Justice Stevens’ dissent in Citizens United argues that corporations should have sharply reduced First Amendment rights, at least when it comes to speech about political candidates. The obvious response, which the majority makes at length, is that this would leave the government free to impose similar restraints on newspapers, magazines, broadcasters, and others, since nearly all of them are organized as corporations as well. (Congress has so far exempted most media corporations from these restrictions; but the argument that corporations have reduced First Amendment rights would suggest that these exemptions are just a matter of legislative grace, and that Congress could restrict media corporations if it wanted.)
Not so, argues the dissent (echoing the views of many commentators who support restrictions on corporate speech). “The press plays a unique role not only in the text, history, and structure of the First Amendment but also in facilitating public discourse” (p. 85). “The text and history [of the First Amendment] highlighted by our colleagues suggests why one type of corporation, those that are part of the press, might be able to claim special First Amendment status, and therefore why some kinds of ‘identity’-based distinctions might be permissible after all.” (P. 40 n.57.) More broadly, I’ve heard commentators argue, media corporations have nothing to fear from court decisions that treat the First Amendment as less protective of the rights of corporations, since media corporations have special protection under the Free Press Clause.
Yet why would that be so? If the Free Speech Clause doesn’t cover corporations (or doesn’t cover them as strongly), why should the Free Press Clause be read as strongly protecting corporations? Say the dissent is right that “there is not a scintilla of evidence to support the notion that anyone believed [the First Amendment] would preclude regulatory distinctions based on the corporate form” (pp. 34–35), and that this is relevant today (something I’m skeptical about, since there’s also no evidence to the contrary, and since the lack of any evidence may suggest that modern business corporations weren’t much contemplated by the Framers). This would simply suggest that the Free Press Clause of the First Amendment would allow restrictions on media corporations just as the Free Speech Clause of the First Amendment would allow restrictions on other corporations.
Nor is it enough to say that “the press” gets special protection under the First Amendment. The question still remains who qualifies as “the press” for full constitutional protection. If the argument is that the speech of corporations doesn’t fully qualify as part of “the freedom of speech,” because it comes from corporations, why should the use of the press by corporations fully qualify as part of “the freedom ... of the press”?
But beyond this, Justice Stevens simply seems to assume that “the press” refers to an industry — consider Justice Stevens’ reference to “one type of corporation, those that are part of the press” — rather than a technology. Why should we believe that this is so?
After all, the presses in the Framing era were used not just by professional newspaper publishers. They were used by book authors, by pamphleteers, and by leafleters, for whom public commentary was a sideline to their normal lines of business. They were used by politicians who wrote articles for newspapers. I know of no evidence that the “liberty of the press” was seen as excluding those speakers, and covering only professional newspapermen.
And I know of some evidence to the contrary.
David Hume’s Of the Liberty of the Press (1742), for instance, discussed “the liberty of the press, by which all the learning, wit, and genius of the nation may be employed on the side of freedom and everyone be animated to its defense.” Did he really mean to limit this to the liberty of professional newspaper publishers, and to exclude book authors and others who contributed much “learning, wit, and genius” without being professional publishers? I doubt it, and later he speaks of “book[s] or pamphlet[s]” as being covered.
Likewise, the Continental Congress’s Letter to the Inhabitants of Quebec discusses “[t]he importance” of “the freedom of the press” as “consists[ing] besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.” Advancement of science, morality, and the arts, I assume, was not seen as the domain of the professional press; at the time, this was generally done through books, many of which were published by people (for instance, scientists) who were not “part of the press” as an industry. It seems quite unlikely that “the freedom of the press” was seen by the Continental Congress as limited to the industry labeled as “the press.” The statement is more consistent with seeing the freedom of the press as the freedom of all to use the technology of the press.
Even Blackstone’s position on the freedom of the press, while in many ways quite restrictive, speaks of it as the right of “Every freeman”: Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press.” This fits poorly with the position that the right belongs only to the institutional press.
Early American cases on the freedom of the press are few, but two cases from the 1820s and the 1830s reinforce this. Consider the very first American court decision holding a government action to be an unconstitutional interference with the freedom of the press, Brandreth v. Lance (N.Y. Chanc. Ct. 1839). Lance was a business rival of Brandreth’s, who apparently commissioned one Trust to write an allegedly libelous biography of Brandreth, and then had Hodges (a printer) publish it. Brandreth got an injunction against Lance, Trust, and Hodges; the New York Chancery Court held that the injunction violated the liberty of the press. But nothing in the court’s opinion suggested that the liberty of the press was a right that belonged only to printer Hodges — the injunction was dissolved as to all the defendants.
Likewise, Commonwealth v. Blanding (Mass. 1825), involved a criminal libel prosecution of Blanding, who was not a newspaper publisher; Blanding “delivered the writing set forth in the indictment to the printer of the Providence Gazette, ... and ... it was published in that paper at the request of [Blanding].” (The case doesn’t reveal whether Blanding paid for the placement.) The court rejected Blanding’s freedom of the press argument, but only because it concluded that libels weren’t covered by the freedom of the press, and because the freedom of the press was only a freedom from prior restraint. “The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.” There was no suggestion that the liberty of the press consisted only of the liberty of people “who are part of the press” in the sense of an industry.
[UPDATE:] Similarly, Root v. King, 7 Cow. 613 (N.Y. Sup. 1827), wrote that editors of a newspaper have no “other rights than such as are common to all” under the state constitutional “liberty of the press.”
None of these cases, of course, involved corporations. But they do show that “liberty of the press” was seen as a right to publish to the world at large using the technology of the “press” (including by using others’ presses, whether for pay or because they liked what you wrote), not as a right that belonged to members a particular industry. The institutional media and other people are on par for purposes of “the freedom of speech, or of the press.” The constitutional protections offered to the institutional media are no greater than those offered to others. And thus if ordinary business corporations lack First Amendment rights, so do those business corporations that we call media corporations.
Sebastian H says:
This is precisely right: the clause in question is “or abridging the freedom of speech, or of the press”.
Media corporations want that read as “of the PRESS” meaning some sort of special elite group of people who get special rights.
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January 21, 2010, 5:46 pmRowerinVA says:
Wait a second. In current idiom, “the press” often refers to a group of people, i.e., the mainstream media. But in the original and still valid usage, “the press” also refers to an inanimate object — the printing press machine — and the use thereof. Where is the evidence that “the press” as used in the First Amendment applies only to the former, and not to the latter?
The ordinary meaning of “the press” as used in the First Amendment would seem to be that Congress shall make no law abridging use of a printing press, by anyone. You don’t have to be a member of “the press” (persons) to have your use of “the press” (inanimate object) protected.
Isn’t that correct? Is there scholarship on this point?
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January 21, 2010, 5:47 pmSteve says:
Both sides in this debate are guilty of assuming that a corporation is a corporation. As Justice Rehnquist observed in his Pacific Gas & Electric, dissent, business corporations are simply not the same thing as newspapers (or “media corporations,” if you like,” and insisting on treating them identically “is to confuse metaphor with reality.” As Rehnquist observed, we extend free speech and free press rights to media corporations not because they are people with an interest in self-expression, but because doing so is necessary to further the purpose of the First Amendment. That doesn’t mean we have conceded that corporations are the same as persons for First Amendment purposes.
On the other hand, the fatal flaw in the regulatory scheme that was overturned in Citizens United is that advocacy organizations were treated the exact same way as business corporations, even though they are quite different in the real world. The concerns articulated by Justice Marshall in Austin about the outsized ability of the corporate form to generate wealth remain valid, but they don’t really apply to advocacy organizations. And preventing an advocacy organization from speaking out in a matter of concern looks a lot like a classic First Amendment problem.
The position that all corporations have First Amendment rights is just an argument, not an outcome that is predetermined by the text or intent of the Constitution. One could equally hold that corporations are not guaranteed any First Amendment rights, but that we may choose to extend those rights to certain classes of corporations if it will further the purposes of the First Amendment. Just because the courts chose to confer rights on media corporations doesn’t mean we are forced to ski the slippery slope all the way to the bottom.
These distinctions can blur in practice (is GE/NBC a business corporation or a media corporation?) and they will inevitably become even more blurred if the distinctions are held to have legal effect. For example, business corporations might seek to get around a ban on political speech by donating large sums of money to an advocacy organization that is not subject to any ban. But even so, most Americans have no problem distinguishing the New York Times from General Motors and distinguishing General Motors from the NRA. Just because lawyers may have difficulty describing the differences in airtight legal terms doesn’t mean we have to “confuse metaphor with reality” and treat them all as the exact same kind of creature.
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January 21, 2010, 5:53 pmJ. Aldridge says:
James Madison basically described the Freedom of Speech and of the Press not in terms of a federally granted right, but solely as proof the power over speech and the press was not a delegated object of Congress.
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January 21, 2010, 5:55 pmbrentpeterson01 says:
True. But then Madison went ahead and drafted the First Amendment, which described the freedom of speech and press in terms of a federally guaranteed right. If it was clear that the power to regulate speech and the press was not delegated to Congress, then the First Amendment would have been superfluous.
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January 21, 2010, 6:01 pmThe Volokh Conspiracy » Blog Archive » Citizens United and the Mainstream Media says:
[...] Archives « Lessened Corporate First Amendment Rights, and Media Corporations [...]
The Volokh Conspiracy » Blog Archive » People Organized as Corporations are People Too says:
[...] « Here’s a Good Reason to Allow Internet Access on Airplanes Lessened Corporate First Amendment Rights, and Media Corporations [...]
J. Aldridge says:
It was superfluous and why federalists thought it was improper:
P.S. I think Cooley effectively disproved Blackstones view of the Freedom of Speech.
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January 21, 2010, 6:05 pmOSU3L says:
Would the dissent distinguish a major multi-national conglomerate that just happens to own media outlet (GE) from say Newscorp from say Exxon?
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January 21, 2010, 6:11 pmDon Miller says:
The dissent is wrong in this case.
Who is a media corporation and who isn’t is a line that is trick to draw. Is GE a media corporation? It owns 80% of NBC/Universal (soon to be 49%)
Does any corporation that publish information for public consumption become a media company? Does it have to be daily? How about a newsletter? Web site, Facebook?
How do you decide? Is it only companies that make a profit from their media operations? If that is the definition, is the New York Times no longer a media outlet because they haven’t made a profit in years.
The Internet has lowered the barriers to publishing so low that I don’t know how you would define it in a way that any Corporation that wanted to get around it couldn’t qualify.
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January 21, 2010, 6:16 pmChris Travers says:
I am not sure such a line is workable in practice, however.
For example, how do you differentiate between General Electric and IBM?
Moreover, is General Electric a “press” Corporation? After all they control NBC.... Which makes MSNBC a joint venture of GE and Microsoft.....
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January 21, 2010, 6:20 pmChris Travers says:
BTW, you have described the problem. Lawyers have difficulty drawing lines here which are workable. So if we are asking what line is LEGALLY workable regarding first amendment rights, we have to ask if such a line can even exist.
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January 21, 2010, 6:29 pmDilan Esper says:
It’s possible to distinguish between advocacy corporations and profit-making ones. But to do so, you have to (1) make it difficult for a corporation to be both– for instance, shouldn’t Planned Parenthood be able to both perform abortions AND advocate abortion rights, and (2) deprive profit-making corporations of the ability to offer commentary and enrich the marketplace of ideas– I may not think much of an oil company’s view of energy issues, but they nonetheless bring expertise and a point of view and it is perfectly consistent with the modern theory of the First Amendment to let them participate.
So while the lines could be drawn in theory the way Rehnquist proposed, I don’t see why you’d want to.
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January 21, 2010, 7:19 pmShelbyC says:
Why are they different? Why doesn’t a group of people whose purpose is to make money mining coal have the same first amendment rights to advocate for candidates who are friendly to coal mining as a group of, say, single mothers has to advocate for candidates that will advance the interests of single mothers?
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January 21, 2010, 7:41 pmSimon Dodd says:
How much work does it do to rely on Rehnquist’s opinion in Pacific Gas? For one thing, it was a dissent. Nothing wrong with that, per se, but for critics who charge that today’s decision is novel, a radical departure, it’s a strange choice of citation.
Anyway: it could also be pointed out that he joined Austin. But apropos of both, in McConnell, he joined AMK in calling for Austin to be overruled. So didn’t Rehnquist’s view clearly evolve?
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January 21, 2010, 8:14 pmAlan says:
“I know of no evidence that the ‘liberty of the press’ was seen as excluding those speakers, and covering only professional newspapermen....”
A very good point, and very well-made here.
Justice Scalia touched on this, but he tucked it into a footnote. The footnote was persuasive but it should’ve been in the main text. And it should’ve been longer, with more support, because, as you’ve shown, there is more support.
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January 21, 2010, 8:31 pmRikiTiki says:
If corporations are persons entitled to the protections of free speech, are they also entitled to equal protection under the law? I can’t see how that logic would make any sense.
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January 21, 2010, 9:09 pmEugene Volokh says:
RikiTiki: So you do think that corporate newspapers and magazines have no rights, either, right? After all, your argument would apply precisely the same way to them.
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January 21, 2010, 9:40 pmChris Travers says:
they have been entitled to equal protection under the law since the late 19th century.....
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January 21, 2010, 9:43 pmInstapundit » Blog Archive » IRA STOLL: A big victory for free speech. Meanwhile, an interesting passage from Clarence Thomas… says:
[...] Anyway, this is nothing new. We’ve already seen citizens subjected to barrages of political opinion and electioneering from corporations that use their stockholder money to advance political positions held by management without regard to good business judgment. You know, corporations like The New York Times. More on that here. [...]
Bumpjon says:
The First Amendment says:
It seems that the only clause of the First Amendment that is limited to “the people” is the right to peaceably assemble and petition the government. However, freedom of religion,speech, and the press are not so limited. Why would the Founders have written it this way if they didn’t anticipate that some entities other than the people would have freedom of religion, speech, and the press?
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January 21, 2010, 11:43 pmEconRob says:
“most Americans have no problem distinguishing the New York Times from General Motors and distinguishing General Motors from the NRA. Just because lawyers may have difficulty describing the differences in airtight legal terms doesn’t mean we have to “confuse metaphor with reality” and treat them all as the exact same kind of creature.”
But GE has freedom of the press through its NBC ownership. So if a corporation wants to exercise freedom of the press can it buy any media outlet and get the freedom?
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January 21, 2010, 11:44 pmRon says:
Justice Stevens is old and has lost it for some time.
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January 22, 2010, 12:04 amMalvolio says:
I’m curious. Does anyone know of a case where the New York Times’s editorial page came down on the other side from the interests of the New York Times Company (or any similar mismatch in print journalism)?
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January 22, 2010, 12:07 amraoul says:
Let’s be clear: corporations are creatures of the state and thus subject to its control.
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January 22, 2010, 12:39 amBama 1L says:
Well according to one school of thought, it does so reliably every day, because the Times’s liberal editorial bias causes people to stop reading the newspaper, decreasing revenues.
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January 22, 2010, 12:40 amTweets that mention The Volokh Conspiracy » Blog Archive » Lessened Corporate First Amendment Rights and Media Corporations -- Topsy.com says:
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Eugene Volokh says:
raoul: So corporations that publish newspapers are also subject to the state’s control, yes?
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January 22, 2010, 2:03 amQdad says:
It seems simple to me. “Congress shall make no law... abridging the freedom of speech, or of the press”. It doesn’t mention for which individuals or for what types of entities or corporations speech can’t be abridged, it just says Congress shall not do it. So I’m thinking Congress shouldn’t do it. Does it really have to be any more complicated than that? Of course I realize that years of deliberately twisting and perverting the 1st amendment make the politics of returning to reality very hard and very complicated, but I wish our “conservative” congress-persons (see, I can be PC) would just start a drumbeat of simple truths from the Constitution and Bill of Rights. Given a few decades, it might have an effect.
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January 22, 2010, 6:16 amuberVU - social comments says:
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Eric Rasmusen says:
The distinction the Dissent is groping for is between corporations that buy advertising from other people and corporations that use their own employees for ads (e.g., the NYT). That resolves how it would be OK for Microsoft to buy an entire newspaper, but not to just buy one page at a time.
This is a valid distinction, arguably at least, because it protects direct free speech, only restricting the projection of influence through use of money. It’s somewhat like the distinction between contributions to ahve the candidate buy ads and buying ads directly yourself.
Of course, anyone who accepts this distinction must also allow bans on wealthy individuals—or poor individuals, for that matter— buying ads instead of speaking for themselves directly. I don’t know if Stevens would do that.
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January 22, 2010, 8:54 amDoes Congress Have the Power to Censor Movies? « Utah Capitol Dome says:
[...] Eugene Volokh, at UCLA, agrees in this blog post with the majority opinion in Citizens United. “If the Free Speech Clause doesn’t cover [...]
speech fan says:
Adopting a bright-line “media/press corporation” approach, even if it could be done, still leave a whole lot of problems that liberals should not like. Assume that the press right covers the NYT, so that it’s OK to say “no corporate speech rights, period.” Further assume that the TV news is analogous enough to come under press, too.
But, if that is based on a definition of press that includes function as well as identity — i.e., press actors when they are doing press things — that would protect, at most, only the “news” function, and would leave unprotected all the entertaining and informing speech that TV and film corporations, and perhaps even book publishers, provide. Feds don’t like this week’s Office or Simpsons? Well, that’s OK to censor, because that’s not the “reporting” function. Book banning might even be OK, despite the fact that books are printed on presses, if an evil corporation prints the books, if the books are not “newsy” enough.
On the other hand, if you try to avoid that absurdity by covering all speech functions, such that the press identity alone is enough, you get this: if the ticket into being labelled a “press corp” is doing press activity, and if press activity includes non-newsy entertainment, then those producing solely such speech are also entitled to the golden ticket. That is, there can’t be a requirement that NBC must have a nightly news show as a core press function to earn protection for The Office. The Sci-Fi channel gets protection for Battlestar Galactica based on its provision of that show, period (or you’re back to no protection for them).
So anyone who does a speech function becomes a press corp, unless you say instead that it has to somehow be a core function rather than ancillary, but (1) if Citizens United is set up as a corporation to provide speech, they’re home free, and (2) Microsoft can just set up a sub to be its “speaker,” or you’re in the GE/NBC problem.
This problem is exemplified in Public Citizen’s moronic proposal for a constitutional amendment to say corporations have no constitutional rights except press. Unless they fold all of speech doctrine in under the word press, they’ve OK’d open censorship, even unrelated to campaigns.
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January 22, 2010, 10:58 amJohnnyL says:
Hmmmmm. Maybe I’m a product of an inadequate education but I was always under the impression that the 1st ten amendments (“Bill of Rights”) were not federally guaranteed rights but were “constitutionally” protected rights in so much as they were to protect the citizens natural and endowed by our creator rights from encroachment by the Federal Government. I don’t think they meant the federal government to protect us from encroachment by themselves.
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January 22, 2010, 12:33 pmNo Fear of Citizens | The League of Ordinary Gentlemen says:
[...] have meaningfully diminished First Amendment rights. Professor Volokh beautifully and succinctly explains this argument here. So, either corporations have something approaching full First Amendment rights, or the [...]
Acksiom says:
“only restricting the projection of influence through use of money.”
Eric, would you please explain why you believe the State is at all entitled to do such a thing? Because I question the apparent inherent assumption that it is.
If my corporation has billions and I want to spend it on projecting my influence, why should the State be allowed to restrict me?
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January 22, 2010, 4:00 pmPat Cahalan says:
> Why are they different?
Seriously?
> Why doesn’t a group of people whose purpose is
> to make money mining coal have the same first
> amendment rights to advocate for candidates
> who are friendly to coal mining as a group of,
> say, single mothers has to advocate for
> candidates that will advance the interests of
> single mothers?
Because the group of people whose purpose is to make money mining coal have access to a large pile of capital that isn’t theirs to spend on that purpose, thanks to the abstraction layers inherent in our economic system.
If MADD wants to lobby for tougher drunk driving laws, they solicit donations from the public. If I want tougher drunk driving laws and I believe that MADD can help provide them by advocacy, I can give MADD my money and they’re a trusted third party for advancing my agenda of tougher drunk driving laws. A simple reflexive relationship.
If Southern California Edison wants lower emission standards so that they can produce energy more cheaply, they don’t solicit donations from me on that basis. However, it’s a pretty good bet that (thanks again to those abstraction layers) I have money in Southern California Edison, either through my 401K, or 403b, or mutual fund, or managed investment portfolio, or whatever. Even if *I* don’t have money in SCE, it’s likely that the firemen, or police department, or other taxpayer-funded organization has a pension plan or retirement plan invested in one of those abstraction instruments. However, I didn’t give that money to Southern California Edison so that they could lobby for lower emission standards; they have simply chosen “lower emission standards” as a profit maximization strategy. I don’t pay taxes so that the LAPD pension fund can invest in SCE and give SCE funds to choose to invest in lobbying for lower emission standards. Unlike the example of MADD, where the trust relationship is reflexive and the decisions are tightly coupled to those trust relationships, in the case of SCE the trust relationship is associative and the decisions are very, very loosely coupled with those trust relationships.
So if MADD misbehaves, it’s pretty trivial for me to decouple myself from MADD. If SCE misbehaves, it’s extremely difficult, if not impossible, for me to decouple myself from SCE.
In short, there’s a pretty major moral hazard exception scenario in one case that isn’t present in the other. MADD is answerable to those who use it as a lobbying aggregation mechanism. SCE simply is not.
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January 22, 2010, 8:41 pmEric Rasmusen says:
Acksiom says:
“only restricting the projection of influence through use of money.”
Eric, would you please explain why you believe the State is at all entitled to do such a thing? Because I question the apparent inherent assumption that it is.
There are a number of questions here:
1. Should the state do such a thing, as good policy? No, I think. Corporations need to defend themselves against regulation.
2. Does the Constittuion as we have it prohibit such a restriction?
No, I think, contrary to the Supreme Court. Freedom of the press doesn’t mean being able to buy ads.
3. Is it unjust to have such a restriction?
No. This is a matter of what makes our political system work well. There is no inherent good in corporations having the freedom to buy ads.
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January 22, 2010, 11:22 pmAcksiom says:
Um, no; there’s still just one question: why do you believe the State is at all entitled to do such a thing?
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January 23, 2010, 5:17 amBen P. says:
Why is it even necessary to draw the distinction between media and non-media corporations? One *can* posit the notion that no corporation inherently has rights, that the rights are imbued to the individual. Then, you see, a law or lawsuit cannot stop ‘John Doe, Reporter’ from publishing an article, because John Doe, the reporter, *the individual*, has free speech and free press rights. Any law which prohibits or targets a corporation from publishing John Doe does dramatically impact John Doe’s rights.
Citizens United, on the other hand, claims by their very name to be a bunch of citizens, united. So, which citizens? Who is doing the speaking?
I think restricting the notion of corporate rights and making it clear those rights are inherent in the individual writers/speakers/publishers might be a distinction that can be drawn. Probably by someone smarter than me, I suppose. Or maybe I’m just missing some big huge flaw in this?
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January 23, 2010, 10:19 amdarkmonohue says:
Because the state is what allows your corporation to exist in the first place. Corporations are chartered by the state, because the corporate form serves the social good by increasing economic activity, and are granted certain privileges and immunities to that end. If the dog you own bites the neighbor’s kid, you’re liable; if the corporation you (as a shareholder) own borrows money it can’t pay back, you can’t be made to pay the balance (that’s what limited liability means). People exist before the state, and have rights that the state can’t take away. Corporations are created by the state; they are able to acquire their billions precisely because of the legal protections the state affords them. If the state creates something, surely it can place some restrictions upon it?
By the way, no such thing as the modern (limited liability) corporation existed at the time of the Founding Fathers, who surely would have recoiled in horror at the idea that it was acceptable for people to shirk their debts or avoid lawsuits simply by cobbling up some legal fiction to stand in their place.
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January 23, 2010, 10:30 amNeil B says:
Well, you’ve got a point. But many complainers about CU v. FEC rightly make the point that corporations are chartered with purposes in mind. When I invest in Ford (actual case), I have an expectation of them selling cars as their business. I will grant them the right to defend or explain themselves to government entities, even complain about rules, taxes etc. that affect them etc. but I did not invest for them to represent political views. However, a “media corporation” is representing itself as being in the commentary business. I know that’s what they’re going to do.
There’s a difference. I wish defenders of CU v. FEC would use less sloppy thinking and make finer distinctions instead; to me that is a common flaw of libertarian argument.
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January 23, 2010, 12:12 pmJean Powers says:
So who do you think will be the first candidate to represent China will be?
Ideas?
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January 23, 2010, 2:47 pmJean Powers says:
So who do you think will be the first candidate to represent China will be?
Ideas?
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January 23, 2010, 2:47 pmOf snow and Supreme Court rulings - E.D. Kain - American Times - True/Slant says:
[...] Eugene Volokh here and here discussing the court [...]
Acksiom says:
“Because the state is what allows your corporation to exist in the first place.”
Except that our consent is what allows the State to exist ITFP, and likewise controls what it is allowed to do. The State is no less a nominalization than a corporation is, and possesses no extra authority or permission to regulate than normal merely for its prior existence.
“Corporations are chartered by the state, because the corporate form serves the social good by increasing economic activity,”
No; they’re chartered because Citizens require the State to allow them to be chartered. Citizens do not need to establish the “social good” of any activity in order to engage in it, including the chartering of corporations; the default position is that the Citizenry are empowered and entitled to do whatever they wish. It is the agents of the State who are by-default limited in their allowable official actions.
“and are granted certain privileges and immunities to that end.”
No; they’re granted certain privileges and immunities to the end of Citizens’ desire for them to have such things. Citizens don’t need the State’s permission to do things; it is the State which needs the Citizens’ permission to do things.
“People exist before the state, and have rights that the state can’t take away.”
Essentially correct, if poorly phrased.
“Corporations are created by the state;”
No; corporations are created by Citizens.
“they are able to acquire their billions precisely because of the legal protections the state affords them.”
Which it does because Citizens instruct it to do so.
“If the state creates something, surely it can place some restrictions upon it?”
No, it’s not sure at all; nor is it relevant, because, again, the State does not create corporations. Citizens create them, and require the State to regulate them. The apparent assumption that the State is just, somehow, magically! authorized to limit corporations’ actions in ways that it is not authorized to limit those of Citizens, simply because corporations are nominalizations rather than discrete individuals, remains baseless and unsupported.
“By the way, no such thing as the modern (limited liability) corporation existed at the time of the Founding Fathers, who surely would have recoiled in horror at the idea that it was acceptable for people to shirk their debts or avoid lawsuits simply by cobbling up some legal fiction to stand in.”
[shrug] So?
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January 23, 2010, 11:55 pmdlp says:
Acksiom,
That is circular and thus irrelevant.
If the state created corporations because Citizens instructs it to do so, then surely there is nothing stopping the same citizens from placing limits on those corporations through the state, and as such we are back at the point made by darkmonohue.
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January 24, 2010, 4:21 amNeil B says:
dlp, good points. Aksiom is confusing the consent of the specific group that forms the corporation with the consent of “the society” that recognized the corporation as a separate entity (above the members, for purposes of limited liability etc — all privileges, not inherent rights, and thus subject to conditions and quids pro quo.) This is a common mistake, likely an innocent misunderstanding from such as dlp but deliberately dispensed and manipulated by backers of corporate power. Look to see more of that talking point.
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January 24, 2010, 11:04 amAcksiom says:
“That is circular and thus irrelevant.”
Except, of course, for how it isn’t, in that you’re trying to assign ownership and control to the wrong entities and sequence actions out of their proper consequential order, and thus my reasoning is neither circular nor irrelevant because of how it corrects those errors on your parts.
“If the state created corporations because Citizens instructs it to do so,”
Except, of course, that it didn’t; yet again, the State doesn’t create corporations; Citizens do. Because yes, it does matter how one phrases it.
“then surely there is nothing stopping the same citizens from placing limits on those corporations through the state,”
Except, of course, for how there are things stopping that; to begin with, the already-existing limits on the power of the State to do so. Because yes, it does matter what sequence and order are applied.
“and as such we are back at the point made by darkmonohue.”
Except, again, for how you’re trying to assign ownership and control to the wrong entities and sequence actions out of their proper consequential order, and thus we are instead back at my original questions: if my corporation has billions and I want to spend it on projecting my influence, why should the State be allowed to restrict me? Why do you believe the State is at all entitled to do such a thing?
“Aksiom [sic] is confusing the consent of the specific group that forms the corporation with the consent of “the society” that recognized the corporation as a separate entity”
Except, of course, for how I’m not.
“(above the members, for purposes of limited liability etc — all privileges, not inherent rights, and thus subject to conditions and quids pro quo.)”
Except, of course, for how freedom of speech is not a privilege. It is an inherent pre-existing right, and it is the abnormal extension of the State’s power to regulate and control that which by-default needs justification first.
And so far, no one has provided any kind of rational pretext whatsoever for doing that. “Corporations aren’t people” doesn’t just somehow, magically! authorize the State to exceed the already-existing strict and severe limits on its powers to regulate and control speech.
“This is a common mistake, likely an innocent misunderstanding from such as dlp but deliberately dispensed and manipulated by backers of corporate power.”
Cites or you can’t haz konspeeruhsi theori.
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January 24, 2010, 10:08 pmAcksiom says:
And for those who don’t understand why ownership, control, sequence, and order matter, it’s because if anything appears as though it’s being confused here, it’s the meaning of “creates” in the properly applicable sense of property that one owns and therefore is entitled and empowered to control, as a consequence of having created it, and the meaning of “creates” in the sloppily inapplicable sense of “legalizes”.
Just because the State legalizes the existence of corporations doesn’t mean it owns them in the first sense, and can therefore exceed the already-existing strict and severe limitations on its powers. It doesn’t matter whether it’s a corporation or an individual being subjected to force or the threat of force by the agents of the State; the State’s power to do so is strictly and severely limited regardless, ITFP.
But if one says “creates” instead of “legalizes”, people are inclined to follow the cultural default chain of reasoning of ‘creates’ ==> ‘owns’ ==> ‘controls’ and are thus persuaded to incorrectly conclude that the State is automatically authorized to exceed the already-existing strict and severe limations on its power, and ‘control’ the freedom of speech of corporations.
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January 24, 2010, 10:43 pmNeil B says:
Acksiom, still confused after all those careful explanations? The corporation as a separate “entity” is indeed created by the state (citizens “organ” as a whole), even if granted upon request. About Citizens require the State to allow them to be chartered — OK, then they can require the State to put conditions on granting the charters, the powers they have, etc. It is a separate entity: each of the members can act as an individual, without appropriating funds or the legal umbrella of “the company” itself. If any of them want to buy political advertising, that’s what they should do on their own instead of hijacking the company with its limited rights.
BTW Neither the State or private property is a “given” without a process of asking and getting mutual approval (or then I could say I wanted my property lines to be wherever I wanted, so could others — who draws the boundaries? Same problem as for governments anyway.)
As for the government not exceeding the “strict limitations” — well, the limitations come from the citizens as much as the powers do.
Don’t anyone here forget either that it isn’t just about the government! The people who invested in the corporation had an understanding what their money would be spent for (IOW, not for “advocacy” in a case of a non-media corp, something it is shocking the OP didn’t get the distinction.) Hence they can take action against the company on their own. I am hoping for an ultra vires suit against a commerce-chartered company that does political advocacy.
Finally, if you think that any sort of contrived slant in people’s thinking and their ever being manipulated is a “conspiracy theory” needing proof, you are just showing naiveté.
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January 25, 2010, 7:37 amJon says:
1) As a Ford shareholder you rightfully state that you expect them to sell cars, explain themselves to the gov’t, etc. I’m going to make a large assumption, but I’m going to assume you invested in Ford for your own financial gain which could be tied to Ford’s financial success. Ford’s actions to maximize it’s profits may include political activities like backing candidates or legislation that will ultimately benefit their bottom line. That being the case, you should expect Ford to represent, on some level, a political viewpoint that is beneficial to the corporation and ultimately yourself in the form of dividends and a higher stock price.
2) As far as finer distinctions go, thats my major problem with distinguishing between media corporations and other corporations. Barring differences in how a company chooses to organize itself internally, a C-Corp is a C-Corp is a C-Corp (same with an s-corp, llc, etc. etc.). So a newspaper organizes itself as a C-Corp the same way a major auto manufacturer might, how does one make a legal distinction between the two? And if one somehow manages to create a legal construct that does recognize the difference, what stops a company from “purchasing” that right? It’s already been mentioned as an example, but GE owns/owned (did they sell it to Comcast?) NBC-Universal, does that mean GE has more of a right to exercise its free speech because it owns NBC than, say, R.H. Donnelly, Inc.? Can GE represent itself as a “media corporation” and avoid limitations on campaign donations?
It isn’t that libertarians (or whoever is defending this case) aren’t willing to recognize the distinction, it just seems very difficult to define that difference in an equitable manner.
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January 25, 2010, 11:57 pmThe Volokh Conspiracy » Blog Archive » First Amendment Rights vs. Rights to Vote / Be a Candidate says:
[...] Press Clause, while the others are only protected by the Free Speech Clause. For reasons I’ve given before, that’s not historically sound: The historical evidence suggests that “press” in the Free [...]
Corpus Juris Vol. VI » First Thoughts | A First Things Blog says:
[...] Professor Eugene Volokh’s “Money and Speech,” “Citizens United and the Mainstream Media,” and “Lessened Corporate First Amendment Rights and Media Corporations.” [...]
State Attorneys General Argue that Non-Media Speakers Should Get Less First Amendment Protection than Media Speakers | theConstitutional.org says:
[...] meaning of the Free Press Clause does offer special protection to the press as an institution, see here. I argue there that the Free Press Clause protects the press as a medium of mass communication, to [...]