Following Citizens United, I heard many people argue that the Court was wrong because corporations should not be seen as having First Amendment rights — not just that they do have First Amendment rights but that there’s some special compelling interest that justifies restricting corporate speech about candidates, but that corporations aren’t people and therefore can’t have First Amendment rights at all. (UPDATE: I don’t agree with this, for reasons that include those briefly sketched here, but I set those arguments aside for now.) Let me then ask this question of our readers who take this view:
Today, Google’s U.S. query page features an anti-Stop-Online-Piracy-Act statement from Google. Say that Congress concludes that it’s unfair for Google to be able to speak so broadly, in a way that ordinary Americans (including ordinary Congressmen) generally can’t. Congress therefore enacts a statute banning all corporations from spending their money — and therefore banning them from speaking — in support of or opposition to any statute. What would you say about such a statute? Again, I limit the question to those who think corporations generally lack First Amendment rights.
(1) Perfectly constitutional, because corporations aren’t people, and thus have no First Amendment rights.
(2) Unconstitutional as applied to Google, because media corporations do have First Amendment rights, though other corporations don’t, and Google should be seen as a media corporation, even as to its query page rather than as to news.google.com and the like.
(3) Unconstitutional, because though corporations aren’t people and thus have no First Amendment rights for purposes of advertising in support of or opposition to candidates, they are people and thus do have First Amendment rights for purposes of other speech.
(4) Unconstitutional, for some other reason.
AnonLurker says:
I don’t see why the First Amendment is necessarily tied to person-hood. Look at its text. The First Amendment does not say “Congress shall not respect the free speech of any person”; it says “Congress shall make no law .. abridging the freedom of speech”. It seems plausibly tenable to me to say that the freedom of speech is not limited to persons, but applies to all speech, or applies more broadly to some categories of speech from corporations.
I know you’re trying to make some snarky point, but I think the point fails. Personally, I’m not prepared to advocate anything one way or another about this person-hood stuff, because I don’t really understand it, but it seems to me that your attempt at refuting the idea is not convincing (at least not without further elaboration).
January 18, 2012, 11:44 amLaura(southernxyl) says:
Can I just ask, and sorry if this is OT, but would it make any difference to your argument if an individual’s signature appeared below the statement? Say, the CEO of Google? Because he still has a way of communicating that the average congressman doesn’t.
January 18, 2012, 11:46 amawp says:
Did the supreme court really say that a corporation is a person who’s right to free speech is protected by the constitution?
Why didn’t they say that individuals’ right to free speech does not end when they practice their right to freedom of assembly/association?
January 18, 2012, 11:49 amErik says:
AnonLurker, I agree. I’m generally in favor of Citizen’s United on the grounds that the First Amendment doesn’t require personhood.
That means I am not the target of the blog post, though. I like having unions, the NAACP, etc. fight for their interests in the public airwaves and I recognize a ban on political speech could hurt them too.
January 18, 2012, 11:50 am(Not That) Bill O'Reilly says:
“Corporate Personhood,” as I understand it from having read a few opinions on the issues (though I admit to not having made it all the way through Citizens United), is actually just shorthand for the latter formulation you posit. Scalia in particular has a habit of stressing that perspective when he writes on campaign finance.
January 18, 2012, 11:56 amRobert says:
To rephrase and extend Laura’s question:
Assuming for a moment we go all the way to the extreme of the “no personhood” argument, and the corporation is purely a property owned by an owner (however subdivided). In this case, the question would resolve into “does an owner have the right to utilize his property and resources to further his speech in some manner generally unavailable to other citizens who do not own similar property?”.
At the ultimate limit, the question becomes “Do I have a right to use a megaphone I own to enhance the scope of my communications capability beyond that which a non-megaphone-owning citizen could manage?”
January 18, 2012, 11:57 amShelbyC says:
Can’t see how it would. It’s still still google’s corporate resources, domain name, etc, being used.
January 18, 2012, 11:57 amDan the Man says:
Interesting question because it appears it’s generally accepted that Google does not have first amendment right to say anything it wants in its own query pages. In particular, anti-trust criticisms have been used against Google for favoring its own services in the results in its query pages.
“The company is fighting off calls on Capitol Hill over antitrust claims [...] Senators wanted to gauge the power the Mountain View, Calif. company has over the search industry, and favoring Google’s own service is sure to raise questions.”
I don’t think anyone argued (until now) that the anti-trust claims against Google mentioning it’s own services in its query results were violations of the 1st amendment. Do you believe the anti-trust laws as applied to Google speaking about its own services on its query page is a violation of the 1st amendment?
January 18, 2012, 12:01 pmBrett Bellmore says:
Unconstitutional, because although corporations are not people, there’s nobody there BUT people for the law to silence. I call it the Soylent Green approach to corporations:
They’re made of people!
January 18, 2012, 12:02 pmJoeJP says:
It’s a valid question but the premise behind it underlines how the ruling is being used to target something far beyond the limited scope of the ruling. The ruling at most was about treating corporate speech equally. Not a single justice thought corporations have no 1A rights as such. The alternative is akin to upholding Berea College since corporations don’t have associational rights, so the segregation law there was acceptable.
The ruling itself spoke for the people at large:
“Citizens must be free to use new forms, and new forums, for the expression of ideas.”
The corporate form is one such thing. Mitt Romney, who I’m no big fan of, is ridiculed for saying corporations are people. If the video is let run a bit more, he says that corporations are made up of people. As some note, the corporate form changes the resulting speech in some ways, and if this requires special regulation, we can talk about it. But, support of corporations protesting SOPA is a pretty telling thing.
January 18, 2012, 12:04 pmBen P says:
On the contrary, I think this is A classic law professor question. You ask the students
I would say that the statute would be (4) Unconstitutional for some other reason. Although the reason I’d articulate is not dissimilar to (3) in some ways.
Corporate personhood is basically irrelevant. I am firmly of the belief that corporations are creatures of statutory law and can’t have natural rights. However, when granted certain rights by law, I think constitutional rights necessarily have to attach. It would be absurd to suggest that a corporation has the right to own property, but is not protected by the takings clause, or standing to object to unlawful searches of that property. Whether those rights are automatically co-extensive with individual rights is an interesting question but irrelevant for the moment. Assume that whether its because of corporate personhood or CU’s theory that individuals can’t lose free speech rights merely because they choose to speak through an association, assume that corporations do have some level of first amendment protection.
I think the law fails because it fails strict scrutiny. Whereas I hold the opinion that properly drafted campaign finance regulations absolutely should be allowed under strict scrutiny because of the very important interest in ensuring free and fair elections and reducing corruption.
January 18, 2012, 12:04 pmLaura(southernxyl) says:
Is there any precedent whatsoever to an individual’s right to free speech being subject to not using corporate resources? I can’t think of a single one.
January 18, 2012, 12:08 pmShelbyC says:
Interesting. Why wouldn’t it? Arguably, the portions of google’s search results that contain it’s own services are commercial speech.
January 18, 2012, 12:11 pmwohjr says:
I like #3. We provide corporations special rights, therefore in exchange they should be restricted in certain of their rights especially as they pertain to the political process. Corporations can’t vote last time I checked, so why should they be able to exert such weight in voting?
I view advocacy is different than reportage, although obviously there will be times where this is a close call. Got to start somewhere. What does it mean when it costs $1b to run for President and the median income in the US is, what, ~30k?
January 18, 2012, 12:13 pmShelbyC says:
Really? Hasn’t the subject of corporate expenditures in furtherance of speech been the topic of a little bit of discussion lately? In fact, I kinda thought it was the subject of this very post.
January 18, 2012, 12:17 pmMark Field says:
As one who believes that corporations have no Constitutional rights, I’d say the law is constitutional. The obvious and easy solution is to have some Google executive put up the statement in his own name, using his own money.
January 18, 2012, 12:18 pmIdag says:
I would agree with the premise that Congress can stop Google’s speech. That is because “Google” (assuming that it is incorporated) is not a real entity, but is simply an abstract and artificial creation of state law. As a corporation, is not a human being and it does not have the rights that are enjoyed by human beings. It is interesting that states and the federal government have the power to make changes to the fundamental existence of a corporation (e.g. through piercing the veil doctrines and antitrust laws), yet they apparently cannot stop a corporation from speaking.
However, I would add a caveat to the above discussion that the government cannot stop the individual employees of a corporation from speaking, as those employees are human beings with First Amendment rights. Thus, Google’s SOPA statement could still go out if it was attributed to and signed by Google’s CEO.
January 18, 2012, 12:18 pmanon says:
Is there a difference between google changing the text on its home page that it is still serving to the same crowd that comes looking for it anyway,
and some other company actively paying lobbyists thousands of dollars to march their message straight into the offices of our legislators, and give them money for re-election and campaign commercials?
January 18, 2012, 12:19 pmDan the Man says:
My point was that (until now) it would very hard to find any law professor, attorney, judge, etc. who would even suggest such a thing i.e. the point of view is very non-mainstream. Of course, I’m not surprised the Volokh Conspiracy or its commenters would suggest such a thing.
January 18, 2012, 12:21 pmShelbyC says:
How would that work? Suppose I wanted to post a different message on google’s page? Would I have to have the same access as the google exec?
January 18, 2012, 12:22 pmSmooth, Like a Rhapsody says:
wohjr:
Is $1B too much?
January 18, 2012, 12:24 pmHow much is the right amount (bearing in mind that this is about $9-10 per actual voter)?
Mr. Mouse says:
My knowledge of law roughly matches a 2-week old puppies mastery of English pronunciation.
That said, I’d think that this would be perfectly constitutional with the givens stated.
I’d also think it might be a great way (effectiveness, not desirability of which it has little to none) to ensure all lobbying goes away, as expenditure on a lobbying firm, on a market report to send to your representatives, or even hiring of an internal employee to communicate your desires would seem to be caught up in the ban.
January 18, 2012, 12:25 pmMark Field says:
I should add that I’d be very surprised if Congress passed such a law, given that we have the best Congress money can buy.
January 18, 2012, 12:27 pmThis Guy says:
Fantastic hypo, Eugene. I’ll keep this one in the hopper.
Keep up the great work.
January 18, 2012, 12:27 pmuh_clem says:
I think we have a winner here.
I also think it is proper to make the distinction between ads advocating for or against legislation vs ads advocating for or against candidates. There’s a gray area between campaign contributions and bribes, hence the (constitutionally allowable) limits on contributions. Citizen’s United provided a big loophole around these limits, essentially legalizing what is arguably bribery (or extortion in the case of the negative “issue ads”). Whether the huge contributions to the PACS come from corporations or wealthy individuals is a sideshow, not the main issue.
Advocating for or against legislation doesn’t have the same connection to bribery/extortion.
January 18, 2012, 12:27 pmLaura(southernxyl) says:
Shelby, the OP talks about Google speaking. It doesn’t talk about people using Google to speak. It’s also talking about the personhood of corporations. If the CEO of Google speaks, there’s no personhood question at all.
January 18, 2012, 12:27 pmneurodoc says:
The question was addressed only to those who believe the corporations lack personhood, and for that reason do not have FA rights.
And that “some snarky point” which you misss is what might follow by extension as a matter of logic and law if corporations did lack FA rights because they lacked personhood, meaning Citizens United was wrongly decided. No snark in that, unless you think the questions law school professors tend to ask are generally snarky, which is a point of view.
January 18, 2012, 12:33 pmAnthony says:
I don’t think corporations are persons, but it’s pretty clear that the 1st amendment is intended to protect at least some non-persons, since the ‘press’ is also not a person, but since it singles out one type of corporation as opposed to mentioning all corporations, it’s not intended to be a blanket prohibition on restrictions of corporate speech. This probably means rational basis or intermediate scrutiny, rather than strict scrutiny. In which case I’ll go for (4) some other reason, as the proposed law doesn’t seem to fit even rational basis.
January 18, 2012, 12:34 pmBruce Hayden says:
The problem that I see with banning Google from speaking out, as they have here, is that what they are doing is mobilizing the online community against specific legislation that is currently being pushed by hundreds of lobbyists in Washington, D.C. working for the companies that stand to gain the most from the legislation.
Banning this sort of speech would then further push corporate speech onto K Street and the halls of Congress, and more out of the view of the American public – which, I would suggest is just what those who want to limit Google’s speech here are pushing for. We now have a trillion or so dollar deficit, and much of that is a result of rampant rent seeking, utilizing those very same lobbying firms that are pushing this rent seeking scheme.
January 18, 2012, 12:37 pmanon says:
Was my comment removed? If so, I am curious why?
January 18, 2012, 12:39 pmCorey says:
There is a relevant difference between blacking out a logo on a website and bribing a public official with soft money.
January 18, 2012, 12:39 pmJohn says:
I think the difference is transparency. With the Citizens United decision, Corporations can donate large sums of money to SuperPACS, which can then promote vague or not so vague messages in support of particular candidates or policies. The interests vested in such a situation are not explicitly clear to the public.
Here, in comparison, Google is making it explicitly clear whom is doing the speaking, and one only needs to be vaguely aware of the SOPA horror show to know why Google would oppose it.
In this way, Google’s actions are much more purely speech, whereas I find the Court’s money=speech premise much more questionable.
January 18, 2012, 12:39 pmAnonLurker2 says:
Would such a law stop all corporate lobbying? Oh boy, leaving aside what the constitution says I have never seen a more desirable outcome.
January 18, 2012, 12:40 pmMark says:
The corporations we are discussing are not made of people. They are made of shares, property like your tv or your car. They are bought and sold through layers of corporate ownership and stock funds which place their governance far from the people who ultimately own them. They may be citizens, legal non-citizen residents and aliens.
As artificial creations corporations have no rights. The interesting question is when they serve as the vehicle for expressing our rights as owners. For the normal property rights issues which are the day to day business of share corporations it is natural.
Do corporations serve as a way for people to practice our freedom of assembly and association? That would be another kind of corporation, one that is not property bought and sold as shares, one controlled by votes of its members.
The First Amendment does not protect yelling fire in a crowded theater. It should not protect buying our government. Let the owners of corporations speak for our property interests ourselves. When we want to assemble and associate to express ourselves better let us do so as people and as citizens, not as shares.
January 18, 2012, 12:44 pmAnon says:
Yes, it is the law of theft.
January 18, 2012, 12:45 pmAnon says:
Yes, it is the law of theft.
January 18, 2012, 12:45 pmShelbyC says:
Here’s what the OP says:
Say that Congress concludes that it’s unfair for Google to be able to speak so broadly, in a way that ordinary Americans (including ordinary Congressmen) generally can’t. Congress therefore enacts a statute banning all corporations from spending their money — and therefore banning them from speaking — in support of or opposition to any statute.
January 18, 2012, 12:46 pmAllan says:
Constitutional.
Corporations are creations of the state. They are created so that people can aggregate money and limit liability.
If states can create something, they can limit how that something operates. There might be a 10th amendment issue, but not a 1st amendment issue.
Whether the law would be prudent is another matter, but it is constitutional.
January 18, 2012, 12:49 pmDrew says:
Constitutional, because corporations are not people.
Corporations are creations of governments. If individuals want to speak, they can. If they want to form an organization and speak, they can. However, if they want to take advantage of the liability and other benefits that go along with incorporation, they must be subject to the regulations that go along with that, including regulations of what sort of speech their treasury funds can go toward.
I assume your hypothetical is meant to press intuitions, because most of us who hold this view also think that what Google is doing is good. In this case, I think it is; I like that Google is doing this. However, Google could just as easily use their massive influence, gained not because of the power of their ideas, but because they make good products, to make a statement in support of SOPA, if they happened to agree with it. Google is not constitutionally entitled to such influence, one way or another.
All that said, I would absolutely oppose the hypothetical legislation that you suggest.
January 18, 2012, 12:55 pmneurodoc says:
What gives you confidence that we currently have the best (or if you prefer, the worst) Congress money can buy? Are there instances when spending less buys one better and spending more buys one worse, save perhaps where representative government is concerned?
January 18, 2012, 12:58 pmMark Carrara says:
I have never believed that a corporation, being a creation of the government, has ANY rights. I would gladly stop Google from protesting SOPA if that means no corporation could hide behind the right to freedom of speech.
My vote is option 1
January 18, 2012, 12:58 pmDavid M. Nieporent says:
I would note that this was the view of the Citizens United dissenters. None of them took the left-blogosphere’s view that ‘corporations don’t have rights.’
January 18, 2012, 1:01 pmPersonFromPorlock says:
So, at worst Google creates “Google Opinions” and makes it its home page. What does Congress do then? Also, free speech issues aside, isn’t there some sort of petitioning for a redress of grievances going on here?
January 18, 2012, 1:03 pmShelbyC says:
Corporations are not creations of government. They are collections of people, given a particular legal status by the government.
January 18, 2012, 1:04 pmPersonFromPorlock says:
So, at worst Google creates “Google Opinions” and makes it its home page. What does Congress do then that doesn’t also impact the editorial page of the New York Times? Also, free speech issues aside, isn’t there some sort of petitioning for a redress of grievances going on here?
January 18, 2012, 1:05 pmERH says:
Well I think you’re hypo is based on a false premise because no matter what SCOTUS says money is not speech, but leaving that aside.
Perfectly constitutional, as entities that are essentially creations of the state, their speech is subject to greater regulation than that individuals or groups whose existence is not based on state’s recognition.
January 18, 2012, 1:11 pmERH says:
Well I think you’re hypo is based on a false premise because no matter what SCOTUS says money is not speech, but leaving that aside.
Perfectly constitutional, as entities that are essentially creations of the state, their speech is subject to greater regulation than that individuals or groups whose existence is not based on state’s recognition.
January 18, 2012, 1:12 pmneurodoc says:
Would you change any of what you have just said if for “corporations” we substituted “non-profit corporations and/or entities”? How about if wesubstituted “unions,” which are afterall people acting collectively rather than individually – no matter how the law treats them?
January 18, 2012, 1:12 pmERH says:
Well I think you’re hypo is based on a false premise because no matter what SCOTUS says money is not speech, but leaving that aside.
Perfectly constitutional, as entities that are essentially creations of the state, their speech is subject to greater regulation than that individuals or groups whose existence is not based on state’s recognition.
(BTW) the comment feature appears to be fubar.
January 18, 2012, 1:19 pmPersonFromPorlock says:
So, at worst Google creates “Google Opinions” and makes it its home page. What does Congress do then that doesn’t also impact the editorial page of the New York Times? Also, free speech issues aside, isn’t there some sort of petitioning for a redress of grievances going on here?
January 18, 2012, 1:21 pmMike says:
Unconstitutional, yes, a company as a legal person should be protected by the first amendment. Their rights to make statements and speak should not be curtailed.
However, I reject the idea that donating money is necessarily ‘speech’. As long as they apply equally to all candidates and parties I think that laws regulating the funding of campaigns is perfectly valid. If anything allowing money to remain a central defining factor in elections undermines the 1st amendment, when those who have the most money can speak more and drown out those with less.
January 18, 2012, 1:37 pmVoice of Reason says:
That just sounds like a poorly worded version of the anti-Citizens United argument to me. Citizens United is a bad decision because it holds that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” This is among the most ill-informed determinations the Court has made in the last 100 years.
January 18, 2012, 1:41 pmAirish says:
Are Google, Wikipedia, Reddit, etc. spending any money to blackout their sites or otherwise publicize their views?
[EV says: How can Google do anything without spending money? Google only does things through employees (or independent contractors), who get paid for doing anything that Google tells them to do.]
January 18, 2012, 1:44 pmVoice of Reason says:
This seems like a straw man argument. Exactly who believes that corporations have no First Amendment rights? Left-leaning legal scholars? Or faceless and uninformed DailyKos bloggers?
The problem with Citizens United is it’s holding: “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” This is among the most ill-informed conclusions the Court has reached in the last 100 years, and over the last few weeks, Stephen Colbert has been making a masterful, absolutely mockery of the Court’s conclusion.
January 18, 2012, 1:48 pmVoice of Reason says:
This seems like a straw man argument. Exactly who believes that corporations have no First Amendment rights? Left-leaning legal scholars? Or faceless and uninformed DailyKos bloggers?
The problem with Citizens United is it’s holding: “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” This is among the most ill-informed conclusions the Court has reached in the last 100 years, and over the last few weeks, Stephen Colbert has been making a masterful, absolutely mockery of the Court’s determination on this point.
January 18, 2012, 1:50 pmRandolph says:
(1)
Google employees and owners are free to use their wages/dividends to push whatever political agenda they want with their personal names attached to that speech. There is no value added by allowing them to hide behind the corporate veil to avoid standing behind their arguments.
Free speech is the right of a person to stand in the public square and speak their mind. The cost is that if you say something stupid people can judge you for it. Corporate speech is a way to push an agenda without attaching your personal reputation to the argument. No individual is saddles with the arguments made by “Google” going forward, and is therefore not free and open speech, but rather anonymous propaganda with no accountability for its intellectual honesty.
I agree that SOPA is a bad law and hope it fails, but this Google campaign is not protected free speech.
January 18, 2012, 2:05 pmAJK says:
What if was signed by “Publius”?
January 18, 2012, 2:10 pmBob from Ohio says:
Wrong.
If I have $5 to spend, how many TV ads can I buy? What if I have $5 million?
Money buys you a bigger bullhorn so your speech reaches more people and has more impact.
January 18, 2012, 2:13 pmBob from Ohio says:
Mark Field on this thread, for one.
January 18, 2012, 2:16 pmBob from Ohio says:
The New York Times has unsigned editorials every day. No different than what Google did.
January 18, 2012, 2:19 pmGuest12345 says:
Google opposes it because it would impact their profits. Almost exactly as large industrial concerns oppose environmental regulations.
January 18, 2012, 2:19 pmLuc says:
Minor point of order:
There is a possible distinction to be drawn between corporate advocacy of a particular candidate, and advocacy on a particular issue or bill.
January 18, 2012, 2:21 pmBrandon Berg says:
4. Unconstitutional, because the people who opposed Citizen’s United agree with Google’s speech.
January 18, 2012, 2:21 pmBretzky says:
Yes, the First Amendment doesn’t mention personhood as a requirement. But is that necessarily required to make it only apply to natural persons?
I am certainly not an expert on the history of corporations, but using what little I learned in Business Orgs, wasn’t the view of corporations at the time the Bill of Rights was written that they are creatures of the state with no rights independent of what the state grants them?
In which case, using an originalist interpretation of the Constitution, wouldn’t the First Amendment have to explicitly include them in order for it to apply to them? Therefore, the meaning of the exclusion of personhood from the First Amendment isn’t intended to mean that it applies to all persons, natural or otherwise; it instead might simply mean that the Framers didn’t think it necessary to so limit it because the idea that the First Amendment would apply to corporations just wouldn’t have been in their realm of thought or would have seemed strange to them.
January 18, 2012, 2:24 pmSyd Henderson says:
I’d argue that Wikipedia and Google are protected specifically by freedom of the press, especially since they are publishing their protests on their own web pages.
January 18, 2012, 2:26 pmG.W. Schulz says:
Would the law apply to trucking companies that display political messages on the rear of their trailers (I commonly see anti-abortion slogans, for example, while travelling across the Midwest)? No opinion here one way or the other. Just thinking out loud about the unanticipated consequences such a law could have elsewhere. I don’t have access to a fleet of trucks that can be converted to mobile billboards criss-crossing the country. I’m also a captive audience if stuck behind the truck. On the other hand, I’m not utilizing the truck’s services the way I am by visiting Google, and obviously Google’s visibility is much more significant than even the largest trucking company.
January 18, 2012, 2:29 pmHugh59 says:
How about this, limitations on corporate speech are constitutional if the speech is pro conservative or pro Republican; limitations on corporate speech are unconstitutional if the speech is pro liberal or pro Democrat. Afterall, the FEC and the courts refused to treat Michael Moore’s film Fahrenheit 911 as speech covered by McCain Feingold whereas Hillary the Movie was covered.
January 18, 2012, 2:39 pmJohn Brewer says:
Personally, I think there is a distinction between supporting a candidate who is running for office and taking a public stand on an issue. In my opinion, legal entities are not persons in the same sense as a human being. SCOTUS has recognized the right to limit speech under appropriate circumstances. The same logic can be applied to legal entities. I think Justice Kennedy’s opinion was overly broad in opening the door for legal entities without the possiblity of rational regulation.
January 18, 2012, 2:41 pmJesse-Az says:
You do know that campaigns can not work in conjunction with PACs right? If they are caught doing so, it is a campaign violation. You can see this in the Mass. Senator race right now where both candidates asked their PACs to stop putting out ads, but the PACs are not listening. They are independent entities.
Likewise, why are elections so sacrosanct but political costs associated with voicing opinions on legislation not? Isn’t one of the main concerns about lobbyists that they pay for legislation? Corruption doesn’t end on the campaign trail, so if you are for regulations on campaigns you should be equally for regulations on all political activity including legislation. Therefore this is the same spending of money on political voice as PACs are for elections. There are even PACs that are formed to voice opinions on legislation! They are not solely for campaigns.
January 18, 2012, 2:51 pmJesse-Az says:
I see you are not familiar with the Professor’s argument that press represents speech through technology and not press as a corporate entity.
January 18, 2012, 2:54 pmSarcastro says:
Why wrestle with legal issues when you can proclaim victimhood on the internet?!
January 18, 2012, 3:00 pmJesse-Az says:
The 1st amendment is a limitation on the power of Government. Are you arguing that states do not have to incorporate the 1st amendment? The only actor in the 1st amendment is Congress.
January 18, 2012, 3:02 pmSarcastro says:
So money is like a speech-to-listener catalyst! Not sure if that makes it speech, though. Unless you want to assume a catalytic converter IS carbon monoxide.
January 18, 2012, 3:07 pmRobert says:
It looks like we have two separate issues being blurred together here.
In the Google example, it is completely clear which entity is originating the speech. In this case, it would seem to be analogous to a freedom-of-the-press issue.
In the Citizens United case, it’s more of a matter of providing unlabeled money to others that can be used to do things without public identification of the originator.
If Google started accepting compensation to publicly provide access to their bullhorn to unidentified parties, it would be a different situation entirely. We’re not talking about publicly broadcasting third party opinions for compensation.
Consider a simpler case. Some single person becomes wealthy enough to directly purchase Google outright. He then does the necessary steps to retain all Google’s properties personally and discards the Google corporate entity. He then chooses to use his own personal property to air his personal opinion on SOPA, or whether pennies should be outlawed, or whatever. What then?
Note: This is not a corporate ownership question at all. Instead it helps to clarify the reasoning for the answers to the original topic question.
January 18, 2012, 3:09 pmSeth Richmond says:
I think corporations should considered be people for First Amendment purposes (although I don’t think I’ve thought through all the possible legal implications of this), so maybe that disqualifies me from answering.
But anyway, in the case of google I’m more interested in the place of the speech rather than the rights of the speaker.
Do we view the internet more of like a government-managed public commons where the government has a duty to ensure everyone gets an voice (subject to reasonable time & place)? Or is the internet more of a private thing where the government cannot intervene at all?
January 18, 2012, 3:16 pmLaura(southernxyl) says:
Then how does Google differ from a newspaper with an editorial page? Are we revisiting freedom of the press here?
January 18, 2012, 3:16 pmKirk Parker says:
Anthony,
Pretty much everything you say @ 12:34pm is off the mark. “Press” in the late 1700′s did not refer to the “institutional press”–among other reasons such hardly existed at the time. Nor does the First refer to corporations. Rather, it’s guaranteeing the right of every one of us to speak and to publish without prior restraint; including–as Citizens Unites rightly holds–those of us who choose to band together to speak and/or publish.
January 18, 2012, 3:23 pmJon Shields says:
I believe that Corporations do have free speech rights. But that doesn’t mean they cannot be subject to any restrictions that a person speaking out can’t be subject to. Corporations are provided legal advantages by the state, and it seems silly to hold that Congress can’t condition any such advantages on reasonable regulations.
In particular, while the law in Citizens United is often characterized as a speech ban, it is more a restriction on the source of funds for ads. The majority quickly dismissed the alternative of a PAC as a way to save the statute. But just because the particular PAC involved had burdensome regulations (or was structured in a certain way) shouldn’t mean that any form of segregated fund (formed from the contributions of willing participants) should not save such a statute. I think such a source restriction, if structured properly, would be a reasonable regulation on political speech (given the advantages that corporations are given by the state).
More generally, I think the Court’s dismissal of the interest of corruption (or the appearance of corruption) was laughable. Despite 100,000 pages of material in the Congressional record to the contrary, the court’s entire holding rested on a contrary factual determination:
Seriously?
An analysis of the interest of preventing corruption (in reality, not in an imaginary world) should be a key factor in judging speech regulations on corporations. Such an analysis would likely result in a Citizens United-type regulation being upheld, and a ban on pure issue advocacy being rejected.
January 18, 2012, 3:23 pmHugh59 says:
I think the proper answer is 4, but for reasons very close to 3. People do not lose their rights when they choose to participate in some kind of collective entity. I am on the board of directors of a local theater troupe. Do we lose our rights because we are a non profit corporation? Are we subject to having theater assets seized without due process and without compensation? Can theater property be subjected to unreasonable searches?
Corporations are not “people” (unless you are talking about Chapter 5751 of the Ohio Revised Code, see Sec. 5751.01(A) where “person” is defined as including for profit and not-for-profit corporations) but the people who own them have rights.
January 18, 2012, 3:24 pmbyomtov says:
Bob from Ohio,
Money buys you a bigger bullhorn so your speech reaches more people and has more impact.
So money amplifies speech, but that doesn’t make it speech. Might there be a reason to limit how much one’s speech can be amplified?
January 18, 2012, 3:26 pmJon Shields says:
In general, I also believe the Court’s doctrine on amounts of speech to be utterly in conflict with reality.
The Citizen’s United majority view is that more speech is always better, and that such speech will not “drown out” those with less money (or at least that such “drowning out” does not create a basis for regulation).
That is non-sensical. When advertising is bought and sold according to supply and demand, those with near-unlimited resources can drive up the price of such advertising to levels that the vast majority of corporations (let alone people) would not be able to pay.
According to the court, that would somehow be OK, because while this may result in most potential speakers being unable to speak, it would be the “free market” creating this outcome (not the government). But who created the “free market” system that we have, that allows the few to drown out the many? Who (based on taxing/spending/regulation) regulates the parameters and (indirectly) the disparities inherent in this “free market” system? And who in the world enshrined a laissez-faire “free market” baseline into the Constitution, for which any law that adjusts this system is Constitutionally suspect?
At least during the Lochner era, the justices admitted (albeit indirectly) that they believed their economic theories were indeed enshrined in the Constitution (and that various laws that adjusted this baseline should receive special Constitutional scrutiny). At least that view, however horribly wrong and misguided, was coherent. But what we see now that the Lochner paradigm has been repudiated (by most) is an attempt to essentially revive Lochnerism as to laws affecting speech.
But that idea seems absurd: does the Constitution really say that the only way to relieve disparities in the speech market is to relieve disparities in all other markets at the same time?
January 18, 2012, 3:38 pmEric Rasmusen says:
I’d go with (1)– the statute is constitutional. For purposes of teh Google ad, however, such a statute would be easily avoided legally. Consider a newspaper. It would be constitutional to ban unsigned editorials, as corporate speech, but banning signed (even as “anonymous”) editorials and letters to the editor would be a different matter. In those 2 cases, the corporation is merely allowing individuals to use its resources. Or, going a step further, the corporation could sell op-ed space to individuals, which is pretty much the same as political advertising by individuals. Perhaps the government could require op-ed to have a disclaimer saying that they are not the official voice of the newspaper, but that’s the limit.
Now go to Google. To get away from the ban on corporate speech, Google could allow some individual to post cheap or free ads lobbying for some position.
The argument against all this is that there is no practical difference between forbidding a corporation from using its resources to advance a political position and forbidding a corporation from allowing an individual to use its resources to lobby. There is a formal difference, though, and perhaps a practical one too. The line between allowing resource use and acting oneself does have to be drawn somewhere. Some people might draw it at allowing resources paid for at market prices (ads, or buying paper, or buying printers to use for lobbying); other people might draw it at not allowing resources to be used by one of the corporation’s employees who will be fired if he deviates from the exact script his boss gives him. (Eric Rasmusen)
January 18, 2012, 3:40 pmJoe says:
Upon contemplation, I think the question is not that great, since Google seems much more speech and press related than most corporations. Even those who don’t think corporations are people or have 1A generally might accept that in some sense Google, which distributes expressive content, is somewhat unique.
January 18, 2012, 3:43 pmButters says:
January 18, 2012, 3:43 pmEric Rasmusen says:
It’s interesting to relate this comment thread to Orin Kerr’s blogpost about comment moderation. This thread would be easy for Prof. Volokh to moderate– zero marginal cost, in fact, since I think he will be scanning it already in exactly the same way for his own purpose of trying to see what arguments people on the other side of the issue from him have. To do that, his first adn most important step is to brush aside the comments that violate his requirement that the commenter think corporatiosn don’t have first amendment rights. That gets rid of the first 10 comments or so; I didn’t check further. And as a law professor who’s graded lots of exams, he’s good at skimming a paragraph and discovering whether the writer has totally missed the point.
January 18, 2012, 3:45 pmI’d like to see all but the “A” comments– those that add more than zero substance to the discussion— deleted. I haven’t read this whole comment thread, but I would have if I wouldn’t have to wade through a lot of junk.
gallileo says:
Mark,
The constitution most certainly does protect yelling “Fire” in a crowded theater.
What it doesn’t protect is falsely yelling fire in a crowded theater.
That is an extremely important distinction.
January 18, 2012, 3:46 pmwohjr says:
I think there is a difference between for-profit and the other types of organizations, and that is (or was) to some extent acknowledged in the jurisprudence.
But I don’t even think we need to reach that– because we are conflating the rights at stake here. We are not really talking about corporate free speech, but corporate participation in the political process. I think that can be distinguished from the free speech rights we choose to give to corporations when we allow them to incorporate and enjoy limited liability. Corporations can’t vote, so why allow them entry into the political process? All the members of the corporation are as free as they ever were to participate in the process and vote.
Smooth: there is no magic number. But what does it say about the person who will govern that they needed to come up with a cool bill to do so. Seems to me that might affect one’s priorities once in office, no? Take a look a Connecticut’s experience with public funding– there is another way
January 18, 2012, 3:48 pmSome dude says:
#4
If corporations are people, than Mitt Romney is a serial killer.
January 18, 2012, 3:48 pmSome dude says:
#4
If corporations are people, then Mitt Romney is a serial killer.
January 18, 2012, 3:49 pmSome dude says:
#4
If corporations are people, than Mitt Romney is a serial killer.
January 18, 2012, 3:49 pmSome dude says:
#4
If corporations are people, then Mitt Romney is a serial killer.
January 18, 2012, 3:49 pmSome dude says:
#4
If corporations are people, then Mitt Romney is a serial killer.
January 18, 2012, 3:49 pmAnon says:
And under what logic do corporations get freedom of the press but not freedom of speech? They are in the same amendment with the same wording. Surely, if one applies to corporations then the other does as well.
January 18, 2012, 3:52 pmBob from Ohio says:
No good one.
January 18, 2012, 3:52 pmKirk Parker says:
And out come all the closet statists! Eugene, you perform a great public service with this kind of post, as we get to see how
manyfew friends free speech really has.Add for all you money-corrupts-the-process folks out there, I have a question: do you except yourselves? If you do, fine: but then that really confirms you’re just a statist (albeit a hypocritical one.)
But it’s those of you who don’t, who I really would love to hear from: please let’s have some great, articulate first-person “How My Vote Was Swayed by Expensive Ad Campaigns” accounts!
January 18, 2012, 4:06 pmbyomtov says:
I think the discussion of corporate speech proceeds from the false premise that “corporation” is a meaningful category for these purposes.
Some corporations are voluntary associations for speech purposes, others are not. It is reasonable to think that NRA members are, by and large, in agreement on the political issues the organization addresses. It is pure fantasy to assume that Exxon shareholders are in substantial agreement on matters having to do with the oil industry. It is an even greater fantasy to assume that Exxon shareholders overwhelmingly support one or the other candidate in an election.
The shareholders of a for-profit corporation are absolutely not a voluntary association formed for the purpose of advancing political causes or candidates. This is true no mater how many times the phrase “voluntary association” is bandied about.
To pretend that rules covering “corporations” can deal reasonably with these and maybe other variations is silly.
My opinion is that a “membership/advocacy” corporation is free to spend money on political activities. It is a voluntary association in a meaningful sense.
For-profit corporations can be restricted. First, there is a huge agency issue in that it’s the managers who make the decisions about spending, even though many shareholders will disagree.
There is a spectrum here of situations. I’m inclined to think lobbying and supporting legislation is OK, so long as no political contributions are involved. That can be considered narrowly targeted activity aimed at advancing the corporation’s business interests. It’s not a lot different than other business decisions we leave to the discretion of management.
At the other extreme is financial support of candidates. That’s very broad. A candidate is not a bill, or an issue. A candidate is a whole bundle of things, and it’s fair to say that here management must respect the certain diversity of opinion among shareholders. Does anyone think that either Obama or McCain got less than a third, say, of the votes of Exxon or Microsoft shareholders in 2008? Remember that shareholders are a huge group, and include many who hold the shares indirectly through mutual funds or retirement plans. They also include institutions such as universities and foundations. I simply think it is unreasonable to allow corporate managers – it’s them, not “corporations,” who make the decision- to support candidates with all those people’s money.
And then there is the issue of amplification and legal privilege. As I said above, money amplifies speech. We have a legal system that grants corporations privileges such as immortality and limited liability. Those privileges are precisely what enable corporations to amass huge amounts of money. It strikes me that if we enable, through political means, organizations to control the quatity of resources that corporations control it is entirely reasonable to place some rules on how those resources can be used.
That seems clear as a matter of logic. Would it be unconstitutional to retract these privileges, or never to have allowed them? No. There is no constitutional right of business to use the corporate form. So how can it be unconstitutional to recognize that corporate privileges have some undesirable consequences, and legislate against them?
So to give a layman’s answer to Orin, I’d say that laws restricting corporations’ First Amendment rights can be constitutional, but should be very carefully drawn with respect to types of corporations, types of activity, and amounts of money involved.
January 18, 2012, 4:17 pmneurodoc says:
Surely, you are not suggesting that the New York Times, which speaks to us mere mortals from its Olympian heights, is like any other human institution.
January 18, 2012, 4:20 pmneurodoc says:
Surely, you are not suggesting that the New York Times, which speaks to us mere mortals from its Olympian heights, is like any other human institution, especially in terms of possible fallibility.
January 18, 2012, 4:21 pmSarcastro says:
Because I am always conscious of everything that affects my thinking!
It is amusing how many people pay for ad time, when it clearly has no effect on anyone!
Disagreeing with Mr. Parker makes you a very bad person.
January 18, 2012, 4:22 pmRandolph says:
Anonymous speech does share many of the problems of corporate speech, but it’s entirely the same. As long as a work is attributed as “anonymous” it can be attributed to the reputation of anonymous speech generally. And there is at least a theoretically a speaker that actually holds the views expressed that is expending personal resources to advance the speech.
Corporate speech goes even further because there isn’t necessarily a single real person who agrees with the speech. It’s more like sock-puppetry than anonymity. It’s one thing if I advance an anonymous argument on behalf of a real client, it’s something entirely different if I make up a non-existent client and advance an argument supposedly on their behalf.
If it’s speech, there must somewhere be a speaker. A corporation is not a speaker
IOW we have to deal with the problems with anonymous speech because it’s protected, “corporate speech” has similar (although notably worse) problems, but we don’t have to put up with it because it is not speech, and not protected.
January 18, 2012, 4:23 pmAirish says:
EV, I’m not denying that there aren’t opportunity costs, but it isn’t inconceivable that supportive salaried staff performed the drafting and requisite coding outside of ordinarily chargeable work hours. Sergey Brin or Larry Page could have done it themselves.
January 18, 2012, 4:30 pmuh_clem says:
I have absolutely no idea what you mean by the “closet statist” accusation, but as one of the posters who is concerned about how money corrupts the process I can answer your other question.
Of course I’m swayed by slick advertizing campaigns. I’d like to think that I’m not, but like every other human I’m susceptible to slick advertizing. Everybody is. The thing is, the really slick stuff (i.e. the stuff that actually works) happens transparently and I’m unaware of it’s effect on me.
January 18, 2012, 4:36 pmAnon says:
Incorrect. A number of professors have taken the position that Google’s search engine results are speech. Google has taken the position since as early as 2006 (see first link below). Professor Eric Goldman has a number of blog posts on the topic. Some representative posts below (one of which involves a discussion of the topic at a conference):
http://blog.ericgoldman.org/archives/2006/05/kinderstart_v_g.htm
http://blog.ericgoldman.org/archives/2010/09/texas_ag_invest.htm
http://blog.ericgoldman.org/archives/2011/06/george_mason_la.htm
Danny Sullivan also publish an excellent satire of the 2010 NYT’s editorial about Search Neutrality that addresses the fact that search engine results are speech http://searchengineland.com/regulating-the-new-york-times-46521
While not directly addressing the First Amendment question, Professor Goldberg published a paper in 2006 which goes into some detail as to why search engine results in fact represent editorial choices:
January 18, 2012, 4:54 pmhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=893892
David M. Nieporent says:
Not sure why that wasn’t in brackets. Seemed accurate rather than sarcastic.
January 18, 2012, 4:56 pmAnthony says:
Referring to ‘the press’ implies that the press is an entity (whether or not it is a corporation) which can sensibly be referred to in a manner independent of whether it’s a person. I actually agree with the outcome of Citizen’s United, I just disagree with the logic on which it was decided. Ignoring the ‘money is speech’ side issue (it isn’t, but preventing someone from spending the money required to speak is equivalent to preventing them from speaking), if we take corporate speech as being derived from the members of the corporation as opposed to being a right of the corporation itself, we hit a couple of issues:
1) Anonymity. It’s not always easy to tell who’s actually behind a corporation. Since anonymous speech has a fair amount of protection, this isn’t a big restriction, but it does have relevance.
2) Accuracy of Attribution. Depending on the nature of the corporate governance rules, a statement made by the corporation may not actually be all that representative of the opinions of the shareholders.
Neither of these seems to be much of an issue with Citizen’s United, it’s been around for long enough to have its own recognizable corporate personality, and it’s usually a safe bet that anyone voluntarily giving money to a political corporation with a known political bent is choosing to support the views of that corporation.
January 18, 2012, 5:02 pmSeaDrive says:
I think both Google and Citizen’s United should be able to make themselves heard, but I also think that transparency is important in political speech.
And I also think the Conspiracy should have straight-forward post on the merits of SOPA etc so I can contribute a ton of clever comments without being off-topic.
January 18, 2012, 5:06 pmBen P says:
That’s an interesting question.
As I said above, I don’t really think corporate personhood bears on this question.
But that said, Mark’s analysis above raises an interesting point.
Citizens united says that corporations are made up of people, and people don’t lose their free speech rights merely because they are acting in concert.
But exactly what “people” is GE made up of? the executives? the board of directors? the shareholders? What about the shareholders that are themselves corporations? What about shareholders that are foreign citizens? What if the majority, or 99% of the shareholders are foreign citizens?
It’s not necessarily invalid to say that GE is not made up of people, but is made up of shares, and whether anyone can command the corporation to “speak” depends on ownership of those shares.
Nonprofits and incorporated associations such as unions, however, often have different structures, the voting membership is not directly controlled by ownership of shares.
Some may do it by a democratic vote of all members, but some choose their leadership solely by a vote of the existing leadership.
January 18, 2012, 5:14 pmMJW says:
The New York Times is a publicly-traded corporation. At one time, it could even be called a for-profit operation.
January 18, 2012, 5:21 pmButters says:
There isn’t necessarily a single person in Congress who agrees with any one act of Congress, but we still call it all law. We might even say that “Congress has spoken.” Attempting to define words published under the name of a corporation as not-speech, merely because we cannot identify a single natural person as the source of the words, strikes me as singularly arbitrary and unpersuasive. In that sense, corporate speech is just like anonymous speech. For all we know, an anonymous political diatribe on the Internet could be a collaborative effort of dozens of people, all of whom have compromised in some way in order to reach a final agreement on what to say, and none of whom may agree completely with every aspect of the final product. (In fact, I’m fairly confident that a great deal of what you see and hear from politicians, particularly during campaigns, fits this description — albeit most of it probably hasn’t been vetted by dozens of people.) It’s still speech.
January 18, 2012, 5:25 pmDan the Man says:
Even if it is speech, that’s quite irrelevent to whether or not the 1st amendment prevents anti-trust being applied to Google. See Associated Press v. United States.
January 18, 2012, 5:31 pmKirk Parker says:
Sarcastro,
Please, I’m not asking for every instance, but how about just one?
January 18, 2012, 5:37 pmKirk Parker says:
And also: disagreeing with me doesn’t make one a statist, but wanting to give the government more power of who’s allowed to speak certainly does, or so I would have thought..
January 18, 2012, 5:39 pmbyomtov says:
The NYT is a media corporation. It publishes news and opinion, which are read by those who choose to read it, in the hope, at least, of making a profit. It is clearly identified as the publisher of whay appears in the paper.
If Exxon wants to buy a radio station, or a newspaper, as a business operation, let it. That’s a far cry from handing millions to a super-PAC to flood TV with ads during elections.
January 18, 2012, 5:44 pmrumpelstiltskin says:
The “Soylent Green approach” would probably mean the end of the corporate veil, wouldn’t it? Why would anyone buy stocks again, if they could be liable for everything the corporation does?
January 18, 2012, 5:46 pmStephen Lathrop says:
Agree with that.
Something that might get overlooked in Professor Volokh’s framing is that Google is responding, and making itself a corporate party to a debate, because other corporations are dancing the Congress like so many marionettes—and against Google’s corporate interests. The entire scope, tenor, and context of congressional debate would change if participation were restricted to natural persons. In that changed context, any implication of unfairness in restricting Google would diminish notably, or maybe go away altogether.
January 18, 2012, 5:46 pmAnthony says:
I don’t think the dispute is over whether it’s speech, but whether it’s speech that is protected by the 1A.
January 18, 2012, 5:47 pmKirk Parker says:
Anthony,
You continue to miss the point: as a matter of historical fact, the meaning of the phrase “the press” as a metonymy for “a company in the business of publishing” simply didn’t yet exist in 1780-1790, so the Framers couldn’t have meant what you claim.
Instead, at the time, “freedom of the press” meant simply “freedom to publish printed material” in exactly the same way as “freedom of speech” is a close synonym to “freedom to speak”.
January 18, 2012, 5:52 pmSarcastro says:
[I do not know of one I can point to. But I don't think this shows that ad buys don't affect the political process, my putative hypocritical statism aside.
As for ads that I realize have affected me is not a useful data point:
1. The aforementioned subconscious effects.
2. I follow politics as a hobby, so I make up my mind quite before the ad buys begin. Lots of people don't.
3. My state is DC - not many ads there to begin with.
Additionally, there is evidence that political ads to sway elections:
January 18, 2012, 5:55 pm4. Ads have been proven generally effective in swaying public opinion - why not in the case of a political candidate?
5. Politicians clearly think they work - they spend hundreds of millions of dollars on them.]
Kirk Parker says:
uh_clem,
Surely you see the trouble with that argument?
January 18, 2012, 5:59 pmSarcastro says:
[I'm with Justice White on this one - I don't think money is speech.
But the point is that contemptuously calling everyone to your left on this issue a statist rather robs that term of force, and makes you sound rather petulant to boot.]
January 18, 2012, 6:00 pmButters says:
If you go back and read Randolph’s prior comment, to which I was responding, it looks very much to me as if he was in fact saying that corporate speech isn’t speech at all.
January 18, 2012, 6:03 pmRandolph says:
Sure, but you’re using “spoken” as a metaphor. “Congress” didn’t actually do any speaking, it’s just a way to summarize what happened by analogizing it to speech.
I’m not suggesting some kind of “deeply held belief” test, the fact that a real person is attributing the words to themselves is fine.
A corporation is a legal fiction allowed for practical reasons. Restricting what can be done with corporate money (and as EV rightly points out, all a corporation can really “do” is spend money) doesn’t limit the ability of any actual person to speak, therefore it is not a restriction on free speech. It’s a restriction on what can be done with money allocated to corporation. If you don’t what to deal with those restrictions don’t put your money in a corporation and do with out the benefits of the corporate form.
The personhood analogy for a corporation is useful to an extent, but when people start thinking that a corporation can actually “speak” within the meaning of the first amendment, that analogy is no longer useful.
January 18, 2012, 6:03 pmKirk Parker says:
Sarc, re you and Justice White–isn’t Eugene’s hypo about actual speech/press, not just about money?
January 18, 2012, 6:05 pmAnon says:
The AP case you cite didn’t have anything to do with speech, though. AP made a novel claim that the first amendment guaranty of freedom of the press meant that the US government couldn’t enforce the antitrust laws against a cartel of publishers. The Supreme court shot that down:
Of course, the First Amendment does not fully insulate an actor engaged in speaking from the consequences under antitrust law of its actions. But it does impose a substantial barrier on any attempt by the government to prohibiting or mandating speech by a party.
January 18, 2012, 6:15 pmChris Green says:
What is the difference between a company’s board of directors (which are supposed to represent the desires of the company’s owners) telling the CEO to post a political viewpoint on the company website and the company owners themselves telling a CEO to post a political viewpoint on a company website, and why must they attached their names to it, since it is, after all, their website and their property. Isn’t there a more creative way to limit the power of corporations other than preventing groups of people mutually funding an economic enterprise from making a political contribution from their common pool of money? The real problem is the disconnect between shareholders and the actions of the companies they own stock in. Wouldn’t you agree?
For example, if you own stock in any mutual fund, you are probably part owner of a company doing unethical, if not illegal activities. If you knew which ones, and you cared about ethical/environmental business practices, you would probably sell the stock of the bad ones, right? What would be awesome is a solution to this problem that, in my opinion, addressed the problem at its source, and didn’t mess around with free speech rights, since you it is hard to tell if you are on a very slippery slope when you do.
January 18, 2012, 6:56 pmStephen Lathrop says:
Try recasting Professor Volokh’s question: Congress is conducting a debate about regulating the internet. Corporate entry into that debate is not permitted, and has not happened. It is a debate entirely among natural persons, concerning how they want the internet regulated, and what they want it to provide. Can anyone imagine anything like SOPA coming out of a debate structured that way?
As a company, Google would have zero reason to intervene. Its stakeholders would of course be free to participate with everyone else, and frame their arguments to favor the Google’s interests if they chose to do so. It would be a different universe, and, politically, a much better one.
January 18, 2012, 7:11 pmDan the Man says:
What I said was completely accurate. Anti-trust laws apply to Google’s actions (even if the actions are speech) just like any other corporation. The case you cited says as much. So what exactly are trying so hard to disagree with here?
January 18, 2012, 7:14 pmNickM says:
Please explain how you would drive up the cost of an opposing candidate’s direct mail.
Nick
January 18, 2012, 7:23 pmHm. says:
Haven’t read through 127 comments, so forgive me if this is old news. Those of us who aren’t far-left “progressives” don’t claim that corporations doesn’t have First Amendment rights. We claim that money does not equal speech, therefore Congress can limit the amount of money is spent in political campaigns. The difference is pretty clear.
January 18, 2012, 7:23 pmSeaDrive says:
Of course, there would be endless litigation about what constitutes “speaking in support.” A corporation could send letters to business associates explaining how prices would change depending on changes in the law. It could be practical and appropriate. It could be pure politics.
January 18, 2012, 7:45 pmwhit says:
imo, the framing is wrong
asking whether a corporation has free speech evades the issue
imo, the issue is – does the govt.(or should it) have the authority to limit , iow censor, speech because it comes from a corporation
iow, if the speech wouldn’t be subject to govt action (like true threats and other free speech exceptions) if coming from an individual, then the fact that it comes from a corporation should make no difference in govt. authority/power
this makes sense to me with the understanding that the whole point of the bill of rights is to limit govt. power not to “grant” rights to certain entities.
the right to free speech means the govt. is limited in restricting speech. that the speech comes from a corporationor an individual should nt matter
January 18, 2012, 7:51 pmMark Field says:
Frankly, I don’t see questions like this arising. Suppose a world in which there never were any corporate “rights” under the Constitution. All business entities had statutory rights and nothing else.
In that world, the choice is not between speech and no speech, it’s between unregulated speech and regulated speech. Most of the examples in this thread are very likely to continue in my hypothetical world because legislatures would allow for corporate speech but regulate it in certain (probably inadequate) ways. The only difference is that when that regulation did occur, the courts would not impose any higher standard than the statute.
So your question seems to me to presuppose that corporations couldn’t speak at all and would look for dodges. My original comment may have contributed to that because I had constitutional rights in mind when I suggested that an individual could speak.
Now let me answer your question based on the assumption that the CEO wants to assert a constitutional right to free speech. My view is this: corporate subterfuges can’t create rights which don’t exist. If a corporation wants to donate money to an individual — and donate means no conditions whatsoever — and that individual decides to use the money to advance that corporation’s interests, that’s free speech. But if there were such a corporate order, I (if I were on the Court) would treat the actions in compliance with that order as subject to statute not the Constitution.
Of course, my hypothetical world would raise lots of new issues at the margin, and I haven’t even remotely tried to think through all the various permutations. I expect these to be resolved by the legal system in the usual way.
I also agree with this.
January 18, 2012, 7:59 pmWednesday Reads: After the Strike Round-up…“Vado a bordo, cazzo!” Edition « Sky Dancing says:
[...] Amendment and connecting it to the “corporations are people” decision, this is a good one: The Volokh Conspiracy » The Google Anti-Stop-Online-Piracy-Act Statement, Corporate Speech, and the… Following Citizens United, I heard many people argue that the Court was wrong because corporations [...]
January 18, 2012, 8:01 pmButters says:
Well, there are words on a page in the U.S. Code, and the courts attribute them to Congress (else they wouldn’t be law) and (mostly) take them seriously, so I’m not sure it’s as metaphorical as you seem to believe.
Leaving that aside, in the case of anonymous speech there’s no natural person attributing the words to themselves, which is why I raised the issue of anonymous speech previously. I don’t see any requirement in the First Amendment that speech be attributable to an identifiable individual, rather than a collective, in order to receive protection.
The corporate form is a convenient means by which individual people associate to engage in collective action. And let’s be honest: people choose to voluntarily associate for the purpose of collective action because it’s often far more effective (in a whole variety of contexts) than acting alone. It’s risible to say that NRA, ACLU, or AARP members, for example, could get their message out nearly as effectively if they all kept their dues and contributions and spent them individually on whatever means of communicating they managed to come up with. True, under your theory they could still do that — for whatever it’s worth — so it would be accurate to say they haven’t been banned from speaking. But it’s whistling past the graveyard to say that this wouldn’t adversely affect the ability of those real people to effectively communicate their message.
So then there’s no constitutional problem with the government censoring the speech of for-profit media corporations, because they have chosen to take advantage of the corporate form? You may object that, no, wait, media corporations are the “press” and freedom of the press is protected separately, so that’s a different argument. I think there are several problems with that argument, but I won’t repeat them right now since most of them have been rehearsed here on the VC many times. However, I would ask you to consider this hypo: suppose a for-profit corporation like Exxon or GE decides to periodically publish a magazine that opines on legislative matters that the corporation’s officers and managers believe have the potential to affect the corporation? And suppose they even believe that certain candidates for office will be better for the corporation, and they accordingly grade the candidates in the magazine. What result then? And if that’s permissible, how do you meaningfully distinguish that from buying advertising in someone else’s magazine or newspaper, or some other medium not owned by the corporation?
January 18, 2012, 8:04 pmKazinski says:
I think we have an utter failure here. You support freedom in this case because Google is on your side, so their speech is OK under strict scrutiny. But if a corporation was speaking for a statute to allow the Keystone Pipeline, or for voter ID laws, I don’t have much doubt that you would then say Corporations shouldn’t be able to spend money advocating their positions.
And why shouldn’t Google be able to campaign against the congressmen that sponsored SOPA? They are the ones ultimately responsible and should be held accountable. If it is OK for corporations to campaign against a statute, it should be OK for them to campaign against the congressman that is trying to foist the legislation on us.
I can’t think of anything more counter to “ensuring free and fair elections and reducing corruption” than protecting incumbents from criticism.
January 18, 2012, 8:12 pmMalvolio says:
Well, if it were clear, we wouldn’t be arguing about it.
Let’s say, wholly hypothetically, you wanted to make a movie criticizing a sitting Senator and air it when it would make the biggest impact, a few months before the election.
Can the government forbid you spend money making and advertising that film?
January 18, 2012, 8:13 pmwhit says:
“A corporation is a legal fiction allowed for practical reasons. Restricting what can be done with corporate money (and as EV rightly points out, all a corporation can really “do” is spend money) doesn’t limit the ability of any actual person to speak, therefore it is not a restriction on free speech.”
this is simply not true. look at the documentary in the original citizen’s united case, or a michael moore (crock)umentary, or Star Wars, etc.
those are all SPEECH, in the same way that a painting by mapplethorpe is.
but in the case of these movies/documentaries, it was a CORPROATION that produced them. no single personcould make the speech that is the star wars cantina scene, or the hilary clinton documentary. remember, it was that documentary, produced by citizen’s united and censored by govt. under campaign speech/finance laws that RESULTED in the citizens’ united case.
limiting a corporations speecH DEFINITEY limits free speech, because it can produce speech that no INDIVIDUAL ever could.
January 18, 2012, 8:23 pmKazinski says:
January 18, 2012, 8:25 pmButters says:
Money does not literally equal speech, that is true. Neither do paper, pens, computers or word processing programs, but they are all intimately wrapped up in the act of communicating, which is speech. I sincerely don’t understand how anyone can contend that regulating the spending of money to communicate ideas won’t affect the quantity and quality of ideas in the marketplace. I find it genuinely mystifying that so many people consider the money/speech distinction so clear and persuasive.
January 18, 2012, 8:28 pmRandolph says:
Sure, restrictions on how corporations can spend money might place an unreasonable burden on the rights of individuals to speak. But you have to be able to draw that line between the desire of individuals to speak and the restrictions on spending. Similarly restrictions on the sale of computers might unreasonably burden free speech rights, but that doesn’t mean that computers hold a right to free speech.
I admit that news corporations create unique problems and the line dividing a news corporation and a non-news corporation is fuzzy, but that doesn’t mean there’s not an important distinction. I imagine that’s why the framers felt that freedom of the press needed it’s own clause, under the corporate speech theory of free speech the right to freedom of the press is completely redundant.
Anyway thanks for the back and forth, it’s been helpful in solidifying some ideas on this issue.
January 18, 2012, 8:31 pmBrett Bellmore says:
Of course, money doesn’t equal speech. But regulation of money which is contingent on the content of the speech the money is paying for is regulation of speech.
You can take away megaphones, and claim you’re not regulating speech. But if you only take them away when somebody is saying something you don’t like, why should we humor your claim not to be a censor?
McCain and Feingold didn’t like what people said about then during campaigns, and so they set out to gag everybody. This was contemptible, not admirable.
January 18, 2012, 8:35 pmMark Field says:
That’s not the way the 1A is interpreted. If you’re a literalist, that language would forbid Congress from banning people from falsely shouting “Fire” in a crowded theater in DC. It would also forbid lots of other perfectly Constitutional laws.
January 18, 2012, 8:48 pmJon Shields says:
I’m not sure you can. So what? How does that affect my argument about mediums such as television advertising, or my broader point?
January 18, 2012, 9:21 pmuh_clem says:
Well, you would be wrong about that. Were an energy company to advocate for Keystone on it’s own website, I’d certainly say that speech is protected.
January 18, 2012, 9:23 pmbyomtov says:
Butters,
Two questions:
1. Why do the NRA, ACLU, and NAACP choose to organize as corporations? This is not the only choice. They do so because the corporate form confers certain privileges. It’s not quite the same thing as you and I deciding to chip in and buy an ad supporting X for Congress.
2. What do the NRA, ACLU, and NAACP have to do with GE, Exxon, and Microsoft anyway? Why do rules applicable to one group of organizations have to apply to the other?
January 18, 2012, 9:35 pmGuyIncognito says:
I vote for 4), though I’m tempted to say that the 1st Amendment is a limitation on government without concern toward what entity the government is directing its censorship.
The reason I say 4) is relatively simple. The Constitution simply does not give Congress any regulatory authority over political campaigns or speech.
Even if you completely set the 1st Amendment aside, what other provision in the Constitution could conceivably allow the Federal Government to silence speech? In my opinion, there is none.
January 18, 2012, 9:56 pmHm. says:
“Wholly hypothetically,” I would say yes, if that film is functioning as a political ad — or an ‘electioneering communication’ — and the film makers are wanting to release it 30 to 60 days before an election or party convention. The fact that, in this “hypothetical” scenario, the film makers wanted to release it “when it would make the biggest impact” doesn’t bode well for it not being an obvious electioneering communication.
January 18, 2012, 10:05 pmShelbyC says:
Money isn’t abortion either. So no problem making it illegal to spend money to get an abortion?
Or, for that matter, no problem with making it illegal to spend money to advocate the election of a pro-choice candidate? Or making it illegal to spend money to convey a message suggesting that abortion should be legal?
January 18, 2012, 10:06 pmShelbyC says:
Sure. And I bought my house partly because owning a home allows me to do certain things, like deduct mortgage interest. But that doesn’t mean we can prevent homeowners from engaging in political speech.
Why should they be treated differently? They are all collaborations of people that wish to achieve certain results. The NRA, for example, wants to improve certain things on behalf of gun owners, and they do this through a mix of non-political and political activity. People give money to them, and entrust them to spend it on non-political activity or political activity to the extent that it furthers the organization’s goals. Mobile does the same thing, except that their goal is to make money producing oil, and the shareholders provide the money.
January 18, 2012, 10:14 pmButters says:
The computer doesn’t hold the right; the buyer of the computer does. The computer is a means to an end for individuals. So is the corporation.
I actually don’t think there’s an important distinction. I’d be interested to hear one.
Actually, I don’t think the Framers were familiar with anything even vaguely like what we know as media corporations today. In fact I don’t think anything like the corporate form as we understand it today existed at the time, so I don’t think it’s possible that the freedom of the press was intended to protect the institutional press. Eugene has written about the speech/press distinction on this very blog, recently, and makes the case that freedom of the press referred, in the founding era, to the written word (regardless of the publisher), while freedom of speech referred to the spoken word. Today I believe they have been more or less collapsed into “freedom of expression,” which is of course a judicial gloss — but one with which I think I agree.
Not if Eugene is right that press referred to the written word and speech to the spoken word.
Likewise.
January 18, 2012, 10:29 pmwhit says:
the corporation distinction also allows some really arbitrary and wrongheaded distinctions
citizens united releases a film/documentary about hilary clinton near an election and the govt can ban THAT corporate speech?
but LA Times releases articles about something ahnold allegedly did decades ago near his election and that’s ok?
both are examples of corporations spending money near an election, to affect it (whether or not that was the la times intent, and imo it clearly was)…
under the previous law, the LA Times exampkle was ok. the citizens united one wasn’t. THAT is ridiculous. heck, if citizens united released the documentary in BOOK form, then the law at that time would allow the BANNING of a book. libs who LOVE to get hysterical about book burning in reference to stuff that happened decades ago are ok with it TODAY as long as the book is political?
it just makes no sense
January 18, 2012, 10:39 pmAlan Wexelblat says:
I believe that it would be constitutional to prohibit corporations from having the same full First Amendment rights as persons. That doesn’t mean they have _no_ speech rights and in particular it would require some new/re-interpretation of what is meant by the text “abridging the freedom of speech, or of the press”.
That is, the framers explicitly call out ‘the press’ separately from speech. What that means in a world where corporate speech is restricted would need to be understood and litigated. For example, corporations specifically oriented toward press-like functions (NBC, Fox News, etc) would presumably enjoy strong First Amendment protections due to the press clause.
Google (and other similar aggregators) pose an interesting challenge in this hypothetical world because they are not originators of news information and thus not in precisely the same class as a news corporation; however, they perform a key function in our society of promulgating news information. They not only popularize news stories put out by others, but they also serve to give multiple points of view. On a Google News story you can choose from a variety of sources that have something to say about that story. I believe (or I would hope) that this would be recognized as a valuable “press” function and would be accorded strong First Amendment protection.
I think the two key differences I have from your initial set of questions are (a) I think that corporations might have some First Amendment rights, but not the full/strong rights that individual persons and press entities have, and (b) entities that perform important press functions should be given strong First Amendment protection for those functions.
January 18, 2012, 10:44 pmTed S. says:
I’m not a lawyer, so I don’t get the “nuanced” views that are on display here. Let me ask about a hypothetical:
Suppose some city/state is trying to pass a law regulating the content of Happy Meals (or similar meals targeted at children sold by other fast-food chains). Local franchisees, believing this would result in reduced sales of such meals, put handwritten signs on 8.5×11 paper up on the doors to their restaurants saying, “We believe the proposed law is wrong.” The reading I’m getting from people here is that this would be illegal corporate speech.
I’m really having trouble following such an argument.
January 18, 2012, 10:45 pmButters says:
In theory. In the real world, are there any private organizations that are meaningfully involved in public life in the United States but aren’t incorporated and don’t, at minimum, enjoy special statutory protections of a similar nature? (Churches come to mind, but churches are — in theory, though often not in practice — prohibited from engaging in political speech.) All those groups chose the benefits of the corporate form long before Citizens United — I think because, at least beyond a certain very small size of organization, failing to do so puts a group at a fatal competitive disadvantage.
I pretty much agree with ShelbyC here, and I would add that you appear to have vastly greater confidence than I do in Congress’s ability to draw fine, meaningful, content-neutral distinctions in this area. In the absence of such confidence, I strongly prefer a blanket rule that requires Congress to bugger off.
January 18, 2012, 10:51 pmEric Rasmusen says:
I thought of another argument for the constitutionality of banning corporate speech: no one argues that the government (state governments, at least– probably the federal government too) has the right to ban the corporation itself. The government can certainly repeal the laws that authorize the corporate form of organization. It could also ban limited liability. I’m not sure whether it could ban companies having more than 1000 owners, or tradeable shares but I think it could do that too. And, it could impose punitive taxation on corporations.
If the government has the authority to eliminate corporations entirely, doesn’t it have the authority to regulate their speech?
January 18, 2012, 10:55 pmButters says:
But see Eugene’s explanation (his view, obviously, but one that seems well-founded) of the meaning of “freedom . . . of the press” to the Framers. It did not mean “the press” as in people who get press passes, and those who employ them; it meant, “freedom to publish and disseminate the written word,” regardless of the identity of the publisher.
January 18, 2012, 11:03 pmButters says:
Technically, this example does not fall under campaign finance regulation and would not be affected by Citizens United. CU concerns speech relating to elections. Your example concerns speech related to legislation. That kind of speech is commonly referred to as lobbying — in this case grassroots lobbying, since it is directed to the public and not to legislators. Lobbying is mostly regulated separately from campaign finance. Many states do indeed regulate grassroots lobbying, although most have some minimum expenditure threshold (hundreds to thousands of dollars) under which registration and reporting are not required. Your example almost certainly wouldn’t exceed that threshold. But if a group of franchisees got together and decided to spend a few grand to purchase a series of newspaper ads, yes, they’d probably have to register as lobbyists and report their expenditures, and failure to do so might well be a crime, although such things are typically punished by civil penalties.
With that said, if corporations don’t have First Amendment rights, then (absent some statutory protection at some level of government) there’d be no legal reason that your hypothetical city could not enact an ordinance making it a crime for the franchisees to post their signs. And we should all rest easy that our elected officials would enact such statutory protections, because it’s common knowledge that politicians are humble people who appreciate criticism. (I’m no Sarcastro, but once in a while I try.)
January 18, 2012, 11:16 pmNickM says:
Because the impossibility of freezing out your opponent from this traditional form of campaign advertising negates your hypothetical. Even if someone could hypothetically buy up all the TV advertising, that’s TV. There are plenty of other types of campaign advertising that are unaffected, and many are unaffectable.
No amount of campaign spending can keep another campaign’s message from getting out. Trying to prevent the impossible doesn’t help, and can cause other bad consequences.
Nick
January 18, 2012, 11:18 pmCon Law I Roundup - ScrollPost.com says:
[...] Cromwell does not come off looking good in all of this.Eugene Volokh asks a fair question, which is what critics of the “corporations have First Amendment rights” folks have to say about the actions of Google, et al, in vociferously protesting SOPA.Massive protest by Ethiopian [...]
January 18, 2012, 11:20 pmKazinski says:
Why can’t it buy ads too? I fail to see a meaningful first amendment difference in using a website they own as opposed to renting space on someone elses website.
January 18, 2012, 11:36 pmSean Flaim says:
I have never saw the First Amendment issue as being “Corporations are (or aren’t) people.” I see the real issue being “money = speech.”
Corporations, by nature, are self-organized groups of people pursuing a common task by pooling resources. They allow groups to collect and focus resources more intensely than individuals, and in effect, can drown out individual speech through the exploitation of these increased resources.
Similar to antitrust law, the problem is too much concentrated power vs. the remainder of society as isolated individuals. That’s the real issue to be solved.
January 18, 2012, 11:40 pmShelbyC says:
No. The government has the authority to ban driving entirely. That doesn’t mean it can ban driving to the polls for the purpose of voting for a Democrat. Same thing here.
January 18, 2012, 11:50 pmgwjd says:
Eric Rasmusen asks:
“If the government has the authority to eliminate corporations entirely, doesn’t it have the authority to regulate their speech?”
No, that doesn’t follow at all. The First Amednment says, “Congress shall make no law . . . abridging the freedom of speech.” A law “regulating corporate speech” would certainly abridge that speech. Therefore, it is a law Congress simply lacks the power to enact. The fact (if it is a fact) that Congress might abolish corporations altogether doesn’t change that in the slightest.
Look at it this way. The government can put me in jail, or even kill me — abolish me, you might say — so long as it affords me due process of law. But it doesn’t follow that the government can regulate my speech, does it?
January 18, 2012, 11:56 pmgwjd says:
Incidentally, Eric, I’m not sure that Congress, or a state legislature, is entirely free to abolish corporations ad libitum. At least as regards currently existing corporations, couldn’t one argue that their abolition would be a taking of property, which would require just compensation?
January 19, 2012, 12:00 amButters says:
Unless you intend to deprive George Soros and the Koch brothers of the right to spend as much of their own money as they want on independent expenditures — which in my view would very clearly be a First Amendment violation — it seems to me that you have it exactly backward. By allowing your “isolated individuals” to pool resources and speak collectively, entities that almost universally take the corporate form provide a means for the individuals to make their opinions heard.
January 19, 2012, 12:04 amKazinski says:
No. “Congress shall make no law … abridging the freedom of speech.” Just because Congress can prevent something one way doesn’t mean it can use any way.
That’s like saying if the police can go get a warrant they should be just be able to go do the search without one. Form and procedure matter.
January 19, 2012, 12:11 amA.B. Jor says:
James Madison was clear about this topic, with the upshot being all voices should be equal…there’s the rub with Citizens
United…it does not address how “big money talks/persuades,” with others omitted from this “free speech.” EG: Recent Montana’s Corrupt Practices Law case
National Gazette, January 23, 1792
The great object [of political parties] should be to combat the evil:
1. By establishing a political equality among all.
January 19, 2012, 12:13 amButters says:
Hear, hear! (Sorry for the delay, but I just saw this.) This is one of the reasons I was very unhappy that McCain was a candidate for POTUS — despite the fact that he graduated from my alma mater and, come to think of it, handed me my diploma. That kinda goodwill only gets you so far in my world, Senator. :)
January 19, 2012, 12:24 amJon Shields says:
Again, I’m not sure how relevant that is. I’m not talking about Congress regulating direct mail; I’m talking about Congress regulating TV ads. (See Congress’ 100,000 page record for how TV ads are particularly important in the election context.) Likewise, the fact that I could hire 5,000 people to scream my message at street corners does not change the problems it creates with TV.
January 19, 2012, 2:28 amHyphenated American says:
One piece of advice for liberals – imagine if conservatives agree with you one day and use your arguments against you.
“We claim that money does not equal speech, therefore Congress can limit the amount of money is spent in political campaigns. The difference is pretty clear.”
NYT, WashPost will be limited in how much money they can spend on dissimenating their points of view. Money is not speech, no 1st Amendment issues.
“Corporations are creations of the state.They are created so that people can aggregate money and limit liability.If states can create something, they can limit how that something operates.There might be a 10th amendment issue, but not a 1st amendment issue.Whether the law would be prudent is another matter, but it is constitutional.
“My opinion is that a “membership/advocacy” corporation is free to spend money on political activities. It is a voluntary association in a meaningful sense.
For-profit corporations can be restricted. First, there is a huge agency issue in that it’s the managers who make the decisions about spending, even though many shareholders will disagree. ”
NYT is a for-profit coporation. Therefore its free speech rights can be restricted by the federal government at will. ”
Same is true for the NUYT – iut has not inherent 1st amendment rights because it is a for-profit corporation. Ca
January 19, 2012, 3:10 amPatty Shundynide says:
One unquestioned premise: “corporations are creations of the state.” Some corporate law scholars challenge that premise, e.g. Ribstein and Mahoney.
January 19, 2012, 6:01 amAbout SOPA, Law Prof Asks: Is Corporate Political Speech Suddenly Okay With You? | Trending News says:
[...] Law School professor Eugene Volokh challenges the idea that people who [...]
January 19, 2012, 6:49 amGood morning, here are Thursday’s political law links | Political Activity Law/Political Law/Election Law says:
[...] SOPA-CU CONNECTION. Volokh. “Today, Google’s U.S. query page features an anti-Stop-Online-Piracy-Act statement from [...]
January 19, 2012, 7:42 amBrowsing Catharsis – 01.19.12 « Increasing Marginal Utility says:
[...] Google’s free speech as a corporation when it comes to SOPA. This came to my mind too recently. Advertisement GA_googleAddAttr("AdOpt", "1"); GA_googleAddAttr("Origin", "other"); GA_googleAddAttr("theme_bg", "f7f7f7"); GA_googleAddAttr("theme_border", "f2f2f2"); GA_googleAddAttr("theme_text", "242424"); GA_googleAddAttr("theme_link", "333333"); GA_googleAddAttr("theme_url", "4a630f"); GA_googleAddAttr("LangId", "1"); GA_googleAddAttr("Autotag", "basketball"); GA_googleAddAttr("Tag", "links"); GA_googleFillSlot("wpcom_sharethrough"); Share this:EmailPrintStumbleUponLike this:LikeBe the first to like this post. links ← Hayek on the Euro [...]
January 19, 2012, 8:18 amTed S. says:
Butters:
I still fail to see how my hypothetical differs from what Google did (put up a statement on its front door).
Google is also trying to influence legislation, not promote a particular candidate.
January 19, 2012, 8:50 amStephen Lathrop says:
Three ideas that underlie this debate, and that are often partly or entirely conflated, despite being in tension:
1. There are people, enough to be politically significant, who judge an idea or political candidate based on their sense that other people—particularly people like them—are in favor of the idea, or of the candidate.
2. In politics, speech about ideas and candidates is a means by which partisans can contend for the political outcomes they prefer. The right to use ideas in political contests is unlimited, and every individual is entitled to use it according to his motivation and the resources at his command.
3. The best political outcomes will be found by assessing ideas against each other. In the marketplace of ideas, it is the strength of the ideas that contends, not the strength of their backers.
Discuss.
January 19, 2012, 8:50 amMarc says:
I’m still looking for an explanation about how the CU ruling did anything other than extend corporations’ right to spend money during the 30 and 60 day run-ups to primaries and elections.
January 19, 2012, 9:24 amuh_clem says:
Did I say it can’t buy ads?
Let’s review – you accused me of being a fair-weather first amendment advocate, saying that I “support freedom in this case because Google is on your side”, and I merely replied that if another company did the exact same thing with an issue I oppose, I’d support their freedom of expression. Now, you want to move the goalposts by changing the hypo.
But to answer your question, yes they should be able to buy ads, although I’m not ready to say that they should be able to buy ads without any limitation whatsoever.
January 19, 2012, 9:25 amInconsistency in Some SOPA Opposition | Shall Not Be Questioned says:
[...] Eugene Volokh notes the hefty amount of corporate free speech going on today, and points out that many of the SOPA opponents were derisive of the idea that corporations can have protective speech. I generally think it’s poor business practice for corporations to get involved with controversial political issues, but in the case of something like SOPA, which has little if any real grassroots support, it’s probably safe. But while I think it’s a poor idea for companies to insert themselves into politics, I believe they have a right to speak. [...]
January 19, 2012, 9:38 amDavid M. Nieporent says:
I don’t think that’s remotely apposite; AP v. U.S. referred solely to the business practices of the AP, in terms of who could be members and how they could deal with non-members. But what people are discussing with respect to Google is the content of its speech.
AP v. U.S. would be more analogous to, e.g., Google refusing to let iOS or WP7 devices display its search results.
(Note: I am not necessarily endorsing AP v. U.S.; I am simply saying that, assuming arguendo that it’s a good decision, it’s readily distinguishable.)
January 19, 2012, 10:01 amDavid M. Nieporent says:
Setting aside the circular reasoning, I would note that the bad-law-Schenck-quote is not based on the notion that “People in crowded theaters don’t have free speech rights”, as most of the blogosphere’s CU critics (including you) have argued; it’s based on the notion that if there’s a compelling government interest, the 1st amendment may be forced to give way. (And I would note, again, that this is the reasoning behind the Citizens United dissenters. No justices bought the “first amendment doesn’t apply to corporations because they’re not people” argument.)
The Schenck quote is quite useful, however — as is the also oft-quoted (by would-be censors) Terminiello dissent — for illustrating that compelling government interests often aren’t.
January 19, 2012, 10:09 amSarcastro says:
[If more money somehow made for a bigger abortion, I might be persuaded.]
January 19, 2012, 10:13 amDavid M. Nieporent says:
Not necessarily, no. The greater power does not always include the lesser. The government can eliminate all public parks; nobody would deny that. That does not mean that the government can put content-based restrictions on speech that takes place in parks.
January 19, 2012, 10:14 amSarcastro says:
[That'd be hard if those passed equal protection rational basis scrutiny.]
January 19, 2012, 10:16 amStephen Lathrop says:
From the decision:
I read that as the Court saying, corporate bribery of legislators by the use of independent expenditures is okay, including in cases where there is an obvious quid pro quo. And by the way, don’t come to us whining about all the bribery killing off faith in democracy, because that argument is off limits, because we say so.
But I invite you to defend that quote, and give it a respectable interpretation. I believe this is the sixth time I have asked Citizens United supporters to defend that quote from the majority opinion. Anyone who wants to do so now still has the opportunity to be the first to respond.
January 19, 2012, 10:28 amButters says:
Sorry, Ted, the conversation has wandered quite a bit from Eugene’s original question and, for me, the point of your hypo got lost in the shuffle. Your are correct: your hypo basically describes what Google did, albeit on a much smaller scale in the hypo. And if corporations have no First Amendment rights (an argument made by many opponents of Citizens United — and an argument with which I disagree), then, yes, government presumably could ban Google (or the McDonald’s franchisees) from doing that.
January 19, 2012, 10:36 amMark Field says:
I’ve not made that argument. They clearly do have free speech rights. They just don’t have that particular one. It makes no difference to say, as you do, that their rights “give way” in the face of a “compelling government interest”. The bottom line is the same, and your point doesn’t really change the fact that Kazinski was wrong.
This seems a poor example. If you’re dead, you don’t have speech at all. If you’re in jail, government certainly can and does regulate your speech.
No, it’s not illegal at all as far as I know. “Not protected by the 1A” /= “illegal”.
January 19, 2012, 10:40 amDan the Man says:
The plain text of the opinion in AP vs US says the case was about the content of the speech AP was restricting.
“The heart of the government’s charge was that appellants had by concerted action set up a system of By-Laws which prohibited all AP members from selling news to non-members”
If instead of prohibiting the sale of news, AP had instead, say, prohibited the sale of a database of its subscribers and readers, this wouldn’t have necessarily have violated anti-trust laws i.e. the anti-trust case was based on the particular content of speech that was being restrained.
January 19, 2012, 10:43 amDavid M. Nieporent says:
Yeah, the court is obviously not saying that “corporate bribery of legislators by the use of independent expenditures is okay.” The court is saying that independent expenditures are not bribery.
Oh, and “quid pro quos” are, in fact, illegal, and Citizens United doesn’t change that; that’s what the word “independent” in “independent expenditures” refers to.
January 19, 2012, 10:54 amDavid M. Nieporent says:
Could have fooled me.
I think it makes a big doctrinal difference to say that the existence of free speech rights depend on the identity of the speaker vs. saying that they depend on the existence of a compelling government interest regardless of the identity of the speaker.
January 19, 2012, 11:08 amButters says:
CU struck the ban on spending corporate general treasury funds to advocate for the election or defeat of candidates for federal office (but not the bans on corporate contributions to candidates [including in-kind contributions], or the ban on coordinated communications, which I view as a type of in-kind contribution in any event). That was a much broader spending restriction than the elecioneering communication ban during certain time periods, which you’re thinking of.
January 19, 2012, 11:13 ambyomtov says:
Butters,
I don’t think it’s very hard to draw a distinction between corporations that are membership organizations and those that are for-profit entities. There are all sorts of differences, not least the sources of revenue. Exxon doesn’t ask its shareholders for contributions, it sells oil. True, the non-profit may get some commercial revenue – from selling ads ina publication maybe, or items like t-shirts and baseball caps – but basically it runs off contributions. A business doesn’t.
As for Shelby’s argument, it seems to me that it’s a question of acting in the shareholders’/members interest, and what the major purpose of the organization is.
Advocacy is a major function of the non-profit groups. You don’t join the NRA unless you agree, broadly, with their views on gun rights. But you might well buy stock in Exxon without agreeing with their view on off-shore drilling. And even if you agree with those views, you might well oppose a candidate who also agrees, on other grounds.
In other words, the political activity is peripheral, and will be opposed by a substantial percentage of shareholders. For that reason I think that supporting specific candidates is outside the scope of what management should be allowed to do.
Notice that this would not prevent individual shareholders from supporting a candidate, or from forming a non-profit coproration to do so. It just says that they can’t use the company’s money.
I admit I’m influenced here by the sorry state of corporate governance. Shareholders have virtually no control over management. I’m also influenced, as I noted above, by the fact that corporations enjoy legal privileges that have the effect of enabling them to amass large sums of money. It makes sense to me that there ought to be restrictions on spending that money for political purposes.
January 19, 2012, 11:30 amButters says:
I will give you exactly one comment on this. The unreasonableness of your reading gives me no reason to think it’s worth my time to invest any more than one comment.
If you sincerely believe that spending money to run an ad — or a thousand ads — saying, “Vote for Candidate X because he’s good for the environment” or “Vote against Y because she’ll be bad for jobs” is “bribery” (or some other type of corruption justifying a First Amendment exception), then your criticism proves far too much. In that case, all independent expenditures should be banned, and the problem with the ban on corporate spending was that it was badly underinclusive.
Likewise your criticism based on the appearance of influence or access. There will always be someone seeking — and getting — access to and influence over any politician; politicians’ power guarantees that. If you could magically remove election spending from the equation, access would be granted on some other, less public grounds — family, friendship, religion, fame, willingness to have sex with the politician, whatever. In your world nothing short of imprisoning our legislators in isolation chambers during their terms of office can ever solve the problem. Good luck with that. In my world we’re at least giving everyone an opporunity to compete for access. (And getting in to make my case to the congressman does not equal corruption. If there is real corruption in individual cases, prove it and prosecute it. But don’t throw the First Amendment out with the trash.)
I won’t attempt to defend on the merits Scalia’s comment that, “the appearance of influence or access will not cause the electorate to lose faith in this democracy.” That may or may not be true. I don’t know how Scalia could know it to a certainty, but I think it’s more a rhetorical device than a statement of fact. What I would rather he’d said is that the fact that some portion of the population holds idiosyncratic views on the meanings of words like “bribery” and “corruption” does not trump the First Amendment. Enforcement of the Bill of Rights is never more important than when it pisses people off.
January 19, 2012, 11:56 amAlan Wexelblat says:
I agree with you that Eugene has made such statements in the past, which is one reason I said that I would want a new or re-interpretation of what it means to call out press freedom explicitly in the First Amendment. I’m not an Originalist nor do I think the framers ever had anything like a news aggregator in mind. However, I think we as modern Americans can recognize the value of such things in promoting free discourse and that we would therefore afford it strong First Amendment protection.
To make a concrete example, let’s hypothesize that Congress passes a law saying that Google and similar aggregators cannot include links to Al Jazeera or any other foreign publication that has been deemed to support terrorism. I would like it to be the case that we can say this is an unconstitutional law because it infringes on the First Amendment freedoms of the press, without requiring Google-the-corporation to be a person and thus have First Amendment free speech rights.
January 19, 2012, 12:15 pmJohn Howard says:
On the personhood of corporations, perhaps it’d clear things up to move beyond free speech and think of other rights…
Someone pointed out that corporations cannot vote, for one example. We could require all corporations to file a public ballot and vote in every election, in their headquarters jurisdiction. Wouldn’t that be interesting? I don’t think it’d swing the vote too much, but if they are people, they should have their vote.
Also, if they are people, should they be allowed to marry and procreate? If not, they would be the only people prohibited from marrying and procreating, and that would open the door for saying short people may not procreate, or people with some cancer gene must use modified or screened genes. It’s also possible a corporation would claim the right to provide genetic material to father or mother a human child, with a human, or even with another corporation, or with itself, providing the other human’s contribution. “PerfectMate Corporation” could synthesize complete embryos or gametes from scratch, or fix our own to make them better.
But, people shouldn’t have a right to create people from modified gametes whether they are a corporation or not. But it’s not illegal yet, so here is another area of law that would be resolved by enacting an Egg and Sperm law. If we ban creating people by any means other than joining a man and a woman’s unmodified gametes, then not only would same-sex couples not have a right to procreate, but neither would corporations. And though gay people could still marry and procreate someone of the other sex, and thus are people, corporations could not, and thus are not people.
Personhood should be defined as the living child of a man and a woman using their unmodified gametes.
January 19, 2012, 12:42 pmMark Field says:
You’re confusing 2 different issues. Corporations don’t have free speech rights in my view, and that’s what I said in the comment you linked. When I responded to you, though, I was talking about human beings in a crowded theater. They do have free speech rights, albeit not to falsely shout “Fire!”.
That would make a difference if that’s what I were arguing. My argument does not depend on the “identity of the speaker”, but on the fact that corporations don’t “speak” at all; that’s just a metaphor. Corporations have exactly the same vocal system as a rock.
January 19, 2012, 12:57 pmrilkefan says:
I’m told that almost 20% of such expenditures in 2010 House races were spent against a single Representative.
January 19, 2012, 3:02 pmDavid M. Nieporent says:
Then I misinterpreted your second statement, because it isn’t responsive to what I said. What I said was that — assuming I agree that people can’t falsely shout fire (*) — it’s not because of the status of the speaker; it’s because of the specific government interest in banning that speech, regardless of the speaker.
But most anti-CU people argue — as do you — that the speech at issue in CU can be banned because of the status of the speaker. Thus, Schenck is not parallel.
(*) Note the whole quote: falsely shouting fire in a crowded theater and causing a panic.
By that rather overliteral reading, the government can shut down the VC, since we’re not speaking (nor using a printing press) when we post here. Calling what we do “speech” is just a metaphor. You know who else doesn’t have vocal systems? Deaf-mutes. But you know what the first amendment protects? Communications, not “vocal systems.” And corporations certainly do communicate. If your claim is that corporations aren’t communicating, but rather people are, then your argument refutes itself, since in that case the first amendment does obviously protect both the speech at issue in Citizens United and the speech that EV was asking about.
January 19, 2012, 3:05 pmButters says:
This is strange. The comment counter on the front page tells me there are new comments on this thread, but no matter how many times I refresh I can’t see anything after Sarcastro’s at 10:16 this morning.
January 19, 2012, 3:23 pmSteveL says:
And outright collusion between competitors in violation of the Sherman Act is also speech.
January 19, 2012, 3:53 pmPrometheeFeu says:
Actually, it has often been brought up that search results are statement of an opinion that is protected by the First Amendment.
January 19, 2012, 4:19 pmPhil Perspective says:
People do work at corporations, but do corporations poll their workers before advocating for a position? Of course not!!! Does Massey Energy poll its employees when it lobbies against mine safety rules?
January 19, 2012, 4:22 pmPhil Perspective says:
Bingo!! And as Jim Hightower said, “I’ll believe corporations are people when they are given the death penalty” I might have paraphrased that, but that was the gist of what Hightower said.
January 19, 2012, 4:27 pmShelbyC says:
Binary. More money makes the difference between an abortion and no abortion.
January 19, 2012, 4:28 pmsilverpie says:
To toss a clod in that churn, shouldn’t it be up to the state that charters a corporation (in the case of Google, that would be Delaware) what it can do? This argument only supports a federal restriction if it incorporated in the District of Columbia.
January 19, 2012, 4:29 pmShelbyC says:
In any event, a bullhorn makes the difference between more speech and less speech. And we know they can’t outlaw bullhorns for political speech, even if they can outlaw bullhorns.
January 19, 2012, 4:32 pmShelbyC says:
The fact that it’s commercial speech would make it less protected. I don’t understand why folks think google’s search results may not be speech.
January 19, 2012, 4:42 pmMark Field says:
No, my argument is that in the case of corporations, there is no speaker.
The weird thing is, I actually anticipated this response, though not from you specifically; I just figured someone would make it.
Anyway, Congress can ban speech (literal speech, not ASL) by mutes and it won’t have any effect on the world. That issue has been decided above their pay grade.
But the real issue is communication, as you realize from the rest of your comment, and people who are mute can communicate. They can write, they can gesture, they have facial expressions. They’re people.
Corporations can’t do any of those things. In case you weren’t sure, they have the same number of hands as a rock, and the same ability to make facial expressions.
January 19, 2012, 4:50 pmTed says:
Corporate speech, political or otherwise, should be restricted in the same manner as commercial speech. All business entities are commercial in nature. Thus, any false/misleading speech should be allowed to be banned. Content-neutral restrictions on time, place, and manner need not be reviewed for strict scrutiny. (I can’t recall the appropriate standard for commercial speech).
I would argue that corporate expenditures on political speech could be regulated (but not banned entirely) if they are content neutral. Thus, Google could be prevented from spending X amount on their efforts against SOPA/PIP, and Hollywood (MPAA, et al) would be limited to X amount in their lobbying efforts to create such a shitty law. I don’t see how this poses any threat at all to First Amendment analysis.
January 19, 2012, 4:56 pmShelbyC says:
No speaker? Then how can expenditures by corporations corrupt elections?
And yet, when Congress bans expenditures by corporations, it does have an effect on the world.
So maybe you’re saying that these laws don’t really ban speech by corporations? If that’s can case, what do they ban? Could it be a non content-neutral ban on a manner of speaking by collections of people?
January 19, 2012, 5:03 pmChris Green says:
Mark, the point of my first paragraph was to illustrate the idea that it doesn’t matter if you call a corporation a ‘person’ or not. There is no substantive, constitutional difference between shareholders deciding to put a message on their company website, and a group of people that collectively own a home putting a message on their front lawn – read analogy that follows. If the people who collectively own a home, leave, hire a property manager and give him a mandate to represent their interests in political matters by putting up political signs that support laws which increase the value of the home, well then, I’ve just more or less described the corporate situation with respect to free speech. If you believe you can tell that property manager he has no right to put a political sign on his lawn (at the behest of the owners), than you believe you can tell a CEO he has no right to put up a political message on his company website.
January 19, 2012, 5:10 pmIf the owners of the hypothetical home unwittingly support a political decision they wouldn’t normally agree with because they are not paying enough attention to the hiring manager, than they need to give him a more specific mandate and pay more attention to the signs he puts up. In other words, the sin is theirs, not the house’s (the house representing the corporation in the analogy). If the situation generally discourages collective homeowners from knowing the details of their hiring managers’s actions and political support (which is true of corporations), than the situation needs to change. However, the best course of change might not be to outlaw or regulate political signs on front lawns. The best course of action might be to restructure the laws regarding collective housing agreements (in the analogy). You see where I’m getting at. I’m not saying there isn’t a problem. I’m saying that regulating political speech by shareholders (which is who a CEO ultimately represents) should not necessarily be the first solution we jump at, especially if free speech is highly valued in our culture.
ShelbyC says:
But commercial speech isn’t any speech by which the speaker expects to benefit commercially. Surly you wouldn’t suggest that if I, as an individual, say that you should vote for Joe Smith because I think that that will be good for my business, then my speech is less than fully protected?
January 19, 2012, 5:19 pmRobert says:
It is interesting to note that the text of the first amendment does not require Google to be considered as a person before it has first amendment speech rights.
While commercial speech is less protected than political speech, I do not believe that Google’s statement qualifies as (less-protected) commercial speech.
The four indicia are:
The contents do “no more than propose a commercial transaction.”
The contents may be characterized as advertisements.
The contents reference a specific product.
The disseminator is economically motivated to distribute the speech.
Fewer than four matches does not compel a finding of commercial speech. The fourth one is the only one that would match Google’s statement, and that is the weakest match of all… since at some level most people “are economically motivated” to spread ideas that they agree with, which are often ideas that have positive economic benefits to them. At the broadest interpretation, almost any commenter on healthcare reform (for example) will have to acknowledge that they have an economic motivation in the outcome.
January 19, 2012, 5:21 pmChris Green says:
Mark,
I think my previous comment was not posted because it was too long so here is a shorter version. The point I was trying to make is that it might not be relevant weather a corporation is a ‘person’ or not because it’s owners are people. An analogy – suppose a group of people collectively own a house. The leave the house and hire a property manager, and give that property manager a mandate to stick posters in the lawn in front of the house that support candidates who will build a park next to the house (which will increase it’s value). What I’ve essentially described is the corporate situation.
The biggest difference is the corporations are often owned by thousands of people who don’t pay much attention to the ethical ramifications of what a company is doing. This does not mean that the shareholders = owners don’t have free speech rights to do whatever they want with their own property (such as the company website). This means that, perhaps, our cultural values must change so that we don’t invest in/own companies that do deplorable things. We’ve more or less accomplished that kind of cultural change with respect to racism.
January 19, 2012, 5:37 pmMark Field says:
When corporations speak, it isn’t the shareholders, it’s the management. The shareholders have no say in it.
If the shareholders want to make a statement, they can do so. Putting the corporation in the middle adds nothing to the rights of any actual person.
January 19, 2012, 7:00 pmgwjd says:
This is in response to Mark Field’s post of 1/19, at 10:40 a.m.
Eric Rasmusen asked: “If the government has the authority to eliminate corporations entirely, doesn’t it have the authority to regulate their speech?”
I responded: “Look at it this way. The government can put me in jail, or even kill me — abolish me, you might say — so long as it affords me due process of law. But it doesn’t follow that the government can regulate my speech, does it?”
To this seemingly unexceptionable point, Mark responds:
“This seems a poor example. If you’re dead, you don’t have speech at all. If you’re in jail, government certainly can and does regulate your speech.”
Mark’s response simply fails to address my point. I was not arguing that dead people “have speech,” nor that the government cannot regulate the speech of prisoners (although prisoners do retain some 1st Amendment rights).
Rather, I was pointing out that, while government can kill or imprison me, that does not mean it has the power to regulate my speech generally. IOW, the greater power (to kill or imprison) does not,in this case, imply the existence of the lesser power(to regulate speech in general, including the speech of people who are not in prison). By parity of reasoning, I contend, we can reject the argument that, since the government may abolish corporations, it may also regulate the speech of corporations that it has not abolished.
I hope this clarifies things.
January 20, 2012, 12:05 amHm. says:
The problem I have with this line of reasoning is that the only reason it costs money to express political speech on a mass basis is because we never took the necessary steps to prevent it.
Speech is free. It does not have to cost millions, or billions, of dollars to run a campaign. We do not need such long campaign seasons. We do not need to have elections every single year (which covers state, local and federal elections). We do not need to have private campaign financing.
Where Citizens United went wrong is taking as an axiom that money is an unproblematic part of a democratic political system. It is simply false. The reason campaigns cost so much money is because the United States has a failure of an electoral system. These incompetencies that have not been fixed, mostly because political parties fear reform might help their opponents, are the reason why it costs exorbitant amounts of money to run for office.
Instituting public financing, free air time and Electoral College reform would go a long way in decreasing the costs of elections. Much more can and should be done, though.
But it’s completely circular to say that corporations of any kind have a right to spend unlimited amounts in electioneering simply because it costs money to speak. It wouldn’t cost money if our government and electoral system didn’t perpetuate the ever-increasing costs of campaigning.
January 20, 2012, 12:50 amDavid M. Nieporent says:
No. This is a fundamental misunderstanding of, well, the nature of the universe. Nothing is ever free. The only question is who pays.
Yes, it does have to cost millions of dollars to run a campaign. There is no way to communicate with hundreds of millions of people without it. Printing presses cost money. Ink costs money. Computers cost money. Gasoline costs money. Billboards cost money. Food costs money. Broadcasting equipment costs money. Airplanes cost money.
I’m not even sure what “steps” one would take to “prevent” “long campaign seasons.” Lock all the people who want to be president in a dungeon until a few weeks before the election? (Hey… maybe you’re onto something. Except for the “until a few weeks before the election” part.)
It doesn’t cost “exorbitant” amounts of money to run for office. As Mitch McConnell was fond of pointing out, far more money is spent advertising soap each year than on campaigns.
I don’t know what “Electoral college reform” would consist of or how it would be applicable here, but the other two would not “decrease the cost of elections.” It would simply force taxpayers and shareholders of television and radio stations to pay those costs.
Yeah, it would.
January 20, 2012, 6:43 amHow Google Destroyed American Democracy | Cato @ Liberty says:
[...] Volokh poses some pertinent questions about Google and freedom of [...]
January 20, 2012, 9:14 amMark Field says:
Ah, ok. I missed your point earlier; sorry.
January 20, 2012, 10:43 amAlpheus says:
The major flaw I see in this claim is that Google, as a corporation, also has a reputation. A reputation, I might add, that has been causing me to question whether or not I want to use the services made available by said corporation. Thus, if they would have made a public stance on SOPA that enough people disagreed with, they very well could be hurting their reputation, and hence their income.
This idea that Google is “anonymous” and has “no accountability” is completely baseless; if this is going to be the foundation for your argument that the law is unconstitutional, your argument collapses.
Besides which, if Congress has the power to ban “anonymous” speech, because it “lacks accountability”, then Congress has the power to ban Publius from publishing what is now known as the Federalist Papers, in defending the Constitution, as well as the other hordes of anonymous defenders and attackers of the Constitution–many of whom, to this day, we do not know the identities of. A dangerous precedent, indeed!
January 20, 2012, 1:35 pmAlpheus says:
I would propose that money *is* speech, because when I’m giving my money to someone, I’m saying “I think your service or product is worth this much”. Thus, the case can be made (and is made by certain economists) that so many of our regulations, that interfere with how much we can charge for goods and services, is interfering with our free speech.
In this case, when I donate $5 to a campaign, I’m saying “I want your message to be amplified this much”. So, yes, a speech amplifier can be considered speech.
January 20, 2012, 1:55 pmJon Roland says:
See my article “SOPA and PIPA unconstitutional“, in which I argue that they are unconstitutional even without the First Amendment.
January 20, 2012, 2:05 pmAlpheus says:
This is always bandied about as an example of restricting free speech. Is it really all that great an example? There are plenty of ways to punish someone falsely shouting “Fire” in a crowded theater…starting with, say, holding that individual responsible for the injuries and deaths that result from that stampede.
Besides which, why should a clear-cut example of why speech should be limited be the basis for sweeping restrictions on free speech? It seems to me that calls for restricting speech are always the result of “But someone or some organization said something I didn’t like. It needs to stop!”.
It’s interesting that in all these comments about Google, and corporations in general, not one word has been mentioned about the pro-SOPA *lobyists* hired by Disney et al, and whether it would be Constitutional for Congress to ban a corporation’s right to petition. All the arguments made for and against banning corporate speech applies in full force to banning corporate petition!
January 20, 2012, 2:30 pmAlpheus says:
Yeah, I completely agree that this is why Exxon should be forbidden from advocating for candidates in a magazine. Because an NRA member would never oppose an NRA A-rated politician on other grounds! /sarcasm
Also: Broad agreement means you agree with everything the NRA says, right?
January 20, 2012, 2:53 pmJon Roland says:
Money is not “speech”. It is “press”. Donating money is hiring the donee to publish something the donor wants published, and leaving the details to his discretion as long as it furthers their mutual purpose.
January 20, 2012, 5:11 pmJon Roland says:
The focus on the First Amendment obscures other arguments. See my article “SOPA and PIPA unconstitutional“, in which I argue that they are unconstitutional even without the First Amendment.
January 21, 2012, 3:42 pmAaron G says:
I don’t think he’s trying to make some snarky point. I think he’s legitimately trying to unpack the naysayers’ arguments.
Otherwise perfectly intelligent individuals I know who are opposed to Citizens United often greatly misunderstand the case (much like the haters of Lochner). Only a few I’ve spoken with understand it for what it is, but offer other arguments (i.e. the government interest outweighs the First Amendment interest). What Prof. Volokh seeks here is to find out a) the proportion of believers in the various arguments and b) what the substance of those arguments are. As he’s noted before, it’s possible a lot of “CU = corporations are people” type comments are just shorthand for what the decision really means (however disingenuous).
I think colorable arguments can be made against Citizens United, but none of those arguments involve a political talking point like “corporations are not people.” This is the internet. If he asked for arguments against Citizens United in general, we’d have 500 comments to the tune of “ZOMG only pplz can haz free speach!”
January 23, 2012, 12:10 pmThe ‘Farce’ of Free Speech - The NeoSexist says:
[...] such as the New York Times, NBC-Universal , Washington Post; corporations all. Only some corporations can be trusted with this much power. Only the right-minded and fair institutions of the media [...]
February 3, 2012, 4:03 pm