12:30 pmOren says:
This is fanciful, to say the least. They don’t “all” need to vote, just the majority in compliance with the corporate charter and the relevant State law.
Moreover, they don’t all need to “vote” if they have delegated their authority to the management to make these decisions on their behalf. That’s the point of hiring a manager — that you pay the guy big bucks to exercise your authority on your behalf.
January 27, 2010, 4:42 pmLampie The Clown says:
I agree, and with respect to libel, I don’t see that as much of a deterrent to any large corporation. They are amoral by design, and mandated by law to put self interest and profit above all else. Add limited liability, and the social equivalent is a sociopath. It is not uncommon for corporations to break the same law over and over, after determining that the fines cost less than compliance.
Details aside, I don’t see anything good coming from giving a billionare sociopath with no morals, unrestricted political speech.
Most corporate donations are divided equally between the two parties, and there is the answer to why. Back the wrong horse and you could loose your stockholders money. Back em both, and you get access to government every time. Risk management at it’s finest.
February 6, 2010, 5:16 am