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Applying the First Amendment to Corporations: Well established and a good idea

By Delirium in Op-Ed
Mon Jan 25, 2010 at 04:12:50 AM EST
Tags: supreme court, free speech, civil liberties (all tags)

There's been much hang-wringing about the recent Citizens United U.S. Supreme Court decision that struck down a ban on direct electioneering by corporations in a window before elections. Much of the buzz, especially from left-leaning corners, sees it as a revolutionary advance in corporate personhood, imbuing corporations with the free-speech rights of individuals.

While I agree there are quite negative consequences of the case, and I'm wary of the influence of money in politics overall, I can't really see how this is as revolutionary a decision as people seem to be claiming. In particular, the basic principle that the First Amendment restricts the ability of the government to regulate any speech or publications, including that by corporations or any other entity, has been well established for decades, and indeed almost never questioned until now. Nor, if you are a civil libertarian, would it be desirable to campaign for a wholesale reversal of that position.

Lots of important precedents rely on the First Amendment as applied to corporations

Many opponents of the decision argue that the First Amendment provides no protection whatsoever to corporations, but is instead a protection of an individual right: the right of individuals (and unincorporated groups of individuals) to speak and write without government censorship. Since corporations are not people, this guarantee does not apply. Thus, the argument goes, the government may regulate their activities, including their publications.

But if this principle were adopted, a lot of important free-speech precedents would be in jeopardy:

New York Times Co. v. Sullivan (1964) held that the First Amendment protects the right of the New York Times Company, a for-profit corporation, to publish material critical of public figures, without fearing libel sanctions unless its statements were both false and made with "actual malice".

New York Times Co. v. United States (1971) held that the First Amendment gave the New York Times Company, a for-profit corporation, a right to publish the leaked Pentagon Papers.

Hustler Magazine v. Falwell (1988) held that the First Amendment protected the right of Hustler magazine, a for-profit corporation, to publish a satire ridiculing Jerry Falwell without being liable for "emotional distress" damages.

There are many more important precedents, involving commercial book publishers, magazine publishers, film-production and -distribution companies, and more. Unless all these precedents are to be overturned, or some alternate way of regrounding them is proposed, I can't see the argument that the First Amendment does not apply to corporations at all as a particularly serious or desirable one.

Do we really want a result holding that the government may engage in unlimited censorship of anything published by a corporation, including, for example, book publishers, newspaper and magazine publishers, film distributors, etc.? That would be a stunning reversal of the past century of free-speech jurisprudence.

Interestingly, corporate personhood has actually not much figured in any of these precedents. The First Amendment by its text doesn't protect a right of people, but is phrased in the negative, prohibiting the government from enacting certain kinds of legislation: "Congress shall make no law ... abridging the freedom of speech, or of the press". Civil libertarians have typically argued that this ought to be interpreted as, essentially: "Congress may not censor, ban, or otherwise regulate speech or writing", subject to very narrow exceptions such as the fire-in-theater example. As Hugo Black famously put it, "no law means no law!"

So, where's that leave us?

I nonetheless agree that there are significant problems with the way campaigning for elections goes on in the United States. But I don't think it's an issue of corporate personhood or can be resolved by simply saying that the First Amendment doesn't apply to the activities of corporations.

Rather, there would have to be a way to carve out a narrow exception for specific kinds of electioneering. That's essentially what the now-overturned Austin decision (1990) attempted to do, but I think generally unsuccessfully, as evidenced by the fact that neither side in the present case attempted to defend Austin's reasoning: one side argued to overturn it (they won), while the other side conceded that its reasoning was suspect, but argued instead to reaffirm its central holding via a new rationale (two alternate rationales were advanced).

Such rationales might well be plausible. Perhaps this particular issue constitutes a narrow exception to the First Amendment: a plausible holding could have been that direct electioneering by corporate entities in the period immediately preceding elections is an exception to the general prohibition on government regulation of publications.

Another occasional proposal is that "the press" refers to a particular kind of corporation, like the New York Times Corporation, that should enjoy First-Amendment protections that other corporations do not. This would save the NYT precedents, and possibly the Hustler one, though "the press" would have to be interpreted pretty broadly if, for example, film-production companies (especially those producing films other than documentaries) are going to somehow count as "the press" too. It would also produce something of a demarcation problem, and I'd be wary of who will be deciding which companies count as press and which don't, given the large gray areas. But it's not an absurd distinction on its face, even if it's one civil libertarians would rightly be wary of.

The current discussion, though, seems to mostly focus on a "Corporations aren't people!" argument, which I think is a bit of a red herring. Whether or not corporations are people, the First Amendment does not permit unlimited government regulation of publications produced by them, and it would be quite undesirable from a civil-liberties perspective if it did: at least, that is the case unless someone has a good argument for why civil libertarians should want the above cases, and others like them, to be overturned.

In short: It may be that the majority opinion in this case went too far, but the opposite proposition, that the First Amendment is no obstacle at all to any kind of government regulation of publications produced by corporations, is even worse.


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Applying the First Amendment to Corporations: Well established and a good idea | 67 comments (43 topical, 24 editorial, 0 hidden)
Ideals conflict with pragmatism (1.80 / 5) (#1)
by Liar on Fri Jan 22, 2010 at 05:26:16 PM EST

Lincoln said, "We all declare for liberty; but in using the same word we do not all mean the same thing." I would add, that in using the same word, the same person may not mean the same thing.

The reaction to this decision is an example of that. The language of the first amendment is highly idealistic in its application but we'd be naive to believe that money plays only a positive role in the world of politics. So, there's a natural tension between the two positions.

Or, at least, I'm torn along those lines. On the one hand, you have the JS Mill argument that the best antidote to controversial free speech is not censorship--it's more free speech. But on the other hand, the corrupting influence of money in politics is VERY well documented. And since a campaign contribution is among the most basic forms of political speech, we stand in natural contradiction to ourselves.

My hope is that this won't change as much of the current landscape as many people fear it will. Considering that George Soros was able to contribute over $20 million dollars to try to get George Bush out of office, what practical limits have we really put on money anyway? All that we've done is forced those who would donate to be more creative with it. The biggest difference this decision may make is on issue ads which now say, "Write to Senator So-And-So and let him know you oppose this bill," will become ads that say, "Don't vote for Senator So-And-So."

I admit I'm a Liar. That's why you can trust me.
(0) parent comment to make ironic point $ (none / 0) (#2)
by LilDebbie on Fri Jan 22, 2010 at 07:41:36 PM EST

My name is LilDebbie and I have a garden.
- hugin -

[ Parent ]
individual rights and political process (none / 0) (#7)
by sye on Sat Jan 23, 2010 at 08:06:43 AM EST

by Walter M. Frank

a thorough analysis. I'm sure he approves the recent development in lifting up the contribution limit.

commentary - For a better sye@K5
ripple me ~~> ~allthingsgo: gateway to Garden of Perfect Brightess in CNY/BTC/LTC/DRK
rubbing u ~~> ~procrasti: getaway to HE'LL
Hey! at least he was in a stable relationship. - procrasti
enter K5 via Blastar.in

freedom to fleece and electioneer, yay! (none / 0) (#8)
by nostalgiphile on Sat Jan 23, 2010 at 09:22:45 AM EST

I think this aptly explains why you're wrong confused:

 The Supreme Court claims in this matter to be defending the corporate right of free speech. The laws of corporate personhood go back to the 1860s, in decisions offered by judges with close ties to the very corporations whose rights they were asked to judge. Corporate citizens, needless to say, have been a plague upon the land ever since (Joel Bakan, the law professor, has correctly observed that corporate citizenship often accords with sociopathic behavior, the kind of behavior that as a society we do not tolerate from individuals). In any case, corporate freedom is not a constitutional right, and corporations do not very much care about freedom of speech, press or assembly as it involves the individual. What a corporation cares about it is its collective endeavor. To provide a collectivist institution with the rights of the individual, to announce a corporation as a citizen, is one of those wonderful juridical inventions that could only be taken seriously in a system where law is exploited to veil reality and to render lies as truth. As Leigh Ratiner notes, no intelligent person can trust such a system. And as regards "corporate persons," Ratiner asks the right question: "If they are natural citizens and commit crimes, why don't we liquidate them as punishment (since they can't be put in jail)? Of course, the answer is that if you liquidate them it will hurt the economy and the innocent shareholders. But doesn't that make it very clear that a corporation is not a person who can be put in a cage or hung by the neck until dead? That's the kind of person the Founders were trying to protect."


If they are going to be equal to individuals in claiming right to free speech, let's insist that they can be punished like individuals as well. Let's liquidate and redistribute their assets when they commit crimes like Enron, Halliburton, etc etc...

And let's not forget what Justice Stevens said in the dissent:

"At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."  


This is an absolutely terrible decision from the worst, most activist S. Court in US history. It all but kills political justice (since it can now be bought) in America, it hurts the interests of ordinary Americans who want to influence things, and ruins the chances of ever regaining control of our government from moneyed interests. Only an absolute fool would support it as a defense of "freedom of speech."

"Depending on your perspective you are an optimist or a pessimist[,] and a hopeless one too." --trhurler

corps are no champions of free speech (none / 0) (#10)
by donnalee on Sat Jan 23, 2010 at 11:28:07 AM EST

think brain lulzara! what's good for the goose should be good for the gander.

corporations aren't people (none / 0) (#12)
by Ezra Loomis Pound on Sat Jan 23, 2010 at 01:15:47 PM EST

it's not a red herring, it's the fucking truth. What alternate reality do you live in geek boy?

:::"Let me tell ya, if she wasn't cut out to handle some fake boy online, well sister, life only gets more difficult, and you only get more emo as you age." --balsamic vinigga :::#_#:::
indeed they aren't (none / 1) (#15)
by Delirium on Sat Jan 23, 2010 at 02:45:37 PM EST

It's a red herring in that the First Amendment does not have anything to do with corporate personhood—it's a restriction on government regulation of speech and publications, not a guarantee of individual rights.

[ Parent ]
so govt shouldn't restrict free speech (none / 0) (#22)
by donnalee on Sat Jan 23, 2010 at 03:27:43 PM EST

by providing the legal framework by which a private company (data moronics) can threaten a suit against k5 for something a person writes about it.

[ Parent ]
there are narrow exceptions (none / 0) (#24)
by Delirium on Sat Jan 23, 2010 at 03:30:02 PM EST

Libel is one, though it doesn't have anything to do with corporate vs. non, since any libel is punishable.

[ Parent ]
let's eliminate ALL restrictions! (none / 0) (#34)
by donnalee on Sat Jan 23, 2010 at 06:42:50 PM EST

make lulzara buy an ad or write diaries instead of threatening legal action.

[ Parent ]
What bothers me is the inequality. (3.00 / 5) (#13)
by tdillo on Sat Jan 23, 2010 at 01:29:06 PM EST

A corporation that is now given carte blanche to 'hire' politicians with no oversight because it would violate their freedom of speech has 'more equal' speech than others regardless of the quality of the idea.

Right here at k5 we can see exactly what will happen. Corporations will be like those with dupe hoards. Now in the past we have moderation in the form of finance reform which, like rusty and the other admins, can be invoked when the dupe master becomes a little too much. With this ruling it effectively puts the trolls in charge of the queue with no moderation. Before long good stories get voted down and worse the public never gets a chance to read those stories. Only the people who are directly involved in the 'sausage making' get to see them. After a while the good people go away and the ones that are left align themselves with the trolls or face never having their articles published at all.

It's all fun and games on a website but we'll see how fun it is when some future President-King, flushed with the contributions of corporations and entirely unaccountable to the public decides to page-widen Iran or crap-flood South America.

The stories and information posted here are artistic works of fiction and falsehood.
Only a fool would take anything posted here as fact.

Future? (none / 0) (#16)
by Vampire Zombie Abu Musab al Zarqawi on Sat Jan 23, 2010 at 02:59:07 PM EST

s/Iran/Iraq/ and you have GWB. There's no accountability since that would make Obama and Clinton accountable as well (one day, the Republicans will inevitably return, or worse: a third party gets power), and we can't have that. Better to have precedence for no accountability whatsoever.

[ Parent ]
I really don't understand what you're saying (none / 1) (#18)
by tdillo on Sat Jan 23, 2010 at 03:18:48 PM EST

GWB was a tyrant and his administration did much to undermine our freedoms. Obama is not a tyrant, he can barely get a school lunch-room menu passed with a super-majority. So you are saying that Obama and others should not be accountable because one president acted as if he were unaccountable? And GWB was not unaccountable. The country itself rolled over and submitted out of fear. Towards the end however, people began to wake up.

Either way, we must look to the future. I realize that the moneyed interests are always going to try to run things and for the most part succeed, however the general public must have means to correct. I do not look forward to the day when the State of the Union is brought to you by Dr Pepper, Doritos and Wal-Mart. Nor do I look forward to the Whitehouse becoming the Phillip-Morris Mansion.

The stories and information posted here are artistic works of fiction and falsehood.
Only a fool would take anything posted here as fact.

[ Parent ]
sadly, to many Americans (none / 1) (#23)
by nostalgiphile on Sat Jan 23, 2010 at 03:29:56 PM EST

what you're saying makes perfect, logical sense..."Sure, Ethel, it's a free country, why the hell cain't Nike endorse Senator Brown? They endorsed Tiger, so why not a politician?"

"Depending on your perspective you are an optimist or a pessimist[,] and a hopeless one too." --trhurler
[ Parent ]
Bush was no tyrant, but he did break the law (none / 1) (#31)
by Vampire Zombie Abu Musab al Zarqawi on Sat Jan 23, 2010 at 04:19:05 PM EST

My point is that Bush was also "flushed with the contributions of corporations" (Big Oil), and that Obama won't hold him accountable and refuses to have his crimes investigated. It might be worth noting that one of Bush's crimes, "extraordinary renditions", or the outsourcing of torture and other illegal practises, was Bill Clinton's idea. If it were to be found illegal (which it bloody well should be), Clinton would fall with Bush. So it's in the best interest of both parties to hold no one accountable at all. It's simple political self-interest.

[ Parent ]
Well on that point I can agree with you (none / 0) (#33)
by tdillo on Sat Jan 23, 2010 at 04:36:54 PM EST

It is in the interest of both political parties, hell the interest of any politician from the gubernatorial level upwards to seek no accountability whatsoever for their actions.

I myself would like to not be held accountable for my actions either but I don't have billions of dollars and thousands of employees that I can coerce to contribute.

The stories and information posted here are artistic works of fiction and falsehood.
Only a fool would take anything posted here as fact.

[ Parent ]
Retarded (but I repeat myself) Palin voter: (none / 0) (#35)
by Nimey on Sat Jan 23, 2010 at 09:48:59 PM EST

But the politicians are accountable to the people!  They do something we don't like, we can vote them out!

I've had futile discussions with people who think just like that, and ever man jack among them was a Republican.
Never mind, it was just the dog cumming -- jandev
You Sir, are an Ignorant Motherfucker. -- Crawford
I am arguably too manic to do that. -- Crawford
I already fuck my mother -- trane
Nimey is right -- Blastard
i am in complete agreement with Nimey -- i am a pretty big deal

[ Parent ]

because in the Republican worldview (none / 0) (#38)
by nostalgiphile on Sun Jan 24, 2010 at 02:18:57 AM EST

public opinion can and should be bought like anything else. 'Money talks', so persuasion is about the almighty dollar, not good arguments or sensible explanations. This seems to be their view of politics, and I have to say it is an accurate description of how things are: a single corporate lobby like American Health Insurance Plans does have more power to sway decisive votes than the whole voting population of the US writing letters to their congressmen. Now afterwards, if they really disagree with how their politicians were swayed by the AHIP money, why don't they vote for someone else come election time? A: look at the puppet on the left and compare him to the puppet on the right and you can easily see how it doesn't matter anymore. The Democrats are really no different, because if they're on the ticket in the first place you know it means they're backed by some big money as well. It's just different money "speaking freely" through them, to put it in this article's First Amendment terms.

"Depending on your perspective you are an optimist or a pessimist[,] and a hopeless one too." --trhurler
[ Parent ]
wouldn't a good response to that by the people be (none / 0) (#41)
by Delirium on Sun Jan 24, 2010 at 05:08:34 AM EST

showing that they cannot in fact be bought, i.e. not letting their vote be swayed by political ads?

[ Parent ]
most people can't be bothered (none / 0) (#55)
by nostalgiphile on Sun Jan 24, 2010 at 10:44:19 PM EST

let's face it, they believe as gospel whatever flashes across the TV screen 6 or more times.

"Depending on your perspective you are an optimist or a pessimist[,] and a hopeless one too." --trhurler
[ Parent ]
but if you believe that, why even care? (none / 0) (#56)
by Delirium on Mon Jan 25, 2010 at 01:32:25 AM EST

It seems like you're basically agreeing with a right-wing view that the people are too stupid to be allowed to rule themselves, except that you still hope to somehow enable them to rule themselves.

[ Parent ]
no, I'm saying they're programmable (none / 0) (#59)
by nostalgiphile on Mon Jan 25, 2010 at 04:26:36 AM EST

the only viable solution to this problem is to take all money out of politics/campaigns and stop it once and for all. For example, people actually watch and are influenced by our nationally broadcast debates, but when these are controlled by the big-ticket, moneyed interests (from only 2 parties) working through their candidates it's just a big sham. They use the debates to control the spectrum of what can be said/voted on in that way, and one thing they don't want to be said and voted on is the direct influence of moneyed special interests on US politics. If you want a perfect example of what I'm talking about, look at the vapid frenzy democrats get into when they talk about the candidacy of Ralph Nader. And this goes back to the original point about corporations having "free speech"--his voice is dangerous enough to want to desperately vilify and silence it with attack ads precisely because they know he's the kind of person Americans will listen to...Indeed, the Supreme Court was willing to hear the Citizens United VS FEC case, but would never for a minute think of hearing Nader, Buchanan, et al VS FEC for allowing the Commission on Presidential Debates to control and bar access to third parties in 2004. 10 CPD secrets

"Depending on your perspective you are an optimist or a pessimist[,] and a hopeless one too." --trhurler
[ Parent ]
That is ridiculous, these guys are supposed to (none / 0) (#64)
by tdillo on Mon Jan 25, 2010 at 01:11:00 PM EST

represent us and our interests and how else are we to know who stands where without political ads? The problem isn't about not being swayed the problem is that some entities have a much stronger voice simply because they have more money and the republic of the people, by the people, for the people becomes twisted.

You say this is a free speech issue and therefore more free speech is better. I say this is an issue of influence and granting a virtual entity with no oversight in the form of campaign finance rules and virtually no accountability because they truly are not 'people' is madness in the extreme and only benefits those interests with the most money.

You see, I'm not arguing against free speech but against the idea that a corporation is a person with all the benefits of being a person and very few of the risks that WE as REAL PEOPLE have to deal with. Now, to grant these FAKE entities this much influence is beyond madness. One might argue that those rights are intrinsic to the corporation but a corporation is simply not like us, born with inalienable rights. The corporation is a legal fiction and whatever rights it enjoys are granted to it.

Is La Cosa Nostra a person? If IBM can claim personhood why not the Mafia? Where do you stand on the rights of the Drug Cartels? Shouldn't they too enjoy freedom of speech, to be secure in their persons and papers, the right to keep and bear arms?

The stories and information posted here are artistic works of fiction and falsehood.
Only a fool would take anything posted here as fact.

[ Parent ]
hmm (none / 0) (#65)
by Delirium on Mon Jan 25, 2010 at 04:30:50 PM EST

how else are we to know who stands where without political ads

I dunno, read a newspaper, follow their voting records, watch their speeches and town-hall meetings, etc.? Do you really think political ads will give you useful information at all, regardless of who's paying for them, as opposed to propaganda?

[ Parent ]

" It's just different money" (none / 0) (#63)
by tdillo on Mon Jan 25, 2010 at 12:35:17 PM EST

Actually, I believe that it is generally the same money. Like salt and pepper, when one is out to purchase politicians it's a good idea to get them in a set.

The stories and information posted here are artistic works of fiction and falsehood.
Only a fool would take anything posted here as fact.

[ Parent ]
I give this troll a +1FP out of 10 (1.50 / 4) (#32)
by Enlarged to Show Texture on Sat Jan 23, 2010 at 04:20:03 PM EST

"Those people who think they know everything are a great annoyance to those of us who do." -- Isaac Asimov
Kill yourself. (1.50 / 2) (#36)
by Nimey on Sat Jan 23, 2010 at 09:51:12 PM EST

Never mind, it was just the dog cumming -- jandev
You Sir, are an Ignorant Motherfucker. -- Crawford
I am arguably too manic to do that. -- Crawford
I already fuck my mother -- trane
Nimey is right -- Blastard
i am in complete agreement with Nimey -- i am a pretty big deal

[ Parent ]
How about the argument (1.50 / 1) (#39)
by donnalee on Sun Jan 24, 2010 at 04:36:24 AM EST

that Congress isn't regulating the corporation's speech, but their spending. Corporations can say what they want, put as many videos on the internet as they want, print up as many advertisements as they want, even start their own network (what is fox news but an advertisement for republicans?), but how much they spend on tv ads can be regulated.

It's basically the same argument used against me by righties on irc: start your own channel.

that's plausible (none / 1) (#40)
by Delirium on Sun Jan 24, 2010 at 05:07:26 AM EST

However, as far as I can tell the struck-down regulation didn't even claim to do that: it did claim to prohibit corporations from putting videos up on YouTube, if they constituted "electioneering" in the prohibited window.

[ Parent ]
basically righties want to say 'money is speech' (none / 0) (#42)
by donnalee on Sun Jan 24, 2010 at 05:30:44 AM EST

The opposing argument (sort of like Bush with his "free speech zones") might be: you can say what you like but not necessarily wherever you want to say it.

Righties want it both ways: I can say what I like wherever I want to because I have money.

I would rather that everyone have the right to say anything they want to wherever they want to, including in irc #politics rooms, on this site, etc. I don't fear their ads if I can respond to them on the internet.

[ Parent ]

lefties traditionally said that as well (none / 0) (#58)
by Delirium on Mon Jan 25, 2010 at 04:26:31 AM EST

Not phrased as "money is speech", but the traditional civil-libertarian position is, "any indirect restriction on speech is a restriction on speech". For example, current precedents would probably not permit the government to pass a law saying: while the production of pornography is legal, no corporation may spend more than $100,000 per year total on the production, distribution, and marketing of pornographic materials; that would impermissibly burden free speech. And it seems like that's the outcome we want from a civil-libertarian position, or else Christian conservatives interested in censorship can simply disguise their censorship as restrictions on monetary spending, tailored in a way that effectively chills the speech they want to suppress.

[ Parent ]
indeed (none / 0) (#62)
by donnalee on Mon Jan 25, 2010 at 11:24:42 AM EST

"Christian conservatives interested in censorship can simply disguise their censorship as restrictions on monetary spending"

or as fines or other monetary penalties, such as civil suits (in classical athens the penalty for speaking ill of the living was a payment of 3 drachmas to the person slandered and 2 to the public treasury).

Thus the threat of a monetary penalty shut down the brave rebellion against the arbitrary and tyrannical authority of lulzaras everywhere, on this very site!

I think some want to make speech private property, and let the free market decide which memes survive.

I'm more comfortable in those online experiments where you allow a sort of primordial meme pool and leave it alone. Let the fittest memes survive, in a virtual environment where money is not necessary.

[ Parent ]

Your examples are almost completely asinine (3.00 / 2) (#47)
by current president of the usa on Sun Jan 24, 2010 at 04:24:35 PM EST

Not that I don't in general agree with you that this case is complicated and tricky legal ground, but ALL of your SO IMPORTANT examples have to do with freedom of speech in the context of freedom of the press. And freedom of the press is something explicitly laid out in the First Amendment.

It is obvious, without any kind of duplicitous reasoning, that the First Amendment gives special protection to the press. Why would they do that if the press is already completely covered under the clause immediately preceding it? One could argue that our Founding Fathers didn't necessarily wish freedom of speech for businesses.

The Constitution is a surprisingly thoughtful document, and it's not like the people at the time were unaware of the dangers of big business. People seem to remember that Jefferson imagined America a nation of yeoman farmers, but they conveniently forget about the East India Company... you know, the one in the Boston Tea Party.

The East India Company was huge, and it even eventually conquered India. It's fair to say that the Founding Fathers knew the dangers of businesses going crazy with power (after all, it was contemporary to them), and they were generally against the idea. Everybody would be, if they knew what was good for them.

Signed with a Presidential Seal

that's not what existing precedent says (none / 0) (#48)
by Delirium on Sun Jan 24, 2010 at 04:36:54 PM EST

Current First-Amendment jurisprudence reads "the press" broadly to mean, basically, "writing", because if it specially applied to reporters, the government would be in the business of deciding who was a legitimate reporter or not. And if they were in that business, would it really be the case that all my examples were of "the press"? Is Hustler a legitimate news magazine? There have been several cases involving pornography production companies that are even harder to justify as "the press", as well.

[ Parent ]
I never denied that. Otherwise, why would I say (none / 1) (#50)
by current president of the usa on Sun Jan 24, 2010 at 07:46:21 PM EST

that all of your examples were "press" when Hustler is porn? You provided three court cases, and you seem to be implying that I stopped reading after the first two... In all cases above, some information was published, and it was the result of that publication that a court case was pursued. It's pretty cut-and-dried "press" from my non-legal-scholar perspective.

That's pretty different from giving money to somebody. I don't think many people would view that as "press". On the other hand, a company could spend the money on a commercial and wouldn't that be "press"? I don't know, and that's pretty much why I'm saying that I agree with your basic premise, generally, just not your examples.

Signed with a Presidential Seal

[ Parent ]
I agree re:giving money (none / 0) (#51)
by Delirium on Sun Jan 24, 2010 at 07:53:18 PM EST

I don't think campaign finance regulations should be unconstitutional under the First Amendment, at least not all regulations. This case wasn't really about donations or other transfers of money, though, unless I'm missing something: the court didn't strike down the annual donation limits per cycle or any of those kinds of regulations. Rather, it was about whether the First Amendment allows Congress to prevent or limit when and how Citizens United could produce and publish a film of theirs, Hillary: The Movie.

[ Parent ]
Oh I see. Well, I'll defer to you about that then. (none / 0) (#53)
by current president of the usa on Sun Jan 24, 2010 at 09:28:27 PM EST

I know it's stupid, but when I first heard about the ruling, the quote was that the SCOTUS ruling was much wider than the details of the specific case, and would somehow allow a lot of money to be pushed to candidates, if the actual decision is read.

I, however, haven't read the decision, so I can't know either way. If it's as you say, then it's not quite as worrisome.

Signed with a Presidential Seal

[ Parent ]
it's possible it could be broader (none / 0) (#54)
by Delirium on Sun Jan 24, 2010 at 09:34:30 PM EST

But I think what the commenters saying that meant was that corporations can now dump unlimited money into TV ads for or against candidates (i.e. ads they themselves buy). I don't think the decision's so broad as to allow corporations to just donate millions of dollars directly to candidates.

[ Parent ]
Now that you've explained it clearly, it seems (none / 1) (#57)
by current president of the usa on Mon Jan 25, 2010 at 03:39:57 AM EST

much worse again. A candidate who knew that a corporation badly wanted him in office could simply reduce or eliminate his advertising budget. In many cases, it would be just as bad as donating directly to the candidate because all he'd use the big extra money for is tv/radio/newspaper/etc. advertising anyways.

Well, I'm pretty sure that the best solution, regardless of the current situation, is to start producing smarter citizens. I mean, traditional advertising is fairly meaningless if we can all think for ourselves.

Signed with a Presidential Seal

[ Parent ]
yeah (none / 0) (#60)
by Delirium on Mon Jan 25, 2010 at 04:37:11 AM EST

I definitely think it has negative implications, and my preferred solution would probably have been some way to save such a law with a very narrow First-Amendment exception.

But I don't think the simplistic attacks on the decision, summed up in the two slogans of, "free speech for people, not corporations!" and "money is not speech!" work. The first is the main one I'm attacking here, but I think adopting the 2nd would be dangerous also. The government should not be able to get around the First Amendment by disguising its speech restrictions as merely monetary regulation: it'd be impermissible for it to put onerous regulations on how much money MIT Press, or Hustler, is permitted to spend each year on publishing/producing/promoting material on topics that the government wanted to suppress.

So if it'd be a First-Amendment violation to say that corporations may not spend more than $X on pornography distribution, why would it not be a First-Amendment violation to say that corporations may not spend more than $X on electioneering? The answer can't really be anything particularly general (both are essentially the same kind of restriction), but would have to be something very narrow involving a the compellingness of the government interest in legitimate elections, the fact that it was a small time window in which the material was prohibited (which reduces the burden vs. year-round spending limits), etc., etc.

[ Parent ]

You overlook an important issue (3.00 / 2) (#61)
by ubernostrum on Mon Jan 25, 2010 at 08:42:05 AM EST

The Supreme Court has created more than a right here; it has also created a duty, and a rather onerous one at that. Corporations are bound by law to act toward one and only one end: maximizing shareholder value. In granting corporations the same political-speech right as natural persons, the Court has inflicted upon them a duty to use that right toward the only end they are legally permitted to pursue, and in the wake of this ruling, corporations which do not do everything in their power to influence elections will likely be subject to suits for breach of their responsibilities to shareholders.

And this points to the heart of the issue, and a useful test for determining the extent to which Constitutional rights should apply to corporations. Wealthy individuals, and wealthy groups of individuals, are free to support or not support candidates as they choose, whether by donation to candidates or political committees, by speaking on a candidate's behalf, or by some combination of methods. And, people being people, they tend to support a wide variety of candidates and positions according to what they feel is best either for themselves or for the country as a whole.

Corporations, however, are not free to advocate according to their consciences; they have no consciences and in fact are forbidden to have them. Individuals can and will hold a wide variety of positions according to their beliefs and inclinations, and are free to hold any beliefs they like. Corporations do not possess and cannot possess such freedom: a corporation's "beliefs" are dictated to it by law, and a corporation's political positions are inevitably forced upon it. Even if the entity itself had some faculty for adopting and holding beliefs, it would be forbidden to exercise that faculty.

Thus the problem: the Court has granted a broad freedom to entities which are powerless to exercise it responsibly. Rather than arguing that a corporation is a "person" and must therefore have certain rights, it would be much more useful to argue that a corporation is a legal entity -- not a person -- which can and should have such rights as it is by nature able to exercise in a responsible manner. This would preclude a broad allowance of spending for political campaigns, but permit all of the prior precedents you cite.

You cooin' with my bird?
it's the principle that's dangerous (none / 0) (#66)
by jcarnelian on Sat Jan 30, 2010 at 05:34:24 PM EST

Natural persons have their free speech rights protected by the Constitution.

Saying that corporations do not have their free speech rights protected by the Constitution doesn't mean that corporations automatically lose all free speech rights; it simply means that lawmakers can restrict those rights if it is useful and can protect them of that is useful.

A restriction on corporate speech close to elections makes sense.  This Supreme Court decision makes it impossible for lawmakers to impose such a restriction, and that's a problem.

I don't see anything positive about this decision.  Natural persons have intrinsic value and an intrinsic right to exist; that's why they are protected by the Constitution.  Corporations are legal constructs and do not have an intrinsic right to exist.

Corporations are post-human evolution. (none / 0) (#67)
by Pentashagon on Mon Feb 01, 2010 at 01:23:42 PM EST

There are two ways this could play out:

  1.  corporations lose their ability to shelter investors from personal liability and eventually die out in favor of some other optimal way of taking money from people with little or no responsibility.

  2.  nothing changes and corporations continue their evolutionary march toward being the dominant life form on Earth.

The corporate body is well protected from harm by being nearly immune to physical damage.  Its individual cells are easily replaceable and mostly immune from legal attacks that could remove particularly effective ones.  It has the benefit of distributed intelligence in its best interest, including the ability to rationally weed out its own parasitic cells.  Legal actions against it are merely simple variables in the complex financial calculations that it already performs to survive.  There truly is no way to kill a corporation; it must self destruct on its own through mismanagement.  The vast majority of humans live symbiotically with them.  Some coexist parasitically, and some are merely collateral damage.

The evolution of technology will eventually free corporations from their need for a symbiotic relationship with humans (except for a well compensated token board directors and a CEO to push the buttons the AI tells it to, and that's only if the first AI corporation can't simply buy some laws allowing it to operate without humans in the loop), and they will simply begin to consume as many resources as they need in order to fulfill distorted vestiges of the goals they were originally given.  Humans may still be in the picture, consuming the products of the corporations like gut bacteria defecated into the sewer, but they will be otherwise meaningless.

I don't see how there can be any alternatives.  Either the human legal system has to severely truncate the rights of corporations, or humanity will have to live as serfs until the corporations decide to turn the life support off because it's not good for the bottom line.

Applying the First Amendment to Corporations: Well established and a good idea | 67 comments (43 topical, 24 editorial, 0 hidden)
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