Agreed. But I don’t see why a cap on political spending should be considered content-based. For sure, it is political and not, say, commercial, but it does not distinguish based on what is being said, it does not favour criticism or praise, republican or democratic, or even between slander or detailed argument.

That is content-based (but viewpoint-neutral). For it to be content-based, it has to be defined without reference to the content of the speech — it must treat speech about toothpaste to be identical to speech about candidates.

A law that said that newspapers who publish a daily official release from the Federal government are exempt from Federal income taxes doesn’t “force” any outlet to publish any speech whatsoever either, does it?

Nope. Nor do I believe it qualifies as an unconstitutional condition.

If the government prohibits particular companies from advertising, that doesn’t “force” consumers to buy their competitor’s products, does it?

No, they can go without the product in question. Such a law would be illegal for other reasons, of course (equal protection, freedom of commercial speech, rational-basis …)

If the government prohibits people who sell vitamins from truthfully mentioning the results of studies that show their health benefits, that doesn’t “prohibit” anyone from buying them, does it?

No, and since commercial speech is less protected than political, it har

And my answer to all of these things is — *yes*. If you use force and it has the obvious and intended effect of causing X, then you forced X. If it prevents Y, which would have otherwise occurred, then it prohibited Y.

Well, if you want to use the English language to communicate with other English language speakers, you should use words that we are likely to associate with the meaning that you intend. I did not understand what you were talking about and only now do I realize that you use the word ‘force’ to mean (variously) ‘induce’, ‘make-more-likely’, ‘dissuade’ and so forth.

What possible purpose would BiCRA have it had no effect on who said what in which forum?! Whatever effect it has, it forces.

Of course. It forces certain people not to speak on certain matters (and this is why I’ve been opposed to it).

What it does not do, however, is force a newspaper or any other media outlet to speak on certain matters.

Sure, there’s a difference in degree between a tax on cigarettes and an outright ban, and BCRA is much closer to the ban side.

Hence the difference between forcing people to quit and inducing them to quit.

David Schwartz: Whatever effect it has, it forces.

Does that go for actions by private parties, too? (That whatever effect I have on others, I force…) Is there really no basis on which to distinguish, say, between a tax on cigarettes and an outright ban?

Oren: While I’m absolutely no fan of BiCRA, it does not force any outlet to publish any speech whatsoever.

A law that said that newspapers who publish a daily official release from the Federal government are exempt from Federal income taxes doesn’t “force” any outlet to publish any speech whatsoever either, does it?

If the government prohibits particular companies from advertising, that doesn’t “force” consumers to buy their competitor’s products, does it?

If the government prohibits people who sell vitamins from truthfully mentioning the results of studies that show their health benefits, that doesn’t “prohibit” anyone from buying them, does it?

And my answer to all of these things is — *yes*. If you use force and it has the obvious and intended effect of causing X, then you forced X. If it prevents Y, which would have otherwise occurred, then it prohibited Y.

What possible purpose would BiCRA have it had no effect on who said what in which forum?! Whatever effect it has, it forces.

Oren: Agreed. Existing precedent on content-based restrictions have always subjected them to strict scrutiny and I think it’s nigh-impossible to come up with a compelling government interest in restricting (any) political speech.

Agreed. But I don’t see why a cap on political spending should be considered content-based. For sure, it is political and not, say, commercial, but it does not distinguish based on what is being said, it does not favour criticism or praise, republican or democratic, or even between slander or detailed argument.

Oren: This is only true insofar as the price premium charged by the exclusive-retailer is comparable to the average consumer’s utility-gap from the “bad product”. 
That is, even if the exclusive-retailers product is objectively better in some fashion, it might not be better enough to justify the difference in price.

Thanks for the support on that one. I’m pretty sure I have tried to make that point at least three times now.

Access for bad products to sub markets *should* be worse than access for good products and attempts to “level the playing field” actually cripple the market.

This is only true insofar as the price premium charged by the exclusive-retailer is comparable to the average consumer’s utility-gap from the “bad product”.

That is, even if the exclusive-retailers product is objectively better in some fashion, it might not be better enough to justify the difference in price.

A law that required your local supermarket to carry any product with whatever label the supplier wanted to put on it and prohibiting them from warning consumers away from crap would cripple the supermarket’s ability to command higher prices by abating consumer fears about product unsuitability. BCRA does this with speech, with similarly disastrous effects.

While I’m absolutely no fan of BiCRA, it does not force any outlet to publish any speech whatsoever.

Martinned: I don’t know what this means, but I’m starting to wonder whether you do. What does “competition between open sub markets and closed sub markets” mean, specifically? Real world examples, please.

Sure. Open sub markets generally will carry any product regardless of quality and make no attempt to distinguish them. A good example of an open sub market is “pricewatch.com”, your local mall, or the advertising in your local newspaper. People who shop at an open sub market know that they will find pretty much any product there, but they have to go to the extra effort of ensuring that product is suitable for its intended purpose. They can conclude very little merely from the fact that the product is available in that forum.

Closed sub markets, as part of the service they offer, filter what products are available. This may mean that if you want something more unusual, it’s not available. But the costs of rational ignorance are reduced by the filtration the market itself provides. Your local Walmart is an example of a closed sub market. High-end grocery stores are examples of even more closed sub markets. A product can command an extra price simply by virtue of it being carried by some sub markets, as the risk that the product won’t be suitable is reduced. Risk that you will be unhappy with a product reduces its effective value to you.

In a healthy free market, open and closed sub markets compete and closed sub markets compete with each other. A sub market the reduces risk can command higher prices because part of the hesitation in purchasing is fear that the product won’t perform as claimed.

Laws such as the Sherman act and BCRA utterly fail to understand that a truly open market is also open to closed sub markets. Access for bad products to sub markets *should* be worse than access for good products and attempts to “level the playing field” actually cripple the market.

A law that required your local supermarket to carry any product with whatever label the supplier wanted to put on it and prohibiting them from warning consumers away from crap would cripple the supermarket’s ability to command higher prices by abating consumer fears about product unsuitability. BCRA does this with speech, with similarly disastrous effects.

Well, that’s the problem with a bill of rights that is as short as the American one. As the wingnuts never hesitate to remind us, the first amendment, on its face, does not provide for any justification of any limitation of speech whatsoever. And yet such limitations exist, with the approval of the courts. The only way to sort such things out is to consider the degree to which the proposed measure would be consistent with existing precedent, with what we know of the intentions of the drafters and the political and legal culture of the founding era as well as, quite bluntly, whether such a thing would be a good idea.

Agreed. Existing precedent on content-based restrictions have always subjected them to strict scrutiny and I think it’s nigh-impossible to come up with a compelling government interest in restricting (any) political speech.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Wow, enough loopholes to sail a Carrier through in there. Let’s see how many notable 1A we could overturn with this monstrosity.

(0) New York Times v. United States — in the interest of National Security.
(1) New York Times v. Sullivan — reputation of others
(2) Tinker v. Des Moines — public safety
(3) Brandenburg v. Ohio — reputation/rights of others
(4) Hustler Magazine v. Falwell — reputation of others
(5) Cohen v. California — prevention of disorder
(6) Near v. Minnesota — reputation of others
(7) Texas v. Johnson — interest in Democratic society
(8) Miller v. California — protection of morals
(9) Reno v. ACLU — protection of morals
(10) Stromberg v. California — democratic society
(11) Yates v. United States — democratic society
(12) R. A. V. v. City of St. Paul — protection of the rights of others
(13) Landmark Communications v. Virginia — protection of judicial “integrity” / confidence

No thanks, I think I prefer the version that isn’t swallowed, wholesale, by these exceptions.

“Stare decisis, when we agree; radical activism and overruling of precedent when we don’t.”

“The Constitution is to be interpreted narrowly and in its original context when we agree; we get to make up what it says when we don’t” (right to bear arms, corporate free speech, etc.)

“States rights when we agree; Federal dominance when we don’t” (Bush v. Gore)

“Always vote 100% in the direction of our personal political and religious views”

What hypocrites. How embarrassing.

David Schwartz: It’s not that simple. Free entry is sometimes good and sometimes bad. You need a free market to decide which, to what extent, and when.

OK, that makes absolutely no sense at all. You need a free market to decide when to have a free market? Huh???

David Schwartz: Some free entry is good. If new good products can’t get to market, that’s bad.

What about quite simply more producers of the same product? Competition and all that…

David Schwartz: Some free entry is bad. If new bad products can easily get to market and customers can’t easily distinguish them, that’s bad.

You need competition between open sub markets and closed sub markets to find the optimal level of ease of access. Walmart would not be better if they carried every product with no good way to tell the good from the bad.

I don’t know what this means, but I’m starting to wonder whether you do. What does “competition between open sub markets and closed sub markets” mean, specifically? Real world examples, please.

David Schwartz: A level playing field, with the good and the bad having equal chance, is *not* ideal.

It is if you trust voters, like jurors, to recognise the truth if they see it.

David Schwartz: it is that there is no conceivable way central command can make it better.

I still object to you characterising my arguments as “central command”. Anyway, I’d like to point your attention to the FDA. It may have many flaws, but it is certainly better than having no FDA at all.

David Schwartz: Most central command decisions are based on horribly confused understandings of what a “healthy market” is, in this case, the specific misunderstanding that a healthy market is equally open to both good and bad products and that therefore market gateway keepers are inherently bad.

You’re still talking about those gateway keepers without explaining who you have in mind. MSNBC? Wall-Mart?

In a healthy market good products drive out the bad, or rather each of them gets the price/profit margin it deserves, through informed consumer choices. To improve that, we have labelling laws, various government agencies, truth in advertising laws and a variety of other ways to make sure consumers are more informed.

Of course, consumers have much more of an incentive to get informed than voters, but even they need a little help from lawmakers.

Martinned: So free entry and exit is bad?

It’s not that simple. Free entry is sometimes good and sometimes bad. You need a free market to decide which, to what extent, and when. It cannot be done by central command.

Some free entry is good. If new good products can’t get to market, that’s bad.

Some free entry is bad. If new bad products can easily get to market and customers can’t easily distinguish them, that’s bad.

You need competition between open sub markets and closed sub markets to find the optimal level of ease of access. Walmart would not be better if they carried every product with no good way to tell the good from the bad.

The mistake, behind both the Sherman act and BCRA, is to misunderstand that open access to the market means that nobody stops you, not that somebody holds back everyone else. A level playing field, with the good and the bad having equal chance, is *not* ideal.

The point is not that the free market is good or bad (or operates perfectly or imperfectly), it is that there is no conceivable way central command can make it better. It has no advantage and numerous disadvantages. Most central command decisions are based on horribly confused understandings of what a “healthy market” is, in this case, the specific misunderstanding that a healthy market is equally open to both good and bad products and that therefore market gateway keepers are inherently bad.

Oren: (1) BiCRA would prevent Citizens United (and WI RTL, the ACLU, the NRA …) from spending even a penny promoting or attacking a candidate within 60 days of an election.

Oh, sorry, my bad. Throughout this thread (and others about Citizens United), I’ve argued that the Court got it right given the premise that political spending is protected speech. It’s that premise that the original post discussed. I have no interest in defending these provisions from BCRA as such. Companies and natural persons should have the same rights under the first amendment.

Oren: (2) I see no justification in the First Amendment for limitations on the “volume” of speech (either volume in the sense of loudness or quantity).

Well, that’s the problem with a bill of rights that is as short as the American one. As the wingnuts never hesitate to remind us, the first amendment, on its face, does not provide for any justification of any limitation of speech whatsoever. And yet such limitations exist, with the approval of the courts. The only way to sort such things out is to consider the degree to which the proposed measure would be consistent with existing precedent, with what we know of the intentions of the drafters and the political and legal culture of the founding era as well as, quite bluntly, whether such a thing would be a good idea.

This last point led mr. Schwartz and myself to a discussion of the phenomenon of the marketplace of ideas, a metaphor frequently invoked but – I think – poorly understood. (At least by me.)

P.S. I just quickly checked how this works under ECtHR case law. The relevant articles are article 10:

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

and article 3 of the first protocol:

Article 3 – Right to free elections

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

Limits on campaign spending have generally been upheld under the heading “protection of the rights of others”. Cf. Bowman v. UK (1998), where the national law was actually struck down because it was found to fail the “necessary in a democratic society” criterion (it was found to fail the proportionality requirement):

36. The Government maintained that the spending limit in section 75 of the 1983 Act pursued the aim of protecting the rights of others in three ways. First, it promoted fairness between competing candidates for election by preventing wealthy third parties from campaigning for or against a particular candidate or issuing material which necessitated the devotion of part of a candidate’s election budget, which was limited by law (see paragraph 18 above), to a response. Secondly, the restriction on third-party expenditure helped to ensure that candidates remained independent of the influence of powerful interest groups. Thirdly, it prevented the political debate at election times from being distorted by having the discussion shifted away from matters of general concern to centre on single issues.

(…)

38. The Court finds it clear that the purpose of section 75, particularly taken in the context of the other detailed provisions on election expenditure in the 1983 Act, is to contribute towards securing equality between candidates. It therefore concludes, as did the Commission, that the application of this law to Mrs Bowman pursued the legitimate aim of protecting the rights of others, namely the candidates for election and the electorate in Halifax and, to the extent that the prosecution was intended to have a deterrent effect, elsewhere in the United Kingdom.

If you limit the amount any one person can spend, no one is prevented from telling the truth. They are only limited in how loudly they can tell it, something that is, in abstracto, justified if there is no likely connection between how loudly someone is speaking and the probability that they are speaking the truth.

(1) BiCRA would prevent Citizens United (and WI RTL, the ACLU, the NRA …) from spending even a penny promoting or attacking a candidate within 60 days of an election.

(2) I see no justification in the First Amendment for limitations on the “volume” of speech (either volume in the sense of loudness or quantity).

Oren: As opposed to government fiat preventing people from telling (their version of) the truth?

If you limit the amount any one person can spend, no one is prevented from telling the truth. They are only limited in how loudly they can tell it, something that is, in abstracto, justified if there is no likely connection between how loudly someone is speaking and the probability that they are speaking the truth.

David Schwartz: Right, but the Sherman act creates a looking glass version of free entry and exit. The Sherman act is based on the same misunderstanding of the goods market as the misunderstanding of the idea market the BCRA is based on.

So free entry and exit is bad?

David Schwartz: A free market works because it creates obstacles to bad products.

No, it works because it allows an appropriate price to be negotiated for good and bad products alike.

I don’t remember off the top of my head whether this is true in the US as well, but over here the cheapest supermarkets are the ones where you literally have to get your groceries out of the cardboard boxes they arrived in. The store essentially looks like one big warehouse, and the only store employees are the people behind the cash register. On the other end of the spectrum you have your wholefoods, etc., with a wide range of products of high quality, etc. In the end, you get what you pay for. The reason why that is possible is that the competition laws forbid the giants in the industry from using their market power to prevent entry.

David Schwartz: A free market in ideas works because it creates obstacles to bad ideas.

Example?

David Schwartz: This is done by people acting in their own interest — market gateway keepers lose their gateway role if their customers are unsatisfied.

No. In imperfect markets, incentives are not aligned. (Any market for information suffers from moral hazard, for example. See above for my lawyers example.) In the news/information business, even perfectly aligned incentives would produce entertainment, not news.

David Schwartz: The best ideas will not win if regulation guarantees equal access to both bad ideas and good ideas. It requires information gateway keepers to filter out the bad from the good and keep or lose their role as keepers based on how satisfied their customers are with their gateway keeping.

Yes, that would be great. But where, other than in the imaginary world in your head, is that actually happening? Think about the golden age of newspaper publishing. William Randolph Hearst writing whatever he felt like to help the Democratic cause. He could do that, because his was one of two enormous newspaper conglomerates. These days, the same seems to be happening on US cable news. Newspapers today are forced by competition (i.e. reputation mechanisms, etc.) to be more honest. Free entry and exit in the newspaper business assures some measure of equality between newspaper publishers, which keeps them all (relatively) honest. But I probably don’t need to remind you that that only seems to be working to a limited degree for, say, the New York Times.

David Schwartz: Otherwise we all lose out to rational ignorance, in both goods markets and idea markets.

You do lose out to rational ignorance. In goods & services markets, customers have an incentive to get informed. However, that is not always possible, hence moral hazard, exploding health care costs, etc. In the marketplace of ideas, voters are rationally ignorant, as explained on this blog many times before.

There are no good solutions for that, but moderately good solutions include a republican form of government (i.e. no direct democracy), strictly enforced limits on what those elected politicians may do (i.e. a bill of rights with judicial review and – where appropriate – a system of conferred powers), highly competitive news media (to keep them all honest, i.e. to assure that all truths have the best possible chance of being voiced), a good, government subsidised education system (government intervention justified by the positive externality of having a well educated electorate, amongst others), etc.

David Schwartz: In any event, it’s pretty clear to me that if the Constitution guaranteed any kind of freedom in commerce comparable to the freedom of speech, the Sherman act would be unconstitutional.

That is true. It would also be a bad idea.

Martinned:
Say what now? Depending on the circumstances, “controlled access” may well be a felony under the Sherman Act. Real markets work best with free entry and exit.

Right, but the Sherman act creates a looking glass version of free entry and exit. The Sherman act is based on the same misunderstanding of the goods market as the misunderstanding of the idea market the BCRA is based on.

A free market works because it creates obstacles to bad products. A free market in ideas works because it creates obstacles to bad ideas. This is done by people acting in their own interest — market gateway keepers lose their gateway role if their customers are unsatisfied.

The best ideas will not win if regulation guarantees equal access to both bad ideas and good ideas. It requires information gateway keepers to filter out the bad from the good and keep or lose their role as keepers based on how satisfied their customers are with their gateway keeping.

Otherwise we all lose out to rational ignorance, in both goods markets and idea markets.

In any event, it’s pretty clear to me that if the Constitution guaranteed any kind of freedom in commerce comparable to the freedom of speech, the Sherman act would be unconstitutional.

The problem is political spending, not a system of declaring truth by government fiat.

As opposed to government fiat preventing people from telling (their version of) the truth?

David Schwartz: I don’t agree, but ultimately is doesn’t matter. The Constitution and 1A demand a free market in ideas, if that doesn’t result in the best ideas rising to the top, that’s too bad.

OK, now you’re back to defending the Court’s interpretation of the first amendment by referring to the Court’s interpretation of the first amendment.

David Schwartz: The marketplace for ideas cannot work if the government declares an equality of access for both good and bad ideas.

Ignoring, for the moment, the fact that no one’s arguing for a 100% totalitarian version of the fairness doctrine, the question remains: why not? Isn’t that the point of a jury trial, for example? There are two sides to the story, each party presents their best case, and perfectly ordinary citizens decide what the truth is. Traditionally, civil and criminal litigation only involves two parties, but there’s no fundamental reason why a jury can’t pick from three or more alternatives. If a jury, why not the American public?

David Schwartz: Controlled access is part of how real markets work properly.

Say what now? Depending on the circumstances, “controlled access” may well be a felony under the Sherman Act. Real markets work best with free entry and exit.

David Schwartz: You want Hollywood to make “good” movies, but Hollywood makes entertaining movies. 1A says the government doesn’t get to change the system, even if to make those movies it considers good.

Now you’re begging the question again.

David Schwartz: We need Hollywood precisely because there is no central command way to promote the good.

Who said anything about central command? The problem is political spending, not a system of declaring truth by government fiat. That we reserve for libel suits.

Martinned:
So no, just like Hollywood produces entertaining movies, not good ones, a free marketplace of information would be entertaining, but not reliable. Fox News is the ultimate example: what they do is tell their audience what they want to hear. And they’re good at it, too. Fair & Balanced it is not. Reliable/good/filter even less.

I don’t agree, but ultimately is doesn’t matter. The Constitution and 1A demand a free market in ideas, if that doesn’t result in the best ideas rising to the top, that’s too bad. As I’ve argued, it works best without regulation so that market gateway keepers can filter out the crap. But even if you don’t agree, that mechanic is part of the marketplace for ideas.

The marketplace for ideas cannot work if the government declares an equality of access for both good and bad ideas. Controlled access is part of how real markets work properly.

You want Hollywood to make “good” movies, but Hollywood makes entertaining movies. 1A says the government doesn’t get to change the system, even if to make those movies it considers good.

We need Hollywood precisely because there is no central command way to promote the good.

I could not disagree more strongly. That would be a horribly malfunctioning market. The point of the market is to filter out the crap so that the marketplace is filled with the best. Do you really think that poison labeled “baby food” should be competing on an even playing field with applesauce?

Political opinions are not analogous to babyfood, where there is some objective standard against which they can be judged. The value of a political opinion is instead identical to its acceptance by the populace.

The point is that shareholders are not using corporations to exercise their First Amendment rights as a factual matter. I have my money in money market accounts mangaged by Vanguard. As a result, I’m a shareholder in many publicly traded companies. I don’t even know what those companies are! I’m willing to bet that most people are like me.

Well, there are plenty of corporations whose purpose is to exercise first amendment rights. See, e.g. Wisconsin Right To Life, the ACLU, the NRA, …

Moreover, even in a traditional for-profit corporation (e.g. not an advocacy group that is incorporated as a non-for-profit), you have delegated your right to speak (within the parameters of the charter and the relevant law of incorporation) to the management of the corporation. When they speak, they can do only so because you authorized them too — that is, the management of the corporation has no power but that delegated to them by the owners.

Furthermore, the corporate entity is created by law. Something that is created by law cannot have constitutional rights bestowed to people.

So much for New York Times v. Sullivan and Planned Parenthood v. Casey (both of the plaintiffs there are incorporated, mind you).

David Schwartz: Look at the market for content. You can’t personally tell the quality of a movie until after you’ve bought it. What is the result of this peculiar circumstance? People rely heavily on movie reviews, opinions of friends, and the like. Theaters carefully control the movies they show to ensure they maintain a reputation. Laws to require Hollywood to make any script or movie theaters to show any movie would be obviously disastrous.

This, at long last, is an analogy that makes sense. (I still don’t quite follow the rest of your comment, but never mind.)

The problem is, of course, that Hollywood movies suck. By and large, Hollywood produces drivel, drivel and more drivel, and when they produce something good it gets released “in selected cities”, meaning that nobody gets to see it. If our political discourse (yours or ours here) were as bad as the average Hollywood movie, we’d be in pretty bad shape.

If the government had a sufficiently compelling interest in assuring that good movies get made, as opposed to the entertaining drivel that audiences actually want to see, they could make a law limiting the amount that could be spent on a single movie. That would have a positive effect on the total number of movies made, and presumably on the total number of good movies made, at the expense of making things like Avatar unlawful. (Haven’t seen it yet, so I don’t know if it is any good.)

Don’t get me wrong, the market for movies works reasonably well, but that is because the demand they satisfy is the demand for entertainment. They don’t focus on making good movies, but on making entertaining ones. That is a much simpler problem, because it is much easier to assess whether a movie will be entertaining than to assess whether it is good. Just checking Imdb usually tells me whether I’ll enjoy watching a certain movie. It certainly doesn’t tell me if the movie is good. (I think I’ll be OK with Avatar, though I suspect all the preaching about the environment and/or Bush will get old after about 30 minutes or so.)

So no, just like Hollywood produces entertaining movies, not good ones, a free marketplace of information would be entertaining, but not reliable. Fox News is the ultimate example: what they do is tell their audience what they want to hear. And they’re good at it, too. Fair & Balanced it is not. Reliable/good/filter even less.

You don’t seriously think you are responding to the points, right?

The point is that shareholders are not using corporations to exercise their First Amendment rights as a factual matter. I have my money in money market accounts mangaged by Vanguard. As a result, I’m a shareholder in many publicly traded companies. I don’t even know what those companies are! I’m willing to bet that most people are like me.

Even the ones who are not like me (i.e., they know what shares they own and in which companies) aren’t using those companies to express their political views or otherwise exercise their free speech rights.

Furthermore, the corporate entity is created by law. Something that is created by law cannot have constitutional rights bestowed to people. It makes no sense. If the State of Maine passes a law saying dogs should be treated as people in every way, the Federal constitution does not suddenly bestow on these dogs free speech rights (or any other rights). It just doesn’t.

It’s shocking how conservative scholars (like the ones who blog here) are so interested in strict constitutional intepretation, except for the Second Amendment and the First Amendment (as applied to corporations). Straight up crazy.

Martinned:
But how do you know that anyone has the incentive to do that? Remember, the peculiar thing about a market for information is that there is no way to verify its quality until after you’ve already bought it, and even then it still may be difficult. That’s why lawyers get paid based on whether they win, not based on whether they give good legal advice. (The former is used as a proxy for the latter.)

You are confusing the market for ideas with the market for content.

Look at the market for content. You can’t personally tell the quality of a movie until after you’ve bought it. What is the result of this peculiar circumstance? People rely heavily on movie reviews, opinions of friends, and the like. Theaters carefully control the movies they show to ensure they maintain a reputation. Laws to require Hollywood to make any script or movie theaters to show any movie would be obviously disastrous.

But the market for ideas is not like that. Consider two advertising campaigns for a candidate for President:

One makes a ten second ad “Vote for Joe”. That’s their idea, right? And they show it where it’s cheapest, in Canada. They expose millions of Canadians to the idea.

Another makes a sixty second ad that explains *why* you should vote for Joe. And they don’t show it where it’s cheap, they show it in swing areas.

Both campaigns cost the same amount and the second exposes far more people to the idea. But clearly one is much better than the other, and it’s not the first one.

The marketplace for ideas is a battle for mind share just as the marketplace for products is a battle for money share. It is all about presenting the idea in the right way to the right people such that they will “buy” it.

Introducing a person to an idea is akin to introducing a person to a product. That’s not the sale, it’s the precondition to the sale.

David Schwartz: If you aren’t going to regulate a market for quality (…) you have to let companies position themselves as market gateways.

But how do you know that anyone has the incentive to do that? Remember, the peculiar thing about a market for information is that there is no way to verify it’s quality until after you’ve already bought it, and even then it still may be difficult. That’s why lawyers get paid based on whether they win, not based on whether they give good legal advice. (The former is used as a proxy for the latter.)

Martinned: Most importantly, none of this backs up your claim that “crowding out is a perfectly legitimate speech tactic”. Your Wall-Mart example fails on its face: Wall-Mart doesn’t promote the best products, but only the products with the best profit margin.

The reason a market works is because these are the same things. The attributes that make a product the best also make it the ones with the best profit margins.

Moreover, in a perfect market, Wall-Mart would sell the full range of products, from super high quality to almost literally poison, each with an appropriate price.

Perhaps, but with some way for purchasers to tell which is which. Walmart is not a neutral product access provider, it’s a market gateway, and part of its value is the fact that customers can determine certain attributes about a product simply by it being sold at Walmart. This is a market inefficiency from a theoretical point of view, but real-world markets will always contain market gateways because they add value by reducing transaction costs.

People with a low willingness to pay could accept a non-zero risk that they’re buying poison. (But now we’re back in real economics.)

Perhaps, but then a lot of other people wouldn’t shop there at all because the extra cost of personal effort to make sure they’re not buying poison would make it easier for them to shop someplace else. That is, Walmart doesn’t just sell products at a low cost, it also filters products and that is part of the service it provides. This filtration is vital for an effective market.

If people complain to a supermarket that a product is simply unfit for the purpose claimed on the package, they won’t drop its price. They will drop the product. Part of the service they provide is filtering out the unsuitable products from the suitable ones. We don’t see this too much in the United States because laws already do a lot of this filtering. You pretty much can’t sell meat that’s unsuitable for consumption at any price. But if you did, supermarkets would build their reputation on either not carrying such products or clearly distinguishing them.

Since there can be no such regulation in the marketplace for ideas, market gateway functions are *vital*. They perform the quality control that is needed unless every single consumer is to become an expert in quality determination of every product. And that’s risky, dangerous, and people just won’t bother.

An effective real-world market requires that the companies that bring you products also help you distinguish the good products from the bad ones. It is ridiculous to argue that every consumer must personally bear the full cost of evaluating every possible product and should somehow be prohibited from being assisted in this function. Real-world middleman provide exactly this valuable service.

Good ideas don’t magically float to the top. The question of which ideas float and which sink depends on the incentives of the players. In a perfect market for goods or services, everyone’s incentives are aligned. In an imperfect market, not so much. Please feel free to describe what the marketplace for ideas looks like anytime.

It looks like a dysfunctional and badly-regulated market right now. It’s equivalent to a marketplace for food in which there are no regulations against selling bad food and ‘must carry’ regulations requiring supermarkets to put poison alongside quality food and sell them at the same price with no distinguishing markings.

If you aren’t going to regulate a market for quality, and we sure aren’t going to do that for ideas, then you have to let companies position themselves as market gateways. Otherwise, the cost to tell the good from the bad allows products to be pretty darn bad and still be accepted simply because they’re not bad enough to overcome the cost of evaluating them accurately.

It is a simple matter of paying for what you are buying.

Buddy Hinton: Frankly, I would rather have snark than a completely irrelevant case.If you like the corrupting influence of big money in government, then, of course, you will hate my taxation proposal on politically motivated grounds. I have yet to see a real First Amendment objection to it. Way I look at it is this:much fairer and better policy to tax large political contributions than my income.

Buckely establishes that direct and indirect political spending is speech. As a result, taxing it at a punitive rate is an unconstitutional burden on speech. Alternatively, as dcp suggests, your proposal could be considered content-based speech regulation, in which case it is again unconstitutional. (Unless saved by a compelling state interest, etc.)

Either way, the problem starts with the case that I linked. You’re welcome.

Oren:

You are asserting as ‘questionable’ something that no one claims — that equity holders want direct control over the political speech that the corporation makes in their name. Their freedom to speak does not get erased simply because they contractually delegate that authority to someone else.

The fact is, “owners” of a corporation do not have the power to express political speech funded by corporate spending.

I don’t understand this. First, do you mean the actual owners or the “owners” in some scarequote sense? The shareholders in a joint-stock corporation have entered into a contractual agreement in which they voluntarily surrender decision-making power to management (more than voluntarily, they pay management many millions to make the decisions!). The vast majority express no desire to change this arrangement despite their manifest power to do so. 

I am reacting to Professor Somin’s central thesis in these posts – that “owners and employees are [] persons and that that status enables them to use corporations to exercise their constitutional rights.”

It sounds like you agree with me that Professor Somin’s thesis is invalid at least as to the owners of a corporation (shareholders).

As you point out, contrary to Ilya’s assertion, shareholders do not – in fact, can not — exercise their constitutional right to speech through corporate action. You go further and says that shareholders don’t want to exercise that right, but that’s not really relevant to whether they have the legal power to do it or not.

If you like the corrupting influence of big money in government, then, of course, you will hate my taxation proposal on politically motivated grounds. I have yet to see a real First Amendment objection to it. Way I look at it is this:

much fairer and better policy to tax large political contributions than my income.

Buddy Hinton: Porn is taxed, liquor is taxed even more and the plan I propose (that is, taxing large campaign comtributions at a steeply progressive rate) here is not like Buckley v. Valeo in the slightest.

I tried to reply to you earlier without using the kind of snark that speech fan used. But now you’re just asking for it.

I look forward to seeing Justices Stevens et al. upholding South Dakota’s abortion tax, along with mega-taxes on porn and contraception.

That was easy.