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Thursday, January 21, 2010

A victory for free speech 


The Supreme Court decides, correctly, that the phrase "Congress shall make no law ... abridging the freedom of speech" actually means what it says.

The Supreme Court has ruled that corporations may spend freely to support or oppose candidates for president and Congress, easing decades-old limits on their participation in federal campaigns.

By a 5-4 vote, the court on Thursday overturned a 20-year-old ruling that said corporations can be prohibited from using money from their general treasuries to pay for campaign ads. The decision, which almost certainly will also allow labor unions to participate more freely in campaigns, threatens similar limits imposed by 24 states.

Good. No constituency, not even businesses or labor unions -- hey, fair is fair -- should be forbidden to respond when defamed by ambitious politicians. Allowing such organizations to express opinions again should, at least, make politicians on both left and right (as the case may be) more reluctant to demonize them.

If you want to get money out of politics, make far less money flow through, or only by permission of, the government.

MORE: SCOTUSblog "live blog" here, text of the opinion here.

STILL MORE: A couple of commenters have raised an old question one predictably hears from people who want to go after corporations and are frustrated by Constitutional restraints: That the rights in the Constitution should not apply to corporate persons, only natural born individuals. As I wrote in a responsive comment below, presumably such people do not believe that the protections of the First Amendment should apply to the New York Times Company, or that the government should be free to take the property of corporations without due process of law or just compensation, or that the police should be able to search and seize the property of corporations without a warrant issued upon probable cause. Strange ideas from purported liberals, who would no doubt explode with rage when the target is the Sierra Club of the National Organization of Women or the United Auto Workers rather than a Fortune 500 business corporation. More on that subject at Volokh, particularly on the confusing notion that freedom of the "press" protects such corporations even when freedom of speech does not.

CWCID: SCOTUSblog links via Glenn.

30 Comments:

By Anonymous Anonymous, at Thu Jan 21, 11:01:00 AM:

You watch- Congress will try to change the definition of a "person" to exclude corporations. Then, speech can be controlled by the state.  

By Blogger Neil Sinhababu, at Thu Jan 21, 11:13:00 AM:

See, I don't get this. Rights are for human individuals. Not for rocks, or pieces of cheese, or corporations. Do corporations get a right to vote now? Do car alarms get freedom of speech?  

By Blogger Neil Sinhababu, at Thu Jan 21, 11:19:00 AM:

I can even get on board with rights for other intelligent creatures, if they're smart enough, or maybe some very minimal rights for anything that can feel pain. (Cruelty to animals is banned for this reason.) But if you ever talk about a corporation having a mind, it's just a metaphor. Their rights should similarly not be taken literally.  

By Blogger bankerinrealife, at Thu Jan 21, 11:47:00 AM:

Neil, in an ideal world, you are absolutely correct. Only individual humans would have the enumerated freedoms, just like only individual humans vote, serve in office, etc.

However, that can only work when the government is small and those serving in the government view their roles in a particularly limited way. FDR's all-out war on private enterprise forever changed that dynamic and created a federal monster that requires private (non court) checks and balances. Corporations provide one check; so do unions, as much as I hate to say it.

Not perfect, but reducing the power of these entities is a capitulation to big government.  

By Blogger Dessert Survivor, at Thu Jan 21, 11:57:00 AM:

"See, I don't get this. Rights are for human individuals. Not for rocks, or pieces of cheese, or corporations."

Corporations are made up of human individuals. If individuals have rights acting alone, why should they not have rights when they act together in groups? Rocks and cheese are not make up of human individuals. See the difference?  

By Blogger TigerHawk, at Thu Jan 21, 12:23:00 PM:

So, Neil, the First Amendment should not apply to the New York Times Company? Interesting theory, but it would require a revolution in American jurisprudence. Or, if you did not mean that, then perhaps you meant that the cops should be able to search and corporation's property without a warrant. Or confiscate its property without due process of law.  

By Anonymous Anonymous, at Thu Jan 21, 12:54:00 PM:

"Or confiscate its property without due process of law."

TH, some would say that certain corporate taxes are doing that now...  

By Blogger Neil Sinhababu, at Thu Jan 21, 01:27:00 PM:

Well, why can't we just regard all the speech involved as being from whatever individual or individuals are doing the speaking? So some person would have to be the speaker in each ad or whatever, and the limits on individual contributions to campaigns would apply? At present, the corporation is a person over and above the individuals composing it, and that's a problem.

Really, there are two revolutions in jurisprudence you could have here. You could get rid of the artificial persons that are corporations. There may be good reasons not to do this. Or you could go the other way and give them all the rights that individuals have (voting, for example). This would be even worse, and I see us lurching towards this second outcome today.  

By Blogger Escort81, at Thu Jan 21, 02:20:00 PM:

Neil, are you saying that it is just that clause of the First Amendment with respect to speech that you believe should apply only to individual people, but that property rights and other rights can be held by groups of people collectively (such as a partnership or corporation)? I imagine if all editorials were signed by an individual person and were not the collective work of an editorial board, that solves a small part of the problem. But wouldn't the newspaper itself (as a collective type of entity) need to have some strength and power to withstand the inevitable attempts by government to intrude?  

By Anonymous Mr. Ed, at Thu Jan 21, 02:36:00 PM:

Now, who is entitled to say hateful things and who will decide what they are?

M.E.  

By Blogger Brian, at Thu Jan 21, 03:35:00 PM:

I suppose the left can now take up the "judicial activism!" protest that the right used to drone on about.
Better would be to just drop the concept though - it was stupid political theater, and never meant seriously by the rightwingers in high places.  

By Anonymous Anonymous, at Thu Jan 21, 04:30:00 PM:

How is this "judicial activism"? This is an example of exactly why the Supreme Court takes on Constitutional cases. They aren't making new law here; they are defending the people against iniquitous intrusions on rights. Very different instances.

What's most frightening to me is that four justices see it as OK to restrain the free speech rights of Americans.  

By Blogger Brian, at Thu Jan 21, 05:35:00 PM:

One man's judicial activism is another man's constitutionalism. Nothing new here.

Meanwhile, per TH's suggestion, I look forward to conservative proposals to drastically reduce the size of the defense budget, as that is an area that's received and will receive an incredible amount of corporate political spending.  

By Blogger Brian, at Thu Jan 21, 05:41:00 PM:

Also worth mentioning that the entire concept of corporations as persons protected under the 14th Amendment is itself a blatant case of judicial activism.  

By Anonymous Anonymous, at Thu Jan 21, 05:48:00 PM:

"One man's judicial activism is another man's constitutionalism. Nothing new here."

Thats just lazy thinking. The two concepts are materially different.

And, as far as ascribing the "entire concept" to "judicial activism" then I suppose you must be referring to Roman law, from whence the concept first arose. Or are you referring to English law, another place where it arose? Or are you merely BS'ing, getting ready to roll 0out that old saw about a "railroad case law court reporter mistake"?  

By Blogger Brian, at Thu Jan 21, 08:52:00 PM:

Anon - you apparently missed my reference to the 14th Amendment. It was judicial activism that turned the Amendment into protection for corporations. No, that doesn't date back to British or Roman law.  

By Blogger randian, at Thu Jan 21, 09:46:00 PM:

It was judicial activism that turned the Amendment into protection for corporations.

English common law treated corporations as persons for centuries before the 14th Amendment. Being successors to the English tradition of law, it is not surprising the Supreme Court held the same.  

By Blogger Dawnfire82, at Thu Jan 21, 09:53:00 PM:

"Also worth mentioning that the entire concept of corporations as persons protected under the 14th Amendment is itself a blatant case of judicial activism."

*ahem* From US Code Title 1, Section 1: "the words "person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;"

From the 14th Amendment, Section 1: "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Note that it says 'person,' not 'citizen,' as it says in the preceding clause.

Corporate personhood was implied by Chief Justice Marshall in the opinion in Dartmouth College v. Woodward, 1819, where it was held that an incorporated entity was entitled to have its contract agreements protected as a private person would. "The opinion of the Court, after mature deliberation, is that this corporate charter is a contract, the obligation of which cannot be impaired without violating the Constitution of the United States. This opinion appears to us to be equally supported by reason, and by the former decisions of this Court."

This was followed 4 years later by another decision in which the Supreme Court denied Vermont the right to seize land from an English corporation. In Louisville, C.&C.R. Co. v. Letson, (1844), the Supreme Court held that a corporation is “capable of being treated as a citizen of [the State which created it], as much as a natural person.”

The 1886 Santa Clara County decision which first mentioned application of the 14th amendment to corporations (in 'accidental' dicta, I remind you) was the culmination of a long trend recognizing the rights of corporations, not a case of judicial activism. Which is probably why it was in dicta.

So much for 'blatant' activism.  

By Blogger Dawnfire82, at Thu Jan 21, 09:53:00 PM:

"I look forward to conservative proposals to drastically reduce the size of the defense budget..."

Oh really? Here are three.

A large portion of annual military spending is pure, grade A Congressional pork. Congressmen fight tooth and fucking nail to keep little or no-use military installations and projects alive, including a lot of R&D (see: Crusader), so long as they are located in the said Congressman's district. There is a sort of alliance among Congressmen, even anti-military sorts, to fund these things as a collective pork barrel project that also lets them all brag about how much they're supporting the military. Caveat: There is a legitimate reason to continue funding projects and acquiring equipment in peacetime, not least of which is to make sure our defense industries stay intact. But the current system of doing things is broken.

#2, end the Congressional meddling in defense projects. The military budget (obviously) and allocation process are under Congressional control; they can be saddled with crap that they don't want or need. This is especially a problem with the Air Force, who recently (last year?) got stuck with an order to take o a bunch of obsolete transport aircraft. That is both expensive and unhelpful, especially since they wanted new fighter aircraft to replace their aging F-15/16 fleet. The Army was ordered to develop new body armors that they neither wanted nor needed, because Congressmen wanted to look like they were 'protecting our fighting men and women.' Etc.

There is a LOT of fat in the military budget, but Congress would rather reduce the size of the Army and close operational bases (like in the 90s; see Fort Ord and the 7th Division) and cut pay for the troops than harm their own electoral interests by getting rid of that extra shit.

Then, eliminate retarded regulations that hamper day to day operations. Did you know that when an Army unit goes to the range and ends with excess ammunition it simply expends all the extra rounds? Wonder why? Because it's more of an expensive pain in the ass to jump through regulatory hoops and store the excess ammunition than to just waste it and get more later. Also, if a unit DOES go through the trouble to save the ammo, they are more likely to have their funds cut; because obviously, they don't need as much ammo as all those OTHER units that always seem to run out when they go to the range...

Is that enough?  

By Anonymous Anonymous, at Thu Jan 21, 10:10:00 PM:

Brian, I did not miss your reference to the 14th amend. I ignored it as not relevant to the discussion. Only if one assumes the 14th created corporate rights for the first time would one assume the amend. had some bearing on the issue. Since such rights long preexisted the amend. I think it reasonable to ignore your reference.

As the Chief Justice so brilliantly put it in his opinion, to not overturn these limitations on free speech would amount to judicial misconduct and in the act of overturning this ill-begotten monstrosity of a law, the Court today was not engaging in an act of "legislating from the bench", or "judicial activism", but instead was defending plain language interpretation of the first amendment. To do otherwise would have been not just non-sensical, but a terrible think.  

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By Blogger Neil Sinhababu, at Fri Jan 22, 04:06:00 AM:

Thanks for that example, Escort. There may be some reason why we should for some purposes allow the newspaper to be seen as a rights-bearing entity. This is just a matter of convenience, though. A bunch of transactions and property protections go more smoothly if you regard the newspaper as a person than if you try to somehow deal with the rights of all the real people involved individually. These individual rights are the ones of true moral significance, and we only have corporate rights as a convenient way of dealing with them.

But where these convenient purposes end, the corporate rights need to end -- that's all they're there for. The newspaper shouldn't be allowed to vote at 18 or run for president at 35. The newspaper's rights shouldn't be given a life of their own, like you or I. Speech is something the individuals involved are in perfectly good position to do, so I don't know why the corporation has to have free speech rights over and above the individuals.  

By Anonymous The Truth is Out There, at Fri Jan 22, 08:37:00 AM:

"Congress shall make no law ... abridging the freedom of speech, or of the press" Seems pretty clear to me.

Re: the dangers of unbridled corporate speech:

One aspect of AGW is the potential for plaintiff lawyers to bring tort claims for alleged damages caused by global warming. Early dismissal of test cases have recently been reversed by the Second and Fifth Circuits so that we may see a plague of these suits.

The Fifth Circuit test case includes Katrina-related damage claims. It also includes claims against several oil companies "in furtherance of a tortious civil conspiracy to "reposition global warming as theory rather than fact." In addition, "from 2001 to 2003, ExxonMobil [alone] donated more than $6.5 million to organizations that attack mainstream climate science and oppose greenhouse-gas controls." All of this activity has been part of a concerted and tortious effort to intentionally decrease public awareness and divert public policy activity away from the real dangers associated with Global Warming and the known need to restrict the emission of greenhouse gasses. ... This conspiracy delayed and otherwise interfered with individual and government action to address Global Warming, and consequently contributed to Plaintiffs’ injuries enumerated supra and infra."

Muzzling oil companies is one aspect for how we were collectively hoodwinked into believing that global warming was fact rather than theory.

Ps. Much of MSM doesn't qualify as "the press" anymore.  

By Blogger Dawnfire82, at Fri Jan 22, 09:46:00 AM:

Truth: That's the stupidest lawsuit I've yet seen. Do you know the names of the Parties?  

By Anonymous The Truth is Out There, at Fri Jan 22, 11:33:00 AM:

Comer v. Murphy Oil USA 10.16.09
Fifth Circuit reveresed a lower court dismissal and found that private plaintiffs had standing to pursue claims for private and public nuisance, trespass, and negligence, and that such claims were justiciable and did not present a political question.
Petition for rehearing is pending.

Native Village of Kivalina v. ExxonMobil 9.30.09
USDC ND California held that the federal nuisance-based global warming claim was barred by the political question doctrine and for lack of standing.
Plaintiffs have appealed to the Ninth Circuit.

Connecticut v. American Electric Power 9.21.09
Second Circuit revived two complaints brought by eight states, the City of New York and three private plaintiffs against electric utility companies to abate the "public nuisance" of global warming.
Petition for rehearing is pending.

The Fifth Circuit case reads like a bizzare law school exam. Plaintiffs even claim damages for people who didn't get laid during the week of Hurricane Katrina.  

By Blogger TigerHawk, at Fri Jan 22, 11:40:00 AM:

@Neil:

But where these convenient purposes end, the corporate rights need to end -- that's all they're there for. The newspaper shouldn't be allowed to vote at 18 or run for president at 35. The newspaper's rights shouldn't be given a life of their own, like you or I. Speech is something the individuals involved are in perfectly good position to do, so I don't know why the corporation has to have free speech rights over and above the individuals.

I'm unaware that corporations have any rights better than individuals other than limited liability for the stockholders, which is, after all, the whole point. But the "rights" in the Constitution are virtually all rights against state action, and there is clearly a huge interest in extended certain of those rights to limited liability entities (whether ExxonMobil, the Sierra Club, or the United Auto Workers). In my view they would include freedom of speech/press and most (but probably not all) of the due process procedural protections, to the extent they make sense. So, for example, the government ought not be able to confiscate corporate property without due process and just compensation, just as the Fifth Amendment provides. But everybody believes that a corporation ought to be compelled to "bear witness against itself," even though an individual cannot be compelled to do so. When you go through the Bill of Rights amendment by amendment, there is very little disagreement between conservatives and liberals over which rights should extend to corporations. The big fight seems to be over speech, which drives the left insane until somebody points out that the New York Times and MSNBC both operate through corporations.  

By Anonymous Mad as Hell..., at Fri Jan 22, 12:02:00 PM:

Many believe that the speech of corporations will be biased to their profit-making goals -- to our detriment -- and so shouldn't get First Amendment protection. But just look at our supposedly independent MSM. Any NBC-owned media property is already bent to parent GE's need to service Obama as much as possible. CEO Immelt needs to sell a lot of windmills, and roll-over his commercial paper. Over at ABC -- to advance a career levered off privileged access -- George Stephanopolous still puts on his gucci knee pads for Obama every chance he gets.  

By Blogger randian, at Fri Jan 22, 09:01:00 PM:

Many believe that the speech of corporations will be biased to their profit-making goals -- to our detriment -- and so shouldn't get First Amendment protection.

If reality matched their beliefs we would, to borrow a phrase, be driving Edsels to Circuit City to buy Betamax recorders. People are perfectly able to discern the self-interest of a speaker and judge appropriately, which is exactly why they don't need protection from corporate speech. The self-interest of a corporation and the self-interest of the population at large is not necessarily at odds, no matter how Democrats may demagogue otherwise.

Politicians disturb me more when they manage to get voters to go for "solutions" that, in my view, obviously won't solve the purported problem and will likely make it worse. For reasons I don't understand, the healthy skepticism normally directed at corporate speech disappears for government speech.  

By Blogger Gary Rosen, at Sat Jan 23, 05:32:00 PM:

"There may be some reason why we should for some purposes allow the newspaper to be seen as a rights-bearing entity. This is just a matter of convenience, though."

The "convenience" is that most newspapers share Neil's left-wing views.  

By Blogger Neil Sinhababu, at Sat Jan 23, 05:49:00 PM:

Tigerhawk writes:

"I'm unaware that corporations have any rights better than individuals other than limited liability for the stockholders, which is, after all, the whole point."

And I agree. I don't know the issues that well, but it's plausible to me that having limited liability for stockholders is a good thing for society. But I don't see why we should go beyond this to give corporations any further rights.

"But the "rights" in the Constitution are virtually all rights against state action"

Well, our law involves some other rights too. Your property rights prevent non-state bandits from stealing your stuff. And there's plenty more rights than those specifically enumerated in the Bill of Rights (see the 9th amendment, which refers to these without listing them). The right to vote and run for office are rights too, and corporations clearly shouldn't be allowed to do those.

By the way, I generally don't bother to defend the NYT against conservatives -- their Judith Miller was probably the reporter most influential in bringing about the Iraq War. I love my Krugman, but every paper has columnists you like and dislike. And while I like Rachel Maddow very much, I don't see why I have any partisan interest in supporting a channel that puts Joe Scarborough on for three hours in the morning.  

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