What follows is not necessarily supported by current law, which in some respects has (erroneously, IMHO) conferred some sort of fictitious “personhood” on corporations. Rather, it’s an attempt to cut through legalisms to get to what’s really at the heart of the issues presented by Citizens United. I’d be interested in your thoughts.
Corporations don’t have vocal cords. They don’t have hands that can use a pen. They can’t type. They don’t have opinions. They don’t even have a physical existence. As Chief Justice Marshall observed long ago,
A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence.
(By the way, the usually excellent Glenn Greenwald went way off the rails on this topic, aggressively defending the Citizens United decision. His fundamental error is where he says, almost in passing, “organized groups of people — which is what corporations are.” Wrong, Glenn. Read Chief Justice Marshall.)
As a result, there’s no need to include or exclude corporations specifically in the First Amendment’s protection of the right to “speak,” because they are obviously not capable of exercising that right. One might as well argue about whether or not dogs should be included in or excluded from the First Amendment. Dogs have vocal cords, but they can’t “speak” either, at least not in a readily intelligible way. (Although I, like most dog owners, am aware that dogs are capable of making certain opinions known!) Are dogs entitled to First Amendment protection? It doesn’t matter, because dogs can’t “speak.” Same with corporations. If anything, the case is better for dogs, who at least have opinions and can make noise expressing them.
This understanding of corporate inability to speak, by the way, has a historical pedigree that dates back to the time of the founding. Justice Stevens helpfully gathered the following citations in footnote 55 of his Citizens United dissent (which is excellent and well worth reading in its entirety):
In normal usage then [when the First Amendment was ratified], as now, the term “speech” referred to oral communications by individuals. See, e.g., 2 S. Johnson, Dictionary of the English Language 1853-1854 (4th ed. 1773) (reprinted 1978) (listing as primary definition of “speech”: “The power of articulate utterance; the power of expressing thoughts by vocal words”); 2 N. Webster, American Dictionary of the English Language (1828) (reprinted 1970) (listing as primary definition of “speech”: “The faculty of uttering articulate sounds or words, as in human beings; the faculty of expressing thoughts by words or articulate sounds. Speech was given to man by his Creator for the noblest purposes”). Indeed, it has been “claimed that the notion of institutional speech … did not exist in post-revolutionary America.” Fagundes, State Actors as First Amendment Speakers, 100 Nw. U. L. Rev. 1637, 1654 (2006); see also Bezanson, Institutional Speech, 80 Iowa L. Rev. 735, 775 (1995) (“In the intellectual heritage of the eighteenth century, the idea that free speech was individual and personal was deeply rooted and clearly manifest in the writings of Locke, Milton, and others on whom the framers of the Constitution and the Bill of Rights drew”). Given that corporations were conceived of as artificial entities and do not have the technical capacity to “speak,” the burden of establishing that the Framers and ratifiers understood “the freedom of speech” to encompass corporate speech is, I believe, far heavier than the majority acknowledges.
Of course, corporations can purchase advertising that conveys a message. But now you’ve added people into the mix. You’ve got people deciding to create the ad; you’ve got people deciding what the ad should say; you’ve got people writing the ad copy and doing the voice-over; you’ve got people determining how much money from the corporate treasury should be used to run the ad. And this is true whether we’re talking about political advertising or about ordinary commercial advertising.
For present purposes, the point about the treasury is the critical one. Corporations are entities that receive a variety of state-sponsored legal advantages in order to help them amass large amounts of money in their corporate treasuries. (The reason for doing so is presumably that, by amassing wealth in this way, corporations supposedly help the economy, create jobs, etc. – whether or not that’s true is a topic for another day. Let’s assume it’s true.) So, when a corporation buys an ad, it does so because the people who run the corporation have decided to direct some of that (essentially) state-subsidized wealth toward an ad purchase.
So, does that mean the corporation is speaking? No, of course not. As we’ve already established, corporations can’t speak. What’s happening is that people who hold certain positions of responsibility within the corporation are speaking, and their speech is facilitated and amplified through the use of corporate money. The amount of money spent determines the level of amplification — it can run from the small amount needed to hang a poster on the wall outside corporate headquarters to the much larger amount needed to run ads during the Super Bowl. But regardless of the form the speech takes, the result is the same: it is people speaking, and their speech is amplified through the use of corporate funds.
Which brings us to what’s really at issue in Citizens United: how far does the right to amplify speech extend? It seems to me easy enough to say that people can use their personal wealth to amplify their speech pretty much as loud as they want. It’s their money, after all, and if some gajillionaire wants to take out ads saying “Vote for Joe,” why shouldn’t we let him do so? If the First Amendment protects my walking down to Kinko’s and copying a bunch of fliers saying “Vote for Joe” that I then hand out on a street corner, what’s so different about the gajillionaire buying TV ads?
But here, we are not talking about people using their personal wealth. We are talking about people using wealth that was created by virtue of the state-sponsored corporate form, and over which corporate rules and regulations give them control. Simply put, it’s not their money, and there’s no particular reason that people who run corporations should have a constitutional right to use someone else’s money to amplify their own speech. It seems to me that, barring some law to the contrary, corporate money could be used in this way — after all, state law empowers a corporation “to do all things necessary or convenient to carry out its business and affairs,” and it might well be “convenient” for XYZ Corp. that Joe rather than Jane be elected. But I cannot see why the Constitution should require that corporate money be available for political advertising, since again, we are not (and cannot be) talking about the corporation’s “speech.” If the states, or the federal government, wish to qualify the “all things necessary or convenient” language in corporate statutes to exclude paying for political advertising, it seems to me not at all constitutionally problematic for them to do so. After all, to return to Chief Justice Marshall’s words, “being the mere creature of law, [a corporation] possesses only those properties which the c
harter of its creation confers upon it either expressly or as incidental to its very existence.”
So, to sum up: corporations, like dogs, don’t “speak.” People speak. People get to spend their own money to amplify their speech, but they don’t necessarily get to spend someone else’s. It seems to follow that there shouldn’t be a constitutional right for people to use the money in a corporate account that they don’t own to amplify their own speech.
What am I missing?
I mean “semantics” in its technical (linguistic) sense.
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p>First, I think there is a question about the relationship between money and speech. I am under the impression, but it is an informal and untrained one, that a rather unhappily long chain of court decisions has built a historical precedent that says, in effect, that a corporation spending money is the same as “speech”. Persons speak; corporations spend.
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p>Even more fundamentally, though, is the rather thornier question of what a corporation is. I fear that your line of reasoning may be falling into what the AI (“Artificial Intelligence”) community calls the “name/object” confusion (closely related to the “use/mention” confusion).
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p>While it is certainly true that something related to a corporation is “a mere creature of law” that “possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence.” I would suggest, however, that to say that this is all a corporation “is” — in an existential what-is-reality sense of “is” — misses the mark.
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p>The Exxon Corporation did something negligent and awful in befouling Alaska with oil. It was not its charter that did it. Yes, individual persons did the deed — but to say that there is not some very real and separate entity is to engage in sophistry. It was EXXON that folks were angry at, not (just) the captain of the Valdez and certainly not the many cabinets full of pressed dead trees that constitute the written “definition” of Exxon, Inc.
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p>I think we are poking at the relationship between a symbol and its meaning. A symbol is not a symbol unless it has meaning. Often, a “meaning” becomes far more “meaningful” when it is attached to a symbol. Thus, the two are closely intertwined, yet certainly they are still separate.
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p>Where is the “music” in a Beethoven sonata? Is it in the pits and plastic of the CD that I insert when I want to hear it? Is it in the hardware that plays that CD? Is it in the pieces of paper from which the pianist learned the notes? Is it in the notes? Is it in the instrument?
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p>I submit that it is in all of these places and none of these places. I suggest that “the music” has its own existence separately from all those other things, and all those other things (together with my ears, my playback system, the room where I listen, and all that) amount to concrete things that reveal the existence for my appreciation.
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p>I think the rub here is that the same holds true for a corporation. It has an existential platonic existence separately from the persons who comprise it and the legal instruments that create (and destroy) it.
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p>If you haven’t already done so, I strongly encourage you to watch The Corporation. One interesting exercise is to accept its personhood, and then explore the question of how a psychiatrist or psychologist would characterize the behavior (using the DSM vocabulary, for example) of that person.
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p>As a culture, we have a reasonably well-established basis for determining that certain individuals demonstrate a constellation of behaviors that we call a “personality disorder“:
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p>Here are the diagnostic guidelines that we use to identify a “personality disorder”:
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p>If a corporation insists on being treated as person when it comes to its freedom of speech, is it unreasonable to also treat it as a person when it comes to determining whether it is dangerously disturbed?
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p>Is it time to ask ourselves whether the legal framework that corporations must live within itself induces dangerously pathological behavior of these corporate “persons”?
In practical terms….
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p>Wouldn’t the result of a different decision by the court inevitably result in a society where the government has to decide which political speech is OK during a campaign?
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p>Movies are produced by corporations. Books are printed, and often funded in advance, by corporations. Many web sites are incorporated.
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p>Who will decide if “Hillary the Movie” or M. Moore’s productions should be banned. Would Obama’s biography, which came out during the campaign, be subject to review by the election commission? Could it be banned from stores during specific campaign periods?
In practical terms, the court has already decided “which political speech is OK during a campaign” — namely, whatever money can buy. In my view, this is what makes this issue so thorny.
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p>We long ago determined that our right to freedom of speech does not extend to falsely yelling “fire” in a crowded theater. I submit that flagrantly dishonest accusations about Barrack Obama’s citizenship during a campaign amount to the same thing. I suspect our attorneys can provide the specifics of how the argument can be made and judged; to my lay eye it runs something along the lines of “is the speech true?”, “if the accusation is false, is it harmful?”, and perhaps extending to “is there a motive?”
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p>In practical terms, corporations already are treated as persons, and they display behavior that is often best described as one or more “personality disorders.” Staying practical and realistic, shouldn’t we therefore be looking rather more carefully at specific and concrete ways that the current legal and regulatory environment produces and even demands this harmful behavior?
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p>If an individual openly, repeatedly, and loudly proclaimed that they put their own immediate self-interest and self-gratification above every other consideration, even when it was illegal and harmful to others, wouldn’t we take steps to restrain them? If we observed that a school, church, club, or other influential organization was consciously, explicitly and intentionally teaching that behavior to its charges, wouldn’t we take steps to restrain that organization?
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p>Why, then, should we not treat corporations the same way?
Psychologically speaking, many large corporations could be considered .:
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p>-Glibness/superficial charm
Grandiose sense of selfworth-Pathological lying
-Cunning/manipulative
-Lack of remorse or guilt
-Shallow affect
-Callous/lack of empathy
-Failure to accept responsibility for own actions
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p>In their extreme self-centeredness, large corporations also share a lot of traits with Satan.
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is this demonizing of corporations. Corporations are not intrinsically “evil entities”. Like “some” Democrats are evil. some corporations can be evil, but not all Democrats or all corporations.
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p>I think your attitude, which I see a lot of today in our politicians is counter productive to getting jobs and starting our economy again.
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p>Your attitude proves you are part of the problem and not the solution.
You’re commenting on someone’s attitude.
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p>My!
Oh, wait. Never mind.
Would you describe the application of the above diagnostic criteria for personality disorders as “demonizing” the sufferers? Are you making the claim that corporations are not subject to analogous disorders? If corporations are entitled to the constitutional protections offered persons, why should those corporations not be subject to diagnostic criteria similar to those applied to persons?
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p>Current law requires the executives of a corporation to put the maximization of shareholder/investor profits above all other considerations. Is it “demonizing” to ask whether that requirement is likely to result in “healthy” corporate behavior?
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p>Is there any counterpart to that requirement for individuals? How would you describe a person who put the maximization of their own immediate financial gain above all other considerations (aside from “Republican”)?
I do believe he said “many large corporations” up top. Not all. True, at the end he omitted the “many”, but I don’t think anyone could reasonably read “all large corporations” in there, given the first 90% of the comment.
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p>So rather than discussing attitude, how about discussing the substance of the comment. Do you think his list of 8 traits misses the point, especially when it comes to, say, tobacco companies? Certainly there are large corporations that aren’t evil (Google, Apple), but lots that one could make a reasonable argument they are.
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p>So do you disagree with Mark’s actual comment? The Satan part I’m willing to agree may seem a little over the top. Kind of like comparing someone to Hitler — even when it’s 100% accurate, it’s still gonna be perceived as over the top. So how about the rest of it? Anything productive to say?
So to call all corporations evil would be a pretty sweeping statement. Large corporations do confer some benefits on society, but a comparison to people reveals an amoral monster, lying through advertising, refusing to take responsibility for its actions, and completely motivated by self-interest. The Tobacco Institute selling the healthfulness of cigarettes, the Petroleum Institute producing lies on climate change, Enron… the list goes on.
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p>On the other hand, some of the people working for corporations do things out of some measure of altruism.
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p>NOTE: JohnD might have an honest philosophical disagreement with me in there. Conservatives generally attribute selfishness to human nature. I don’t mean that conservatives are selfish, but that they believe people are generally self-centered. I think that’s the reason they like to bring up things like Al Gore’s house or Hollywood liberals. They appear to justify the selfishness hypothesis.
That all of these traits are fine…are a result of the manner in which the entity exists in law, and even, are acceptable…but with the caveat that we, the people, have the right to make laws and restrictions to counteract this amoral (and as mention, often psychopathic, if they were “persons”) behavior…not allowing Chemical Co A to dump their toxic waste in our commons like waterways, air, or land…protect workers from the treatment they are likely to get working for an entity in constant pursuit of a profit…prevent behaviors that are damaging to the general well being of that most precarious of commonwealths, the economy…and so on.
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p>After all, we don’t let dangerous psychopaths wander the streets to hurt people, do we?
Like not a few liberals, I don’t demonize corporations. Not at all. Corporations are like cats. To live well with a cat, you must set up the environment so that cat wants to do what you want the cat to do. You can’t yell at a cat as you might a dog. Cats are immune to moral persuasion. They’re just cats. If they shred your furniture, you haven’t thought about the scratching media they need.
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p>With corporations is a matter of having the appropriate regulatory environment not haranguing them.
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p>Treating corporations like individuals is like treating cats as if they were dogs. Mark Bail’s comment points out that corporations really do not behave like humans. By their very nature, corporations are not supposed to be empathetic, experience guilt, etc.
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p>JohnD, as is too typical with his 50 unthought-through, hastily written comments per day, has “joined” this conversation with his thousandth remark that we shouldn’t demonize corporations.
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p>JohnD, we got it. You can stop making that remark.
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p>Now, why don’t you go off and write us another John Edwards diary?
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…that you would use a comment of mine as the basis of a diary:) I think this is excellent analysis and definitely a new angle that I had not considered. How would this apply to media outlets themselves? Newspapers have always had a right to editorially endorse candidates as an assumption under free press. They are also rather significant corporate entities, especially in this era of consolidated ownership. If the law gets rewritten to make refraining from endorsing candidates a condition of corporate chartering, as I believe it is currently a condition for tax-exempt status for non-profits, will there be some sort of exemption for bona fide media outlets to continue to endorse? I suspect that constitutionally there would have to be.
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p>The press is the only private business singled out for special protection in the Constitution. It follows that “bona fide media outlets,” even if they’re corporations, get special treatment that other corporations don’t.
but in light of these discussions I wanted to be sure.
Do you think it will pass muster in light of this ruling to say that corporations can ONLY speak through their media holdings? In other words if GE still owned NBC (not sure what the status of the Comcast deal is at this point) would it start claiming that it is a media outlet and can therefore express paid political opinions by buying ads in papers or on other networks?
The more pertinent amendment is the 14th, not the 1st. As David’s mention of a dog suggests, speech isn’t automatically extended to anything with a voice. It took a SJC decision to grant corporations “equal protection” under the 14th Amendment.
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p>American law isn’t merely a matter of the Constitution; it is interpreted through through stare decisis, or legal precedent. Corporate personhood came about in Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 in 1886. It concerned taxing the railroads. It wasn’t much thought about then. The decision was unanimous.
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p>I can’t say that the SJC’s decision was judicial activism, but the decision certainly came about when corporate power was colossal and many Americans associated corporations with American progress.
that aspect of the 1886’s Court’s opinion was just dictum, and should not have been binding on later courts.
It was an administrative statement before the court considered the case.
But I think a good argument can be made by the other side to regulate for-profit corporations.
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p>Nonprofit corporations, on the other hand, are “organized groups of people” established largely to give “voice” to the membership. These groups will often fund themselves solely by voluntary contributions. I think nonprofits should be treated as individuals for purposes of the first amendment. You didn’t see this kind of corporation at our founding, but that’s because corporations simply didn’t exist as the do today. They didn’t even have free incorporation – corporations were really just monopolies granted by state legislatures, so it’s hard to draw direct analogies.
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p>I’m no historian, but I’d also be surprised if early corporations didn’t frequently exercise the “institutional speech” that Justice Stevens doesn’t think existed.
They certainly would have given money to the lawmakers who voted to grant them their corporate charter. This is a bit later, but Biddle used the US Bank to spent large, uncontrolled amounts of money to attack Andrew Jackson and prop-up his political enemies. That is, of course, until Jackson de-funded “that hydra-headed monster.”
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p>And call me a libertarian absolutist, but if God ever endows a dog with the ability to voice intelligible political opinions, I say he is free to do so. (On the other hand, you could then call him a “teabagger” and it would be a simple statement of fact and public record.)
Exactly right! The First Amendment doesn’t distinguish among speakers. If dogs could “speak,” they’d be protected. But until God gives corporations vocal cords, we’re in the clear. 🙂
Yes, I was troubled far more by your choice of analogy than by the actual point you were making. 🙂
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p>I’m still scratching my head over Justice Steven’s claim that “institutional speech” didn’t exist at our Founding. While very different from Corporations, there were plenty of groups, such as the Sons of Liberty, that spoke with one voice. And there were collective organizations, such as guilds, that had existed for hundreds of years. And let’s not forget that congregations and town meetings also participated in group-speak.
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p>As long as we’re talking original intent, a far better case could be made that the Founders would not have recognized a “freedom of expression” that includes nude dancing.
… back then was a closely guarded secret of Freemasons [/snark].
Corporations can’t go to jail, can’t enjoy an office party, can’t receive a bonus… Hmmmm, so corporations can’t have a freedom of speech but maybe the people who work at corporations and run organizations can do ALL those things.
with the emphasis on only true “people” being able to speak is that, like corporations, associations also cannot literally “speak”. An association like the NAACP cannot literally “speak”, yet we probably agree that limitations on the NAACP’s speech would violate the 1st Amendment (as the Court held in NAACP v. Button).
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p>The key seems to me not that the corporations cannot literally “speak” but rather that they are essentially creations of the government. Without established corporate law, corporations would not exist. The difference between them and the NAACP is that the latter springs from civil society (and does not rely on the government for its existence) and is protected under the 1st Amendment’s right to assembly and petition. This gets at the heart of the original intent of the First Amendment — to protect the rights of individuals and civil society, not corporate forms (which in any event did not exist then as today).
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p>So, in short, I think applying the “only people speak” criteria is too restrictive because such a criteria would also apply to associations in civil society. However, I also think that corporations are not protected associations.
I think, however, that the unusual facts of NAACP v. Button actually fit nicely within my construct.
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p>First, it’s important to note that, according to the Button opinion, the NAACP is a corporation. And one of the powers that states always give corporations is to “sue and be sued.” And the question in Button was whether conducting certain kinds of litigation was protected activity under the First Amendment. The Court observed:
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p>
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p>So this is a refinement on my original thesis. I said that corporations can’t “speak.” Well, it turns out that they can – in those unusual circumstances in which conducting litigation constitutes protected speech. But I’d add that those circumstances are likely to be few and far between.
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p>As to your point about unincorporated associations, though, I think the case is much stronger for the position that such associations, which are essentially just groups of people, do “speak” in the same way that individuals do. In effect, it’s as if all the members of an unincorporated association talk at once. That’s speech. But that’s not a corporation, which of course is a distinct legal entity, as described by C.J. Marshall. So, if Citizens United had been an unincorporated association, Glenn Greenwald would have been right that it’s just an “organized group of people.” But he’s clearly wrong that that’s an accurate description of a corporation.
You make a good point regarding the NAACP actually being a “corporation.” But it doesn’t seem to me that the only free speech protection that the NAACP itself has is related to the narrow category of conducting litigation. An extreme example: consider a hypothetical law that prohibited all “racial equality corporations” from participating in political campaigns through advocacy efforts. The would run into other problems too — Equal Protection, etc. — but wouldn’t it also run afoul of the 1st Amendment?
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p>This is a tricky distinction to make, but there does seem to be a considerable, 1st Amendment-relevant difference between non-profit advocacy “corporations” like the NAACP, Citizens United, the NRA, etc. and corporations like Microsoft and Exxon (and one that goes beyond the fact that one group is non-profit and the others for-profit). Perhaps a meaningful distinction between the two cannot be made under the First Amendment, but I am somewhat uncomfortable both with (1) the suggestion that political advocacy groups like NAACP/NRA could have their free speech regulated more than individuals and (2) the notion that corporate donations (e.g. from Microsoft) to electioneering activities cannot be regulated under the First Amendment. Again, a tricky distinction to make, but one that I think has force considering the original intent of the Free Speech Clause.
Couldn’t there be two kinds of corporations, and only the ones that declare themselves in their charter to be advocacy organizations could buy political ads? And if they said that, they wouldn’t have that problem of being only concerned with maximizing their capital value, they could explicitly put that last on their ethical obligations.
No doubt, under my thesis, non-profit corporations like NAACP, NRA, etc. would not have First Amendment rights to “speak,” other than in unusual circumstances like the Button case.
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p>I might be OK with that. My basic thesis is that the corporate form confers a lot of state-subsidized advantages on those who choose to take advantage of it. But those advantages have costs as well, and one of the costs is that by taking corporate form, the entity chooses to forego the constitutionally right to “speak,” since (to come back to my original thesis) they actually can’t do so in most cases.
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p>What’s the alternative? Like I said, unincorporated associations I think retain First Amendment rights. It’s not as easy to raise money that way, but again, them’s the breaks. And, of course, all sorts of corporations would remain free to set up PACs or other forms of segregated funds that would also retain First Amendment speech rights.
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p>Like I said at the outset, my thesis isn’t supported by current law, and if the Supreme Court were suddenly to adopt it, it would likely trigger a lot of changes, both in the way statutes are written and in the behavior of advocates. That would be OK, I think.
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p>I’m not sure, though, that I see a reasoned basis for distinguishing for-profit from non-profit corporations in terms of First Amendment rights. Maybe there is one, but off the top of my head, I’m not sure what it would be.
while I’m completely terrified of large corporations being given the right to freedom of speech, I also see how preventing them from doing so might also affect other groups and organizations that we would want to speak freely. I think that the key here is whether the group, association, or corporation is speaking on behalf of all of the “people” it represents.
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p>Most or all non-profits, associations, and other groups do, such as NAACP, AARP, etc.
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p>Bank of America would not. They would run ads to support the interests of company profits, as well as CEO perks and bonuses. Because of this, they would support the anti-regulation candidate, most likely being a republican or even a teabagger. But what about the teller at your local Bank of America, who, over the course of the last ten years has not seen a pay increase, pays more for benefits, and has been downsized to a 32 hour a wk position instead of 40. Even Mike Capuano’s proposal to have shareholders vote on corporate political advertising really leaves the working middle class employee of said company not only without a voice, but battling even louder voices working against their interests.
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p>There has to be a way to put together an amendment, or some sort of regulation, to stop the big corporations from steering elections. I can’t see anything positive for the country coming out of corporate freedom to manipulate the electorate. Corporations do not have a voice; I don’t think we should give them one.
…I suppose we could require all employees of a corporation vote on these decisions, but get ready for the cries of socialism:)
I hear the “empowering employees = socialism” subliminal message popping up here and there. It’s why you can hear behind the scene hisses on the news whenever the word populist is mentioned. I’ve also noticed that teabaggers are being called populists which is not true in general. There may be a few populists in there, but overall, teabaggers are anarchists.
True, though what they are doing is tapping into a larger (that is, larger than their movement base) populism in the country going on right now, which goddamnit, Dems should have taken advantage of, since populism is part and parcel of their history and their stand on the issues.
It’s an advertisement released by 60Plus.org
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p>I’ve seen it about 3 times over the last month. Is there any bit of truth to it?
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The most influential Scott Brown ad was the Miller Lite ad where the guy chooses his beer over Martha Coakley his annoying girlfriend. I think that’s what emboldened men to get out and vote, gleefully. “If me and Buster were hanging over a…What is she talking about?”
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p>I can’t embed it, but it’s on their site if you haven’t seen it.
I liked your framing of the question as
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p>You then point out that access to money amplifies speech, which is OK for private individuals but not for corporations.
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p>But why is it OK for private individuals, or any entity, to amplify their speech in an unlimited way? Why does a rich person get to speak louder than me?
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p>We have laws against playing music too loudly. Why can’t we have laws against speaking too loudly? Highly amplified speech (in the financial sense) can be a lot more dangerous than loud radios!
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p>Doesn’t the concept of the right to speak imply some concept that everyone gets an opportunity to speak? And can someone without access to TV ads be considered to have a meaningful opportunity to speak in a political world dominated by them?
though one for another post. The main point is that the difference between my xeroxed fliers from Kinko’s and Mr. Rich’s ads during the Super Bowl are differences in degree, whereas my spending my money vs. the CEO of XYZ Corp. spending XYZ Corp.’s money is a difference in kind.
Exactly the point I made on another thread. The problem isn’t Citizens United; it’s Buckley v. Valeo.
… an attempt to further explore the taxonomy of the entities being compared in order to better understand how rights may be derived from the characteristics of the entities involved. (What was the exploration of taxonomy in the opinion – this one or the corporations=people case?)
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p>The point of Taxonomy that you highlight here is telling. Private individuals may also “purchase advertising” and I don’t think anyone would argue that doing so isn’t an exercise of first amendment rights, yes? You want to make the distinction that when you ‘add people to the mix’ this is a salient difference. Certainly ‘you’ve got people deciding what the ad should say’ sounds distinctive, but substitute ‘people’ with ’employee’ or ‘corporate officer’ and it becomes less clear which ‘entity’ (person or corporation) is doing the ‘deciding’. More importantly, there is a bit of a bootstrap argument here that doesn’t work. Are we are saying that the ability to buy advertising, although common to both entities being compared (people and corporations), is nontheless distinct as applied to the two entities because ‘people’ are involved in the corporations’ speech. This isn’t a distinction is it? People are ‘in the mix’ in both cases. Wouldn’t this further the argument that it is speech, since people are ‘in the mix’?
let me try to answer the various questions you raise.
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p>Right — that’s what I said in the post. If I want to spend my money copying fliers at Kinko’s, or if a really rich guy wants to buy ads during the Super Bowl, those are both protected activities.
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p>No, I don’t agree with that. People are deciding. Corporations cannot “decide” anything. They are purely legal entities; they are not sentient beings.
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p>What’s distinct is the source of the money, and that’s really the essential point I’m trying to make. The rich dude who buys ads during the Super Bowl is spending his own money. He has a constitutional right to do that, just as I have a constitutional right to spend $5 at Kinko’s to copy some fliers and distribute them. But the corporate executives who decide that the corporation ought to fund advertising are spending the corporation’s money to do so. I cannot for the life of me see why they should have a constitutional right to do that. Remember, what I’m talking about is the right to amplify your speech, through the use of money. We do this all the time, whether in the course of buying a megaphone, copying fliers, renting a sound truck, or buying TV advertising, and I think there’s little doubt that it’s a protected activity. But the point is that you have a constitutional right to spend your own money amplifying your speech, but no such right to use someone else’s money to do so.
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p>Does that answer your questions?
“What’s distinct is the source of the money, and that’s really the essential point I’m trying to make.”
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p>Sounds fine and sound. I think the ‘people in the mix’ thing then is actually orthogonal to your point then. Your real issue of taxonomy here is that the money ‘doing the speech’ is distinct.
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p>I’d quibble with your point that legal entities can’t ‘decide’ anything though. They have a system of governance and operations that detail how decisions get made. Perhaps what is needed is a definition of ‘decide’ to agree on. Extending your argument that they can’t decide anything because they are legal entities, you’d have to conclude that groups in general can’t decide on anything if they are defined as a legal entity. The government itself is a legal entity.
No, actually I don’t think so. It’s essential to distinguish corporate “decisionmaking” (an oxymoron IMHO, though a commonly-used one) from human decisionmaking; otherwise the source of the funds (the heart of my point) isn’t important.
If the point is the source of the money, why is it salient that corporations can’t exercise speech without people getting involved in the process? The money doesn’t care. The status of the source of the money doesn’t care. Whats the distinction?
because if a “corporation” can speak on its own account, then it presumably has a First Amendment right to do so, from which it seems to follow that Citizens United was correctly decided. That is, Glenn Greenwald is right.
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p>But he’s wrong, because he misunderstands the nature of a corporation. He accepts that something called “corporate speech” exists, whereas it really doesn’t (except in some unusual situations — see the discussion above re NAACP v. Button).
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p>And so, again, what I take issue with in Citizens United is that it seems to confer a constitutional right on certain people (namely, corporate executives) to use someone else’s (namely, the corporation’s) money to amplify their own speech. That makes no sense to me.
… I think. This comment seems to indicate that the salient point is to distinguish between types of (alleged) ‘speech givers’. Earlier you said the point was the source of the money. I see the distinction you are making here with regards to the former, but I don’t see a tie in to the latter (which you said earlier was your ‘main point’). I’m thinking that you’re making two ‘main points’ and you may have misspoke earlier.
the source of the funds are shareholders in the corporation. They decide to put their money into a corporation knowing that the corporation is set up with rules giving decision making power to various individuals. The shareholders give their money with the hope that the individuals in power will make decisions with that money which will preserve and grow their investment. The money still ultimately comes from a person.
it doesn’t mean that the corporate executives should have a constitutional right to amplify their own speech through the use of money that does not belong to them. That’s really my point. Do rich people have an advantage? Yes, because they can afford to amplify their speech a lot. The First Amendment doesn’t try to equalize the volume of everyone’s speech, nor should it. But the fact that rich people are constitutionally entitled to use their own money to amplify their speech doesn’t imply that people who work at a corporation get to use someone else’s money to do so.
They’re speaking on behalf of the corporation (i.e. the shareholders). It might be an academic difference, but if a situation arose when the corporation’s (i.e. shareholder’s) interests in political speech were not aligned with an executive’s personal interest in political speech then the executive has a fiduciary duty to spend the corporation’s (i.e. shareholder’s) money against his own political interests. Otherwise the corporation (i.e. shareholders) brings a derivative suit against the executive.
I’d be curious to know when the last successful shareholder derivative suit complaining about political activity by the corporation’s leadership happened. (Corporations already find lots of ways to spend money politically – they didn’t need Citizens United for that.) If this is a “business judgment rule” situation, the bar is awfully high.
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p>To your larger point: the fact that corporate executives may be speaking “on behalf of” the corporation is, I think, indeed an academic point. They are still amplifying their own speech. My guess is that whatever the executives personally favor will, in an amazing coincidence, be found to be also in the corporation’s best interests, and the corporation’s money will be spent accordingly.
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p>Call me a cynic, but that’s how I think it’ll go.
is really with the business judgment rule. You (rightly) point out that it’s very tough to ever win a derivative suit when the courts are so deferential to the executives. But then shouldn’t you want to protect the corporation’s (i.e.shareholder’s) first amendment rights and instead call for a less deferential standard to prevent executives from acting on their own views against their fiduciary duty to the corporation (i.e. shareholders)? There might even be an argument that there should be a less deferential standard in the first amendment context because the executives are placed in a position where they are expected to exercise the first amendment rights in the best interest and on behalf of the corporation (i.e. shareholders).
If your point is that only people have rights to 1st amendment speech, then the question is “is speech by other entities on behalf of people” also covered by rights to 1st amendment speech. This speaks (heh) directly to your salient point, so for purposes in discussions here it is exactly on point, no?
… even if you buy the ‘derivative’ right because of speech ‘on behalf’ of entities with undisputed 1st amendment rights, there is another problem with using this as the linchpin to sustain a theory of corporate free speech rights. While a case can certainly be said that such speech is ‘on behalf’ of shareholders, it’s a very debatable notion that it is also on behalf of customers. Since the speech being exercised here is represented by the money involved, and since most of that money comes from customers (and not shareholders), then this is a problem for the theory.
There is a fiduciary relationship between the executives and the shareholders where the exectives act on behalf of the shareholders. And one way to act on behalf of shareholders could be to exercise their first amendment rights.
… the conduit of this speech is the money, most of which isn’t the shareholders. Duty relationship or not, if the speech ‘capitol’ is from the company’s income, then unless the company pays out 100% of it’s profits in dividends the speech ‘capitol’ of the customer is employed by the corporation… and because of the very different relationship the ‘derivative’ right for the corporation to turn the cash into speech is more suspect than any such right derived purely from shareholders.
A shareholder give money to a corporation and the corporation becomes the shareholder’s agent, and owes the shareholder a fiduciary duty to protect and grow the shareholder’s money through its for profit business venture. Because the corporation is acting on behalf of the shareholders, the corporation can exercise the shareholder’s free speech rights in order to perform the duty that the corporation owes the shareholder, i.e. protect and grow the shareholder’s money. It doesn’t matter if the corporation subsequently gains money from other sources (loans, customers, gifts, etc). The corporation does not have a fiduciary relationship with any entity that gives the corporation money, only entities that give their money to the corporation in exchange for ownership in the corporation and the corporation’s agreement to act on behalf of its owners. It’s not merely the money, but the relationship that’s created with the money that allows the corporation to exercise the shareholder’s free speech rights.
… the the source of the money matters. This is because the derivative right comes from the relationship of the person to the corporation. If you buy that such a derivation exists, then it must be because of the relationship and it’s practical expression is the transfer of the money. This means that the argument of the ‘legitimacy’ of such a derived right hinges on the nature of the relationship. So when, as you say, “…gains money from other sources,” this necessarily means that there is new cash on the table where the derivative speech rights are based on a different relationship that that from the shareholder. You seem to acknowledge that relationship is key for the derived right: “the relationship that’s created with the money that allows the corporation to exercise the shareholder’s free speech rights.” But as we just said, there are other relationships that the corporation has that involve money. What derivative rights to those relationships infer? There is a distinction there in types of relationships and since the relationship is the factor that determines the derivative right, it necessarily must be acknoledged that distinct types of relationships might not have the same derivative effect. This is further complicated by the fact that all the cash is fungible. So when the corporation takes out a $500 ad and avails of 1st amendment speech, what can be said about who’s speech the money represents by proxy, since the corporation has multiple sources of money from people and entities with distinct types of relationships with the corporation in question.
David and I were discussing a shareholder derivative suit, a lawsuit that a shareholder brings on behalf of the corporation against a director alleging that the director did not act in the best interest of the corporation. I’m not arguing that the corporation’s free speech rights are “derivative.” I’m arguing that the corporation has the free speech rights of the shareholder because the corporation is acting as an agent of the shareholder and the corporation is in a fiduciary relationship with the shareholder. The free speech rights do not derive from money, they derive from the agency relationship and the corporation’s fiduciary duty. Don’t get caught up tracking the specific money that the corporation uses to run the ad. The relationship is such that the shareholders are saying “I’m going to give you this money, and turn it you owe me the obligation to take whatever actions you reasonably believe will turn it into more money.”
The wires are crossed is all because I was originally addressing David and hypothesizing derivative rights based on the relationship with shareholders. This derivative model is a hypothetical construct based on a premise that David put forth that only those who can speak have free speech rights. You’re not on that page at all, which is fine, but outside the point I was originally making.
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p>Then the shareholders have the right to free speech, but not free speech that is funded by the corporation.
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p>In reality, it would be in the best interest of these
corporations and the shareholders to pay $2.00/hr to their workers, provide no health insurance, and even potentially create working conditions similar to China. As you will notice, even without the ability to amplify their message, they have done a very good job of successfully creating the message that fair wages and a few small perks for working class people is equivalent to socialism, and that keeping wages low, vacation time low, etc. is what is really good for America because that way the wealthiest have what they have worked so heard for all of their lives, and they can throw out a few low paying jobs once in a while for the little workers running around under the illusion that they have a life.
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p>Give them a bigger voice, and you can bet they will work their way, step by step, into dissolving the middle class
American dream existence that we are already well on our way to losing.
It’s not that the free speech of the shareholders is funded by the corporation. It’s that the shareholder’s have free speech rights that are not lost when the corporation acts on behalf of the shareholders.
as noted with the crash of 2008. Many of the shareholders are working class people with retirement accounts invested in portfolios that they can’t even begin to understand.
Certainly some risk is understood, but the meltdown of 2008 caused by nothing more than corporate irresponsibility leads me to believe that the corporations are more interested in exorbitant profits and big bonuses rather than the saftey of their shareholders investsments.
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p>Not convinced
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p>
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p>So I will revise what I said previously and change it to this:
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p>Then the shareholders have the right to free speech,
but not free speech that is funded by the corporationbut not free speech that it paid for by the corporations and spoken on behalf of the corporation. Corporations have a narrow view of cause and effect. Their visions are computer driven, not reality driven.
It’s not that the free speech of the shareholders is funded by the corporation. It’s that the shareholders have free speech rights that are not lost when the corporation acts on behalf of the shareholders.
Why should corporations be content with contributing money? Why not run the government directly? Murray Hill Incorporated wants to do just that, and has announced its campaign for Congress. Check out the announcement on YouTube at http://www.murrayhillincforcon… It’s beautifully done.
I like that Eric Hensal is the designated human for the corporation. I wonder what software the computer used to determine he was the best choice.
but I still think the issue hinges on “equal protection.”
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p>It doesn’t matter if a dog can speak intelligibly. There are people who cannot speak intelligbly because they can’t physically speak or because they are too mentally disabled to do so. Yet these people are afforded free speech rights (even if they can’t use them) because they receive equal protection under the law. A dog doesn’t receive equal protection under the law.
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p>I haven’t read the Citizens United decision, but the First Amendment is guaranteed to legal “persons,” a status that courts have found extended to corporations and organizations.
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p>Is there a reason why corporations and organizations shouldn’t be afforded some constitutional rights, but not others? Corporations can’t vote. IBM can’t marry Jennifer Aniston, even though she’s single. Our proverbial dogs can’t tie the knot either.
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p>It’s an interesting question, I think.
…with this line:
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p>”There are people who cannot speak intelligbly because they can’t physically speak or because they are too mentally disabled to do so.”
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p>I was thinking along the lines of can’t speak intelligbly because all they listen too are Fox News and talk radio!:)
First, I don’t agree with you that First Amendment rights are based on “equal protection.” Among other things, “equal protection” was not part of the Constitution until the 14th Amendment was ratified after the Civil War.
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p>Second, the point that started off this whole discussion is that the First Amendment does not limit its protections to “persons.” It simply says that “Congress shall make no law” abridging certain freedoms. Who is entitled to exercise those freedoms, and how far they extend, is left unexplained.
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p>As for this:
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p>One place to start is the language of the Constitution. Read through the various amendments under discussion, and notice which rights are guaranteed to “persons” (e.g., due process; equal protection; search and seizure; self-incrimination), and which are not restricted in that way (e.g., speech, press, cruel and unusual punishment, seizure of private property). It’s food for thought.
I think your second point is crucially important. The very same sentence that says that Congress “shall make no law…abridging the freedom of speech” also says “or the right of the people peaceably to assemble.”
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p>Given the historical context, I think it’s a stretch to argue that the ratifiers of this amendment felt that the freedom of speech of those assemblies could be abridged. Instead, it seems clear enough to me that the intent was that individuals, groups, and the press were all treated as part of the same rubric. Although I suppose a “corporation” could somehow be excluded from the set of other protected assemblies, I think that would be a stretch.
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p>As distasteful as I find the Citizens United ruling, it looks to me as though better avenues might be to address the relationship between money and “speech” and to address the regulation of even protected speech.
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p>We have a long and well-respected tradition supporting the rightfulness of government regulating (as opposed to abridging) free speech, as in the fire-in-a-crowded-theater example. It seems to me that corporate (mis-)behavior that concerns us could fall into a similar category.
that the right to form corporations is not included in the First Amendment’s guarantee of the right of the people “peaceably to assemble.” Do you really think that it would be a constitutional violation for every state to repeal its statutes that permit the creation of corporations? I don’t.
I’m not talking about a state repealing its statutes. Are you equally confident that an attempt to outlaw corporations would pass constitutional muster?
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p>It seems to me that the various statutes in question are constitutional mechanisms that aim to regulate behavior that all agree is protected.
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p>Not to mention that we again come to this platonic essence question — suppose states were to repeal those statutes (but not attempt to outlaw corporations). It seems to me that groups of individuals would still likely form with the purpose of cooperating to their mutual economic benefit. Even if the statutes were repealed, those corporate entities would still exist. Massachusetts is populated by numerous businesses whose corporate charters have been revoked (for a variety of reasons) and who nevertheless continue to business as they’ve always done.
There might be problems with the Contract Clause, Due Process, Takings Clause, etc. But the First Amendment? I don’t see it.
I don’t presume to second-guess your legal expertise, I’m only attempting to build on your observation up-thread.
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p>It seems to me that groups of individuals will organize to do business whether or not the government regulates them. I conclude, therefore, that “corporations” will exist with or without a formal legal framework. I also think it will be well-nigh impossible to outlaw such organizations, whether or not on First Amendment grounds.
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p>Therefore, I suggest that our efforts will be more constructive if we focus on the behavior of corporations, and explore the consequences on that behavior of whatever regulatory environment we put around them. Currently, we give them essentially unlimited freedom to “speak” (whatever THAT means), while simultaneously requiring them to place immediate financial gain at the very top of their responsibilities. That, to me, seems like a prescription for the antisocial and even sociopathic behavior we observe.
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p>Suppose a parent ordered their child to do anything within his or her power to bring home money each day, and vigorously beat that child each day he or she came home empty-handed. Would we blame the child, the parent, or both when school authorities caught the child beating up classmates to steal their lunch money?
I’ve never taken a law class and don’t really know how to read law other than by reading it. But I enjoy trying to figure it out and think about it.
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p>If the First Amendment takes precedence over the 14th Amendment, my question is, was free speech afforded to blacks and women prior to it? Does that matter?
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p>Also, Amendments 4 and 5 seem to apply only to people. Does that mean these rights only protect individuals people?
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p>If my thinking is too far off base, or you get bored with it, that’s okay. You don’t need to keep responding. I’m just trying to learn a bit.
The First Amendment doesn’t “take precedence” over the 14th. My point was simply that it was in place decades before the 14th, and I don’t think its interpretation changed as a result of the 14th being adopted (except insofar as the 14th was ultimately held to have extended the 1st Amendment to the states, whereas previously it applied only to the federal government).
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p>Also, note that the 14th amendment didn’t originally do all that much for women, since in order to give women the vote it was necessary to adopt the 19th amendment.
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p>Look again at Amendments 4 and 5. One interesting thing there is that, while many of those protections apply only to “people,” one critical one — the prohibition on government seizure of private property without paying just compensation — is not limited in that way.