A Victory for Free Speech or a Victory for Fascism?

by Will Wilkinson on January 22, 2010

The anguished cries of left-leaning folk over the Citizens United ruling seem to me to be emanating from an alternate universe, so bizarre are they. This was a case about whether the state can suppress the distribution of an unflattering documentary about a powerful political candidate produced by a small group of private citizens. The crazy thing to me is that anyone ever thought that such a rule was not in blatant violation of the First Amendment. The extra-crazy thing is that four Supreme Court justices evidently think this kind of state censorship of political speech is hunky dory. I’m going to chalk up some of the freakout to this week’s spectacular pileup of disasters for progressives. Sorry guys. I know it’s been rough. But I have to say I was taken aback by the vehemence with which people I like and admire have insisted that the state must selectively silence political speech. I didn’t realize that this was such a profound point of disagreement. As I see it, these regulations have accomplished very little other than to protect the interests of powerful, entrenched incumbent politicians against public criticism.

I’m tempted to conclude that the divide between progressives and ACLU-style civil libertarians on this issue has to do with differences in our conceptions of the relationship between equality of democratic voice and the legitimacy of democratic elections. But I’m not sure that’s right. I suspect the real issue is more an empirical one about the actual balance of power with or without this kind of regulation. I see this ruling as vindicating the importance of equality of voice by protecting the rights of individuals and associations to speak out on behalf of their interests and values. Progressives clearly see the ruling primarily as some kind of corporate-empowerment initiative. But you can’t really take on Big Agra or Wall Street unless you can organize to speak out against the Chuck Grassleys and Chuck Schumers when it really counts.

I wonder how we could go about gather evidence about the distribution of political power. I suppose coming to some agreement about what counts as political power would be the first step in settling the dispute.

Anyway, I think Tim Lee and Matt Welch are making a lot of sense.

  • pithlord
    lxm,

    I agree that shareholder democracy is basically meaningless for large commercial widely-traded firms, but that hardly matters. Large commercial widely-traded corporations are highly unlikely to engage directly in controversial political speech, since that can only piss off potential customers and shareholders. But if they do, then those customers, shareholders and (at greater cost, to be sure) employees can dissasociate themselves from it.

    The point is that if free speech is to mean anything, then it means that people can organize to say things we don't like.
  • pithlord
    Lefties should note that the right to corporate speech was established with respect to the National Association for the Advancement of Colored People.

    If individuals have a right to speech and a right to associate, then their associations have to have a right to speech. Whether the association is organized as a limited liability corporation is irrelevant.

    Saying that the right to create organizations is a privilege in the absolute discretion of the government is a lot worse than banning this documentary.
  • lxm
    There's no question that the ruling is based on sound legal reasoning. There is some question about its wisdom.

    While the argument based on people's right to associate sounds nice, it doesn't fit the picture of a corporation. A large corporation doesn't even know moment to moment who owns it and probably doesn't care. Large public corporations are not responsive to their owners.

    Stuart Taylor, who is no "leftie" says it better here: http://www.newsweek.com/id/232166
  • johndewey
    lxm: "Large public corporations are not responsive to their owners."

    I believe that to be an irrelevant issue, but I feel I must respond anyway.

    Having twice been in positions where I helped large public corporations respond directly to their owners, I know that statement is not true. Officers of major corporations spend large amounts of time and money responding to the owners of those corporations. It is true that a single large individual owner receives more response than any single small owner. But collectively, the small owners - through their buying decisions - exert great influence on the officers of most large corporations.
  • johndewey
    lxm,

    The ruling is about the right of the individual citizen to hear and read the speech of whomever he chooses - whether the speaker be another individual, a small organization, or a large organization. It's the speech which is being protected, not the speaker. The First Amendment protects Americans from a powerful government which would determine what content we would read or hear. McCain-Feingold was an egregious violation of that protection from a powerful government.
  • lxm
    This small group of individuals could have organized without using the corporate form. They could have produced their ad and aired it. Corporate form was not needed for their speech or your hearing it. Therefore, the ruling is about what constraints the government can impose on corporations and not about free speech. It's only framed as a free speech issue.

    Why did these speakers need the protections of the corporate form? Why did they need limited liability and the anonymity that the corporate form can provide? Why couldn't they take full responsibility for their words and act like citizens? They had no problem attacking a citizen.

    Is your argument that the only way individuals can organize and speak is to use the corporate form and, without the corporate form these individuals are muzzled?
  • johndewey
    lxm,

    It doesn't matter what the speakers could have done. It doesn't matter whether other avenues for speaking were available. The First Amendment says that:

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech ,,,"

    There's no exception written in there. Congress cannot prevent me, the citizen, from reading or hearing what is written by individuals, by churches, by unions, by non-profit organizations, by profit-seeking organizations, by the Ku Klux Klan, by the NAACP. No exceptions. Scalia made exactly this point.

    Congress cannot censor the speech I may read or write, regardless of the form in which it is presented and regardless of the source of that speech. It's very simple.
  • Jason, if I may. I think there are a few points worth clarifying here. First, as I understand it, at least, what is/was at issue was not a corporation 'claiming a constitutional right to free speech' (and so, the question of on which basis it made that claim is not relevant), but rather whether (certain specified, both in terms of subject matter and timeliness) speech of individuals must be protected when that speech is funded by the corporation of which they are a part. Now this also relates to a second point: given that the 'right' in question is a constitutional one (1st Amendment), rather than among the three broad, putatively inalienable, rights appealed to by Jefferson in the Declaration of Independence, the question of which, if any creator, endowed those individuals with that right, needn't arise.
  • The whole 'corporations are not flesh and blood persons' is indeed ontologically and legally confused. No one (no one party to the SCOTUS debate, certainly) actually believes corporations ARE persons. Rather, it is that we have good social-legal reasons for wanting associations of people (i.e. corporations) to enjoy SOME of the same legal rights enjoyed by the individual people that comprise them. Appealing to the 'absurdity' of 'elevating corporations to the status of people' does not advance the current debate, it merely clutters it.
  • Jason M.
    If, as you say, no one actually believes or argues that corporations are persons, then on what basis can a corporation claim the Constitutional right to free speech? Who is the "creator" that endowed them with this inalienable right? Joining/forming a corporation doesn't negate the prior inherent freedom of speech of it's constituent members; it supplements and aplifies them by creating an extra, out-of-body voice. What is so sacred and involiable about a megaphone that it deserves the "right" to free speech?
  • johndewey
    Jason M,

    I think you are misinterpreting the meaning of the First Amendment. Free speech is a ban on censorship. It protects the right of the citizen to hear whatever speech he wishes to hear and to decide for himself which speech is worthy of his consideration. The First Amendment is protecting the listener from censorship. It protects all of us from a government which would decide which speech we should be allowed to read and hear.

    Reverse your perspective, Jason. Consider free speech as a right of the citizen to be free from a powerful government which would control what he may hear or read. It's a precious right - perhaps our most precious.



  • Are you saying that constitutionally speaking, the government can ban the use of megaphones for speech? Even if it's at an event all of whose attendees showed up in the expectation that they would hear speech from a megaphone?
  • Jason M.
    I'm not a Constitutional scholar, but i assume that the freedom of association and freedom of the press are enough to, at the very least, intimate that the Government should not be able to take away your megaphone. So horray freedom of speech!

    So now I'll go down to the public square to voice my opposition to the ideas put forward by this other group attending - but now no one can hear me...hell, I can't even hear my own voice, since the other group is blasting away with it's mighty consolidated megaphone. Hey, it's a free country - I'll just gather up some individuals who share the same views I do on this particular issue, and we'll bring to bear our own megaphone. Sure our message is a bit more dumbed down, simplistic and single-minded than when it was just me, Joe Citizen, but now my voice has power behind it. And, if need be, we can always further consolidate, further simplify, and further amplify our megaphone.

    Now behold our glorious public square. How awesome the sight and sound of monstrously huge megaphones blaring slogans at each other! What beautifully democratic noise they make! Look how the crowds of unincorporated flee the public square, their ears bleeding and numb!

    How do we sustain a liberal democracy this way?
  • At the present time, we do not have Chief Literary Critics & Rhetoricians tasked with guarding the quality of our discourse. Sad as it may be, it is the task of the audience to sample all it may and decide what is worth listening to. Hence Paul Blart: Mall Cop and Beverly Hills Chihuahua.

    If megaphones were literally & physically damaging your ears, I think you would have grounds for a tort. However, that would not be the case if they were merely saying things you found stupid & simplistic. "Ho Chi Minh has got to win!"

    Liberalism and democracy are in tension. Personally, I prefer liberalism to democracy. Wilkinson would say that makes me a rather illiberal liberal.
  • UnderTheHedgeWeGo
    Let me, for a moment, drag the conversation into the everyday world. Let’s consider one example of the laws enacted to benefit Congress’s corporate overlords at the expense of actual flesh and blood citizens. Congress enacted a prescription drug benefit for Medicare recipients which prohibits price negotiations with pharmaceutical companies. In what world, other than one controlled by the concentrated application of pharmaceutical money, could such law be enacted? Simultaneously, a law is passed that prohibits me, an American citizen, from buying medications from foreign sources (for my own good of course). By what “right” do pharmaceutical companies buy legislative influence to subvert the common good? Both of these laws directly benefit drug companies and directly harm millions of Americans.
    Allowing corporations to contribute unlimited resources to political campaigns does not just give them a place at the table; the wealth and power of corporations will insure that citizens will be relegated to picking up table scraps as they fall.
    Why not just abolish the concept of graft. Why not just openly put votes up for sale? Let’s have corporate representatives sitting in congressional galleries with checkbooks open bidding for votes.
    Laws, at their base, should be fair and reasonable, and, one might argue, promote the common good. To say corporations have all of the rights of individual citizens, is equivalent to handing the power to govern over to a couple of hundred “individuals”. And, those individuals need not be American citizens. Saudi Oil, even Afghan drug lords have the “right” (if they execute the simple act of forming a corporation in one of the states of the United States) to contribute unlimited resource to political campaigns.
    How the Supreme Court should have ruled could be argued from many points of view. It is certainly not obvious they had to rule as they did (four Justices say so). I would claim the real world effects of this ruling should be given least equal consideration to the various intellectual arguments for the ruling.
    This ruling is a disaster for democracy and the American People.
  • TomDegan
    Are corporations really persons?

    Do corporations think?

    Do corporations grieve when a loved one dies as a result of a lack of adequate health care?

    If a corporation ever committed an unspeakable crime against the American people, could IT be sent to federal prison? (Note the operative word here: "It")

    Has a corporation ever given its life for its country?

    Has a corporation ever been killed in an accident as the result of a design flaw in the automobile it was driving?

    Has a corporation ever written a novel that inspired millions?

    Has a corporation ever risked its life by climbing a ladder to save a child from a burning house?

    Has a corporation ever won an Oscar? Or an Emmy? Or the Nobel Peace Prize? Or the Pulitzer Prize in Biography?

    Has a corporation ever been shot and killed by someone who was using an illegal and unregistered gun?

    Has a corporation ever paused to reflect upon the simple beauty of an autumn sunset or a brilliant winter moon rising on the horizon?

    If a tree falls in the forest, does it make a noise if there are no corporations there to hear it?

    Should corporations kiss on the first date?

    Our lives - yours and mine - have more worth than any corporation. To say that the Supreme Court made a awful decision on Thursday is an understatement. Not only is it an obscene ruling - it's an insult to our humanity.

    http://www.tomdegan.blogspot.com

    Tom Degan
    Goshen, NY
  • In a phrase: freedom of association. If people in their joint organisations are not protected by legal rights, then their rights are attenuated because they only apply as solitary individuals.

    Given that, as has been noted, no one thinks corporations are natural persons, merely legal ones, this seems to be just a rationalisation of the dislike I previously noted of being "equated" with those awful corporations (selectively defined).
  • Jason M.
    My objection to the anthropomorphization of corporations isn't based on any one particular behavioral description (Goldman Sachs is "greedy", the ACLU is "zealous", etc.), since they are operated by human beings. But with the possible exception of some little LLCs comprising of a single individual, corporations cannot mimic the broad range of emotions, the depth of intellect of any of it's constituent members.

    The aggregation of of it's members is for the purpose of consolidating a single (or at least a very narrow set of) priority - typically profit (hence the anthropomorphic tag "greedy"), but also advocacy, charity, etc. The consolidated purpose of the ACLU or the Sierra Club may be ones I personally would consider more "noble" than that of Xe or Halliburton, but I wouldn't presume them to be more "human-like" than any for-profit corporation. We all know individuals who place a high priority on accumulating wealth, or really care about environmental degredation, or the 2nd Admendment, or abortion...but do you know any individuals that are so single-minded that they pursue these interests to the exclusion of all other considerations?

    Imagine if human beings really were the "single-issue voter" they are occasionally (and wrongly) labeled as by pundits. How could any liberal democracy function with such a citizenry?
  • Paul Zrimsek
    Are corporations capable of being greedy, wealthy, heartless, or arrogant? I do believe I've heard them described in these terms in the past, and by people who probably join you in deploring the anthropomorphization they perceive (rightly or wrongly) in this ruling.
  • Jason M.
    My objection to the anthropomorphization of corporations isn't based on any one particular behavioral description (Goldman Sachs is "greedy", the ACLU is "zealous", etc.), since they are operated by human beings. But with the possible exception of some little LLCs comprising of a single individual, corporations cannot mimic the broad range of emotions, the depth of intellect of any of it's constituent members.

    The aggregation of of it's members is for the purpose of consolidating a single (or at least a very narrow set of) priority - typically profit (hence the anthropomorphic tag "greedy"), but also advocacy, charity, etc. The consolidated purpose of the ACLU or the Sierra Club may be ones I personally would consider more "noble" than that of Xe or Halliburton, but I wouldn't presume them to be more "human-like" than any for-profit corporation. We all know individuals who place a high priority on accumulating wealth, or really care about environmental degredation, or the 2nd Admendment, or abortion...but do you know any individuals that are so single-minded that they pursue these interests to the exclusion of all other considerations?

    Imagine if human beings really were the "single-issue voter" they are occasionally (and wrongly) labeled as by pundits. How could any liberal democracy function with such a citizenry?
  • Jason M.
    Will,

    A couple questions from a denizen of the alternate Left-O-verse:

    1. Do you believe a corporation is/should be regarded, under the law, as a person, with all the requisite rights and protections granted to flesh and blood citizens?

    2. If yes, do you believe a corporate citizen engages in politics with the same broad spectrum of goals and biases as their individual homo sapien counterparts?

    3. All things being equal (including the amount of money spent), do you believe the political power of the corporate citizen and the private citizen to be equal/symmetrical? (could even Bill Gates ever be "too big to fail"?)

    4. Do you believe the amount of corporate rent-seeking in Federal, State, and local governments will increase or decrease in the decade to follow this Supreme Court ruling?

    Of course, if you say yes to #1, then your suppport for this decision is perfectly consistent with (small "l") liberal values. But that also leads to question regarding the full breadth of rights and responsibilities of this Corporate person; Can it cast votes? Can it run for and hold political office? Is it eligible for Selective Service? Can it legally "own" (slavery?) another Corporate person?
  • Your question is disingenuous. Do know of anyone who believes "a corporation is/should be regarded, under the law, as a person, with all the requisite rights and protections granted to flesh and blood citizens?" Do know of anyone who believes "corporate persons" can/should cast votes, run for political office, etc.?

    Or are you just creating a convenient and distracting strawman entirely in your own mind?
  • Jason M.
    That wasn't my intention, but that's my fault for not communicating my philosophical interest in exploring the idea of corporate rights, as opposed to the more legalistic interest being expressed overwhelmingly by others here and all over the blogosphere. If, like most of the commenters, you're only interested in "is it legal?", then I wave the white flag. The Supreme Court "got it right" in this particular case, however inelegant their reasoning.

    I'm more interested in the implications of the asymmetrical power corporations (yes even the "good ones" like the ACLU, Sierra Club, etc.) hold over regular citizens whose right to free speech they share, and the tut-tutting that "corporations are [made up of] people too" does little to assuage my fear that their effect on politics (and other spheres) is a net negative. My doubts should be familiar enough with libertarians if you simply replaced the word "corporation" with "government", as libertarians have long recognized that governments have an inertia, with net effects that can't simply be accounted by the interests and motives of the people "in charge" of government. I believe the same is true of corporations, and I am interested in Will's take on this, since his post expressed an interest in figuring out what constitutes political power.
  • Garrett J
    I've been trying to wrap my head around the progressive reaction and from my own personal libertarian standpoint the best I can come up with is that many progressives tend to have their understanding of free speech interwoven with their views on equality. I've heard so many progressives make the "one man, one vote is now one dollar, one vote" comment that I can't help but think that the political equality of individuals has been extended to speech. After all, if there was no fear of the power of corporate speech, none of these restrictions would have ever been passed in the first place. But viewing speech through a framework of equality is a dangerous game that will always result in censorship, as there will always be speakers with more power than others to spread their messages.

    The concept of "the marketplace of ideas" has always been based on the notion that freedom will give the best speech the opportunity to win out, regardless of the volume of the speaker.
  • UnderTheHedgeWeGo
    Let me, for a moment, drag the conversation into the real world. Let’s consider one example of the laws enacted to benefit Congress’s corporate overlords at the expense of citizens. Congress enacted a prescription drug benefit for Medicare recipients which prohibits price negotiations with pharmaceutical companies. In what world, other than one controlled by the concentrated application of pharmaceutical money, could such law be enacted? Simultaneously, a law is passed that prohibits me, an American citizen, from buying medications from foreign sources (for my own good of course). By what “right” do pharmaceutical companies buy legislative influence to subvert the common good? Why not just abolish the concept of graft. Why not just openly put votes up for sale? Let’s have corporate representatives sitting in the gallery with checkbooks bidding for votes.

    Laws, at their base, should be fair and reasonable, and, one might argue, promote the common good. To say corporations have all of the rights of individual citizens, is equivalent to handing the power to govern over to a couple of hundred “individuals”. And, those individuals need not be American citizens. Saudi oil, even Afghan drug lords have the “right” (if they perform he simple act of forming a corporation in one of the states of the United States) to contribute unlimited resource to political campaigns.
    How and why the Supreme Court should have ruled could be argued from many points of view. It is certainly not obvious they had to rule as they did (four Justices say so). The real world effects of the ruling should be given at least equal consideration with the various intellectual arguments. This ruling is a disaster for democracy and the American People.
  • Hmmm. Okay. First, you're a wee bit short on the shrift you give to the common intuition that corporate sponsorship of candidates can have a corrupting influence on politics. And it's hardly an intuition confined to the loony left, or even just the left; rather, it clearly has roots that stretch back to ideas ambient in the understanding of the founding era.* Moreover, the intuition should jibe with certain libertarian intuitions about the problem of capture.

    Second, your characterization about what Citizens United is "about" is misleading. Supreme Court cases are rarely only about the particular controversy in question. (If they were, few would pay much attention to the what the Supreme Court did.) Rather, they are about the consequences that flow from the holding, and from the reasoning the Court uses to reach that holding. Here, the Court's reasoning is very broad (and not terribly judicially "conservative"); the case effectively forecloses any meaningful restrictions on corporate speech. I understand that you think this is a good thing, and I think that's a reasonable position to take. What's not reasonable is to pretend that Citizens United is much ado about little. Some of the reaction may be overwrought (especially given the Court's trend on this issue). But that doesn't mean this isn't a big deal. It is.

    *For example, the radical Thomas Jefferson wrote of his hope that "we shall . . . crush . . . the aristocracy of our monied corporations which dare already to challenge our government to a trial by strength and ... bid defiance to the laws of our country."
  • Name
    Mr. Willkinson,

    You will go down in history as one of those people who "just didn't get it." It is incredibly and amazingly naive to think that this is a victory for free speech. A constitutional amendment recognizing corporations as not being human (no singular brain or heart) would have been more in lines with American democratic values. That's the direction this country needs to go. Look, I'm sure things are nice at the Cato Institute, but free marketeers WRECKED the world economy. Now they are able to contribute as much as they want whenever they want. Do you honestly believe that this is going to give the VAST majority of Americans that are not part of corporations a greater voice? If so, you need to really step out of Cato every once and a while.

    Yes, the case was about a documentary--the ruling was about the future of electoral politics in America. And it's not just "left-liberals" who are enraged by this. It is the entire country that is suffering as a result of the decisions made by members of the Wall St class who were making decisions in government over the last twenty years.

    I do agree that we should redefine free speech and citizenhood. In an increasingly populated, diverse, and fragmented world, organizations should not have more "free speech" because they have more money. Is that really a controversial belief?
  • Sarah
    It really looks to me, uneducated as I am about the law, like a free speech issue. Especially since the money in question was used to make a documentary, which is obviously a form of communication that's political in nature.

    I'm upset about the result for purely instrumental and partisan reasons. I lean Democrat, and Republicans have closer ties to business. This ruling could make 2010 and 2012 look pretty scary. I suspect that this is why progressives are bothered, and I don't think it's some kind of unsavory motivation; it's worrisome when, by a sudden judicial decision, a big chunk of political power is handed to the other side.
  • LJM
    I'm actually not sure that "Republicans have closer ties to business." Democratic policies have, for many years, been very corporatist.
  • lxm
    Actually that's exactly the point.

    Add more money to the mix and we will have even more corporatists (is that a word?) making believe they are representing the people who elected them.

    Who will be left to represent the people? And what type of country is it called that's run by the corporations and for the corporations.

    Why libertarians are insensitive to this issue, is incomprehensible to me.

    How can you do a John Galt if the whole world is run by the phone company?
  • Libertarians are not insensitive to the issue of corporatism - at least left-libertarians aren't. See Roderick Long's piece on corporatism in our blog host's very own Cato Unbound. Even right-libertarians are fond of pointing out that corporatism is an unavoidable result of government intervening in the economy. The only way to get money out of politics is to get politics out of the economy.

    And the country is already run by and for corporations, this is nothing new. This decision will do little to change the status quo; hopefully, it will make things more transparent, since now corporations and other wealthy interest groups no longer need to hide behind front groups and can come out and spend explicitly.

    Here is a blogpost "listing the 100 corporations with the largest contributions to political campaigns between 1989 and 2009, as well as the direction of their donations (to the left or right). " The takeaway:

    At last as far as these top 100 are concerned, it doesn’t appear that there is an overwhelming preference for Republicans, as one might expect. Then again, a lot of these are unions.

    But what does it mean when corporations and unions are sitting “on the fence”? Basically it means that they’re covering their bases. They win influence whether Republicans or Democrats end up in office. Interestingly, 46 of the 100 are on the fence. This doesn’t mean that things are somehow more fair or balanced, it means that, no matter who wins, corporations and unions win.


    Don't like corporations and unions having such a huge say in how government is run? Reduce the size and scope of government (preferably to zero).
  • Sarah
    To be fair I should note:

    if your main concern were to prevent imminent Republican election victories, it would be in your interest to prevent as much political speech as you could. The more people argue about politics, the more dangerous for incumbents.

    That's why I think it's dangerous to let my own thoughts on free speech be too controlled by my partisan instincts. Because for the near future, a lot of political speech is going to be by people I don't like, fighting to undermine what I care about. To me, now, "grassroots activism" conjures scary visions of the other side, as does "protest," "citizen campaign," and "internet politics." Liberals are now in a position where it's tempting to hate free speech itself, and associate it with a ravening tea-party mob. It's time to grit our teeth and remember Voltaire.
  • adexterc
    The SCOTUS robbed me of my speech by putting a "person" with a power megaphone beside me and allowing the volume turned up high. And how do you feel about Hugo Chavez controlling CITGO's choice of candidate to support?
  • Paul Zrimsek
    Pretty much the same way I felt about the Guardian's attempt to influence the 2004 election with its silly letter-writing campaign. I expect Hugo to enjoy about the same level of success.
  • william_b
    Adam: I think a narrower ruling would have been seen as acceptable too; it's the broadening of corporate personhood that is most bothersome.
    I recommend CJ. Roberts's concurring opinion on the question. The majority believes that every challenge short of the facial constitutional challenge fails.

    Will: You write, The crazy thing to me is that anyone ever thought that such a rule was not in blatant violation of the First Amendment.

    J. Stevens writes, in dissent,

    "The Government routinelyplaces special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees. When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems."

    Stevens also emphasizes that the section declared unconstitutional under this ruling was not a "ban" on speech by corporations, since corporations can still say whatever they want by setting up PACs.

    So it's not quite so bad as all that.

    That said, I agree that the majority makes a much better argument. Stevens complains, inter alia, about the violation of stare decisis, a claim which Roberts demolishes and which is ludicrous when you consider that Scalia and Kennedy opposed the original decision in Austin.

    While I think you and the Supreme Court are right on this issue, like every 5-4 Supreme Court case, it's not true that it's easily decidable on some single principle.
  • Adam: the legal personhood of corporations is very old. The name comes from the Latin 'corpora' as in 'body' or 'body of people'. It has always been about people organising for some common purpose and corporations in their origins were very much about protecting rights.

    Trevor: the NYT is being historically illiterate. The University of Oxford is a corporation, one of the first. It came into existence to protect students and teachers from the authority of the borough of Oxford. Moreover, corporations are no more 'creations of the state' than anything that has to be legally registered.

    More generally, a lot of this is about the politics of not being polluted by vulgar commerce. If you define yourself in that way, then corporations (the ones that openly are about making money, not all the other things which are also corporations) are, of course, noxious moral sinks. It is therefore an insult to imply they have any equality with the virtuous.
  • adam
    Well, as a liberal I'd say that part of this is definitely a dissatisfaction with the past week (the Brown thing causing senate dems to fall like lilies, and this).

    But it seems like you either are not making an effort to understand the reasoning of the other side or are just unaware of it? Because there's a two basic ideas that make liberals freaking out make more sense:

    (1) The idea that money = speech is controversial and many liberals think this is bollocks
    (2) The idea of corporate personhood is, again, considered nonsensical

    If you accept that some people believe these ideas, doesn't the freakout kind of make sense? I mean, I don't think people are against a group of individuals getting together and putting out a movie, per se. Rather, it's the idea that Bank of America will put out a political movie. If everyone at BofA was donating their money towards this, that would be one thing; if BofA uses its operating profits to produce it, that would be something else.

    I think a narrower ruling would have been seen as acceptable too; it's the broadening of corporate personhood that is most bothersome.

    See, if you understand the other side, it's not so surprising is it? Let's not all pretend like our own view has some special access to underlying realities that the other half of the country doesn't have.
  • LJM
    Glenn Greenwald puts it very well when he points out that none of the justices suggest that corporations are people, even the dissenters who only cite "a compelling state interest" (an inherently troubling justification for any restriction of freedom).

    As far as money not equaling speech, Greenwald nails it again when he says:

    "Anyone who believes that would have to say that there's no First Amendment problem with any law that restricts the spending of money for political purposes, such as:

    "It shall be illegal for anyone to spend money to criticize laws enacted by the Congress; all citizens shall still be free to express their views on such laws, provided no money is spent;" or

    "It shall be illegal for anyone to spend money advocating Constitutional rights for accused terrorists; all citizens shall still be free to express their views on such matters, provided no money is spent"; or

    "It shall be illegal for anyone to spend money promoting a candidate not registered with either the Democratic or Republican Party; all citizens shall still be free to advocate for such candidates, provided no money is spent."

    Anyone who actually believes that "money is not speech" would have to believe that such laws are necessarily permitted by the First Amendment (since they merely restrict the expenditure of money, which is not speech).

    Do you actually believe that? I don't even find that argument sufficiently coherent to warrant much discussion.

    It would be like saying: "No person shall be permitted to use a megaphone or television outlet to advocate liberal views -- there's no First Amendment problem: megaphones and television outlets are just 'property, not speech'."
  • James K
    Exactly so. Money isn't speech, but it can be a necessary condition for speech. That means restricting it restricts speech.

    As for corporate personhood, if you restrict what a corporation can do, you restrict what its owners can do. Either way you get back to people.
  • Lizzaroni
    I think saying that "money=speech" is oversimplifying what is really just a very small part of the argument. It's more like, money - be it in the form of donating or spending on an advertisement or anything else - is expressive and associative, and thus protected under the First Amendment.
  • sorry
    re #2, i am going to simply copy and paste something from an IOZ commenter:

    "This ontological debate about whether corporations can or cannot be persons is a nostalgia trip. Parmenides-Democritus cage match! But since it is a commonplace of our political savants that the will and desires of The American People can be measured and characterized as if it were human (the better to rationalize a national "representative" government), I don't see how they can complain when the same principle is applied to far smaller and more top-down entities like corporations. Did I somehow miss the rabble burning copies of Hobbes's Leviathan in the public square?"

    sorry, original author. i don't have time to say my own thing and what you said was pretty on point with my thoughts. i owe you a beer, may karma direct it your way.
  • Rhayader
    Yeah I agree about both Tim Lee and Matt Welch, they both had very cogent responses. The only possible objection here isn't about Constitutionality at all -- it's derived from the ends-over-means cynicism embraced during all political bickering. Progressives aren't mad because they legitimately see a conflict with the Constitution or with precedent; they're mad because they believe this will hurt their side.

    And hey, they're hardly alone in taking that sort of outlook on an issue. But I think the court -- narrowly -- made the right decision given its charge, which is to uphold the Constitution, not to maintain a rigid distance between corporations and consumers.
  • I was struck by the claim in the NYT editorial (http://www.nytimes.com/2010/01/22/opinion/22fri...) that "companies are creations of the state that exist to make money." What's your take?
  • I'm not comfortable with that specific formulation. But corporations ARE state-chartered organizations that are given special privileges in regards to liability. They exist because we have decided that we like the sorts of goods and services that can be delivered by the aggregations of capital that such privileges facilitate. If the corporation owes its existence to the state, does it subsequently mean that regulating its speech is hunky-dory?

    I'm conflicted. Normally, I'd say that a state-chartered organization would have to live with whatever regulations the state sees fit to attach to the privileges. However, I'm not really comfortable with saying that media corporations that publish newspapers and websites and produce movies and television shows, don't have any 1st Amendment protection.

    Another thing to consider: Those corporations that are chartered in such a way as to receive favorable tax treatment ("non-profits") are expressly forbidden from any political advocacy. If the regulation of the speech of these (lets call them) "corporations plus" is okay, why wouldn't regulation of the speech of the "vanilla corporation" be okay? Both are receiving benefits from the state. Just thinking out loud...
  • johndewey
    Matt,

    As I understand it, non-profits were not prohibited from political advocacy until 1954. In that year, Lyndon Johnson became fed up with non-profit organizations which opposed his reelection and used his power to change the tax code. As I see it, preventing elected officials from such action is exactly why the First Amendment exists. I do not understand why such a law has not been successfully challenged.

    What is particularly outrageous is that the tax code has been used to silence churches. Our constitution very clearly calls for protecting religion from our government. It also prohibits restrictions on free speech. Yet our legislative branch has been allowed to use the threat of taxation to restrict the speech of churches.



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