The Washington Post reports:
After the Supreme Court declared that corporations have the same rights as individuals when it comes to funding political campaigns, the self-described progressive firm [Murray Hill Inc., a small, five-year-old Silver Spring public relations company] took what it considers the next logical step: declaring for office.
Behind the stunt, I take it, is a substantive argument I’ve heard others make before — because corporations can’t run for office (or, in other versions of the argument, can’t vote), they shouldn’t be able to spend money to support or oppose candidates for office, either.
But that can’t be right. After all, the Washington Post spends money to support or oppose candidates for office — you can’t run an editorial without spending money — and presumably has a constitutional right to do so (or so nearly all advocates of campaign finance restrictions seem to acknowledge). Likewise for overtly opinionated magazines. Yet newspaper and magazine corporations can’t run for office, or vote, either.
Likewise, advocacy groups — the NRA, the Sierra Club, and the like — have the right to spend money to support or oppose candidates for office. Yet the Sierra Club can’t be elected to office, and the NRA can’t vote.
The same is true of others. If you as a New Yorker want to spend money to speak in favor of or against a candidate for office in Alabama, you’re free to do so. Yet you can’t be elected to office in Alabama, or vote in Alabama. If you want to spend money to speak about candidates in several states, you can do that, though obviously you may only vote in one place, and be elected to office from one place. If you’re 20, you’re free to spend money to speak about Congressional candidates, even though you can’t be elected to Congress.
There’s nothing that says that First Amendment rights are limited only to those people who may vote, or who may hold office. The argument that corporations shouldn’t have First Amendment rights — or, more precisely, the argument that nonmedia business corporations shouldn’t have First Amendment rights, while media corporations and nonprofit advocacy groups do have such rights — because corporations can’t be elected to office, or can’t vote, thus doesn’t make sense.
Thanks to Steve Rappoport for the pointer.
A note about the media analogy:
Some people argue that media speakers should have more rights than nonmedia speakers, because only media speakers are protected by the Free 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 Press Clause refers to technologies of mass communication and protects anyone who uses those technologies, rather than just referring to some supposedly favored industry. Nor is it normatively appealing, I think, to treat a certain industry (which has its own institutional biases) as constitutionally favored over others.
But beyond this, let’s assume for the sake of argument that the Free Press Clause just applies to those in the media industry, and the rest of us are only covered by the Free Speech Clause. That still doesn’t explain why Free Press Clause rights differ from Free Speech Clause rights with respect to whether they can be exercised by entities that aren’t entitled to vote or hold office.
If we think the freedom of speech part of “the freedom of speech, or of the press” protects only voters or people eligible to be elected to office, why shouldn’t the freedom of the press part of the same text likewise protect only voters or people eligible to be elected to office (such as individual citizens who are eligible to vote and who own newspapers as individuals)? Or if only individuals have Free Speech Clause rights because rights can only belong to individuals, why shouldn’t Free Press Clause rights likewise be seen as belonging only to individuals (again, those individuals who own newspapers)? Or if the government may demand surrender of Free Speech Clause rights as a condition of the benefit provided by the corporate form, why may it not equally demand surrender of Free Press Clause rights?
wehted says:
“The same is true of others. If you as a New Yorker want to spend money to speak in favor of or against a candidate for office in Alabama, you’re free to do so. Yet you can’t be elected to office in Alabama, or vote in Alabama. If you want to spend money to speak about candidates in several states, you can do that, though obviously you may only vote in one place, and be elected to office from one place. If you’re 20, you’re free to spend money to speak about Congressional candidates, even though you can’t be elected to Congress.”
This seems to apply solely to corporate interest, rather than personal politics. Though I do realize that this is a bit outside the scope of your argument.
March 15, 2010, 4:50 pmHans Bader says:
Children have First Amendment rights, but no one suggests that they have the right to vote or run for office. See Tinker v. Des Moines School District (1969) (children have free speech rights even in school); McConnell v. FEC (2003) (children have rights to make donations to politicians).
Similarly, the fact that corporations have a right to free speech does not mean they have the right to vote or run for office.
Corporations have long been held to have free speech rights under U.S. law and under the European Convention on Human Rights.
March 15, 2010, 4:55 pmRowerinVA says:
The misunderstanding of “freedom of the press” is galling. That term does not refer to people known as “the press” but to a physical object, a wood-and-iron printing press. Many have shown this via research. More importantly, it is easily seen by the structure of the phrase “the freedom of speech, or of the press.” Both parts of the phrase involve a process. “Speech” is a process used by a person; “speech” itself is not a person. So too with “press.”
In the phrase “the freedom of speech, or of the press,” no one thinks “of speech” means a group of people called “speech,” yet a faction of anti-speech people has concluded that the phrase does refer to a group of people called “press.” This is grammatically nutty. The focus of the clause is on process, meaning the way to do something, of influencing government. You can get your message out through “speech” (orally, in person) or through “press” (vicariously, through publication).
The First Amendment did not create a unique protected class of people known as “the press.” Nor would one expect it to. The founders, with few exceptions (such as Franklin), were not media types as we would understand them today; rather, they were planters and tradesmen who created the occasional broadsheet and had it printed up. They were much closer to today’s bloggers than to today’s newspaper reporters or editorialists. To the founders, everyone (or at least every educated free white male, but that’s another story) was capable of using the press and had a right to do so. If they were asked to define “press” as a group of people, they would have had the term apply to all able-bodied citizens.
Kind of like they did with the militia, but that’s the next amendment.
March 15, 2010, 5:25 pmJ. Aldridge says:
Corporations are formed to shield people from liability and as business entities. People form corporations to raise money, not express themselves as advocates for whatever.
Publishing a book or newspaper is the business of publishing the views or events of others.
March 15, 2010, 5:31 pmSimon Jester says:
It is one thing to say that a corporation has no first amendment rights, but what about the public relations manager of a corporation? The advocacy director of a non-profit? The editor-in-chief of a major newspaper?
The critics of CU (and some of the supporters) fail to address the free speech of these individuals. Sure, they are authorized by their job title to spend corporate funds, but they are individuals wishing to speak.
Some of those individuals could even vote in elections or seek public office.
;->
March 15, 2010, 5:33 pmPLR says:
This is what we get for pretending that a 200+ year old elliptical document has The Answer to Everything.
March 15, 2010, 5:34 pmShelbyC says:
Not everything, just what government can and can’t do. After all, if we decide that the constitution doesn’t carry any weight, why should be bother to obey laws passed by Congress? The only reason anybody thinks that Congress has any business telling me what to do is that the constitution says they do.
March 15, 2010, 5:39 pmFederal Farmer says:
The Founders were relying on a little common sense on our part…
Speaking of which, when Jefferson wrote “we hold these truths to be self-evident” he was giving up more credit than we deserve.
March 15, 2010, 5:42 pmShelbyC says:
People form corportations to advance many interests, ranging from making money to protecting the environment to the advancement of [black] people. And the often find it necessary to engage in political speech to advance those interests.
March 15, 2010, 5:42 pmJ. Aldridge says:
That has nothing to do with the function of corporations. You are talking about what people can already do without any corporate umbrella.
March 15, 2010, 5:48 pmTom Huff says:
Great post. I also note that even before the 19th Amendment gave women the right to vote, they still had First Amendment rights. One does not automatically follow from the other.
More broadly, I think these sorts of arguments improperly conflate civil rights and political rights. Political rights—e.g., the right to vote, to run for office, to testify in court, etc—have always been limited to qualified members of the body politic. We deny voting rights to all sorts of people–convicted felons, children, the mentally incompetent, etc. Civil rights are quite another matter.
March 15, 2010, 5:51 pmFederal Farmer says:
Irrelevant. Tell me where it states that people cannot use a corporation thusly?
In Illinois corporations can literally be formed “for any lawful purpose.” Nothing prevents an IL corporation from advocacy. There are IRS restrictions if you want special tax exemptions that do limit political speech, but those having nothing to do with being a corporation but reflect that corporation’s tax status with the IRS.
March 15, 2010, 5:53 pmJ. Aldridge says:
What if IL says corporations may not be used to raise money for political advocacy? Would that be aimed at the the “corporation” or at individuals personally?
March 15, 2010, 6:03 pmgracchus says:
Aren’t the NRA and Sierra Club corporations?
March 15, 2010, 6:03 pmmetro11 says:
J. Aldridge:
read the text of the 1st amendment. it protects “speech” – not speech by individuals.
the freedom of speech clause of the first amendment + the freedom of association clause + the freedom of the press clause (for pamphleteers like the publishers of “Common Sense”) … taken together lead to the inevitable conclusion that speech by groups is just as well protected by the constitution as speech by individuals.
if this were not true, Congress and/or state/local governments could shut down speech by The Washington Post … and the World Wildlife Fund … and this blog.
March 15, 2010, 6:05 pmJoe says:
“After the Supreme Court declared that corporations have the same rights as individuals”
It didn’t. They didn’t in the Lochner Era. It said that corporations have certain rights that individuals have. Not that any one side has a monopoly here, but this is a case of bad premises leading to a lot of angry exposition. The same goes to the argument that the ruling struck down the possibility of all regulation of corporate campaign spending. Hard to do this when it upheld two types.
BTW, I find the “press” as instrument argument pretty convincing, but is there case law that makes it? For instance, the Internet has been secured as “speech” when it seems to me it might be more appropriately part of the press.
March 15, 2010, 6:10 pmFederal Farmer says:
We can ‘what if’ all day. As the law, at least in IL stands, corporations are not restricted with respect to ‘speech’. Theoretically they could amend their laws with respect to corporations to create a speech-limited corporation. Not sure how they could limit ‘foreign’ (non-IL corporations) from having ‘speech’ rights though. I suppose they could prevent IL-based TV stations and newspapers from accepting such ads, but cable? Internet? It quickly becomes an insurmountable problem.
March 15, 2010, 6:11 pmtroll_dc2 says:
The people behind the Murray Hill caper are being a bit silly, but that silliness is useful if it leads to a court case to clarify the law.
March 15, 2010, 6:19 pmJoe says:
As to the second part of my comment, though the Supreme Court has often spoke of a general “freedom of expression,” many cases can be cited to point out that the “press” is not just institutional. For instance, “The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets.” LOVELL v. CITY OF GRIFFIN.
This includes the “lone pamphleteer,” which can be a person. A case in that era also addressed the first claim:
Appellant contends that the Fourteenth Amendment does not apply to corporations; but this is only partly true. A corporation, we have held, is not a ‘citizen’ within the meaning of the privileges and immunities clause. Paul v. Virginia, 8 Wall, 168. But a corporation is a ‘person’ within the meaning of the equal protection and due process of law clauses, which are the clauses involved here
GROSJEAN v. AMERICAN PRESS CO. More discussion here.
March 15, 2010, 6:23 pmpress corps corporation, inc. says:
Resident aliens can neither vote nor hold office, yet have First Amendment rights.
March 15, 2010, 6:31 pmHoward Gilbert says:
“Congress shall make no law … abridging the freedom of speech” This language prohibits Congress from passing laws that have a particular effect. Although it is commonly associated with a human right to free speech, the text is not conditioned on any particular right of the speaker.
When the Amendment was passed, most of the people did not have the right to vote or run for office. I doubt that John Adams imagined that Congress could pass a law prohibiting Abigail from speaking based on the principle that women did not have the right to vote.
Everyone agrees that the Constitution does not reach overseas. Everyone also agrees that the First Amendment prevents the government from blocking my subscription to the Times of London, even though the physical press that produces the newspaper and its owners are located outside the range of the Constitution. That is because the First Amendment, as the Court mentions throughout Citizen’s United, protects my right to hear and read the opinions of others. “Freedom of speech” is not exclusively based on the “right of the speaker” but may also include rights belonging to the listener to consider every possible position in “the free marketplace of ideas”.
If “freedom of speech” addresses either the right of the speaker to speak and the right of the listener to hear, then it is enough that the Constitution extend to either of them (it reaches me and establishes my right to subscribe even when it does not reach the paper overseas). Even if there were some demand of humanity, it is not required that both the speaker and listener be people. If I want to see the movie, then it is not necessary that Citizen’s United be a person who produced it.
[I leave it up to others to decide whether speech between two non-human entities is protected. If a corporation wants to speak to a tree, I do not feel strongly one way or the other whether such speech is protected.]
It would not have required much more language to express the limited liability of corporations without introducing the unfortunate simile that they are like an artificial person. Nothing in the Citizen’s United opinion depends on artificial person-hood. It is the critics of the decision who first invent an imaginary basis for the decision and then seek attack an idea that is nowhere in the text, reasoning, or logic of the decision. I suspect one can set up a Trust to promote an idea without anyone objecting that a Trust cannot speak because it isn’t legally an artificial person like a corporation.
A corporation may have no human right of free speech. Nevertheless, under the clear text of the amendment, Congress may make no law abridging the freedom of that corporation to speak or publish.
March 15, 2010, 6:51 pmJ. Aldridge says:
Because there is no law preventing them from.
March 15, 2010, 7:10 pmJ. Aldridge says:
The First Amendment does not do that because the federal government would been equally unable to do that without the First Amendment. The 1A is directed at those who do not understand the concept of limited and defined powers.
March 15, 2010, 7:16 pmArkady says:
@EV
Ah, isn’t that, prima facie, begging the question (and I mean petitio principii)?
March 15, 2010, 7:20 pmAbdul Abulbul Amir says:
Some corporations are formed to make money, like Apple, New York Times Corp, or General Electric. Others like the civil rights organizations NAACP and the National Rifle Association are formed expressly for the purpose of advocacy. Those two organizations are examples of how the “little people” organize to be heard.
March 15, 2010, 7:32 pmNowMDJD says:
Non-profit corporations are not necessarily formed to raise money. They are formed for a variety of charitable and advocacy reasons. The Sierra Club and the NRA are examples.
March 15, 2010, 7:35 pmFederal Farmer says:
True, but the 1A would be invoked to prevent such a law from being executed.
March 15, 2010, 7:38 pmJ. Aldridge says:
I don’t think so. They exist to finance their agendas through the courts.
As Paul Madison put it, freedom of speech does not mean right to be heard.
March 15, 2010, 8:06 pmNRA4Eva says:
If the NRA were running for Congress, it would have my vote.
March 15, 2010, 8:13 pmDave N. says:
Some corporations are formed specifically to run political campaigns. For example, John McCain’s campaign committee this year is Friends of John McCain, Inc. Likewise, John Kerry’s 2004 campaign committee was Kerry-Edwards 2004, Inc.
I suspect political campaigns use corporate shells to shield the candidate from personal liability, but that is just a guess.
March 15, 2010, 8:17 pmAbdul Abulbul Amir says:
Financed through the courts? When was the NRA funded by a court?
March 15, 2010, 8:46 pmq says:
Modern news corporations are formed to raise money as well, not express themselves as advocates for whatever. They are in the business of disseminating news, much like Apple is in the business of selling computers and devices. Of course, both may from time to time wish to express an opinion on a matter; the news company does it through its newspaper, Apple does it through a PR agency.
In any case, why should it matter? We all have our various motivations for advocating an issue or person. Why is money somehow more heinous? Should we ban the rich from expressing their opinion on estate taxes? Should we ban the poor from expressiong their opinion on school vouchers?
March 15, 2010, 9:26 pmjuris imprudent says:
Financed through the courts? When was the NRA funded by a court?
Doubly amusing and wrong, considering the maneuvering the NRA did to halt Heller.
March 15, 2010, 10:32 pmJ. Aldridge says:
I meant they raise funds in order to fund the legal bill for arguing their cause in courts, hoping the court will be an easier venue to enact their argument then doing it the old fashion way. Phony incorporation has made this a reality.
March 16, 2010, 5:32 amuberVU - social comments says:
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March 16, 2010, 5:43 amLalala says:
It doesn’t bolster your argument at all to say that the Sierra Club can’t run for public office, because that’s the very point the firm is making — that it’s inconsistent (in their view) that corporations have speech rights like those of individuals but not other rights of individuals. Obviously they don’t actually believe their firm can run for office; they’re simply making a point. It may ultimately be a weak point, but it doesn’t make any sense for you to cite the state of the law as a response to their argument that the state of the law is ridiculous.
March 16, 2010, 9:04 amAssistant Village Idiot says:
People hear dark music underneath when they hear the word “corporate.” Is there anything else happening on their side of the discussion? I have seen nothing that is not more easily explained as rationalization.
March 16, 2010, 9:31 amRobert Smith says:
Due to the extent of the regulatory State and taxes, even those corporations formed only to make money will often need to engage in political speech (and will have a self-evident right to do so) to try and preserve their ability to make money.
A dog may not be allowed to bite his master when he chains or beats him, but surely he has the right to howl.
March 16, 2010, 9:51 amFedya says:
If I form a corporation called “Enemies of John McCain, Inc.”, can they sue me for trademark infringement? ;-)
March 16, 2010, 2:43 pmCitizens United « Scotch Pundit says:
[...] First Amendment Rights vs Rights to Vote be a Candidate [...]
March 17, 2010, 12:07 amChris Travers says:
I don’t know what you are saying. Furthermore, a resident alien, after becoming a naturalized citizen may be able to vote, but cannot hold the office of President. And I would argue that appointing a family-held corporation to the bench of the Supreme Court would violate the Constitutional prohibition against titles of nobility ;-)
March 18, 2010, 1:55 amChris Travers says:
The obvious question is whether the Sierra Club can vote for the NRA ;-)
Just kidding (ducks)…..
March 18, 2010, 1:56 am