Good for the US Supreme Court for overturning the 20-year ban on direct corporate spending on elections. Last time I checked, the First Amendment - "Congress shall make no law ... abridging the freedom of speech, or of the press" - contained no language excluding corporations from its protections.
Justice Sonia Sotomayor, no great champion of the First Amendment, predictably voted with the minority - that is, to uphold the ban. President Obama, apparently also no great friend of freedom of speech, said the decision gives a "green light" to special interests. Predictably, Keith Olbermann just finished ranting about the decision. Fortunately his guest, constitutional law professor Jonathan Turley, tried to set Olbermann straight.
Contrary to Senator Schumer of New York, the decision has "not just predetermined the winners of next November's elections." The decision is not political. It favors neither party. It favors freedom. (I'm a lifelong Democrat, who voted for Obama.)
Justice Stevens, who wrote the minority, dissenting opinion, thinks the First Amendment was not intended to apply to corporations, which "are not human beings. They can't vote and can't run for office." But by that reasoning, The New York Times and The Washington Post would have been entitled to no First Amendment protection when Richard Nixon tried to prevent them from publishing the Pentagon Papers.
It's hard, I know, to support the right of people or organizations to speak and write and buy ads when you utterly and vehemently disagree with their positions. But that is precisely what the First Amendment was designed to support and protect. Because it protects the expression not just of opinions you may detest, but your own most cherished opinions, when others may find them detestable.
22 comments:
Well, the government nof the corporations, by the corporations and for the corporations is now in no danger of vanishing from this earth.
The First Amendment was not made for fictional entities.
I think I have to disagree with you here. And it's just based on this blog post because I'll readily admit I have zero knowledge of the details of this besides hearing about it once or twice. I've always thought it was a good thing. First, how is supporting a candidate monetarily freedom of speech? Second, how is comparing freedom of the press to report on the government the same as corporations spending money on a candidate?
I don't think a corporation is a person or have the same rights. I don't see individual freedoms as the same given to corporations. They are a collective of people. Do the corporations then have to tally votes of their employees and stockholders to then decide which candidate to support?
I may be missing something but I don't see this as being a good thing at all.
I don't always agree with you, Paul, but in this case, you're right on. "Congress shall make no law... abridging the freedom of speech." Seems pretty clear to me. In the United States, you can talk. (Sure, I'll accept Holmes's limitation against falsely shouting fire in a crowded theatre, but beyond the clear-and-present-danger dictate, let people say what they want.)
What I find most interesting about the hue and cry against decisions such as this is the assumption that corporations would all speak on one side of the issue (whichever issue it might be). And I'm also wondering about our fellow writers who've incorporated themselves for one reason or another. Wouldn't it have been interesting if one of them made a political statement, and was then sued under the prohibition against corporate speech on political issues? I wonder how that would have turned out.
I will chime in with Ian here and agree that this was the correct decision. I am delighted that you Paul, with whom I disagree on so many things politically, have posted this, although I'm not surprised that we are in agreement. I have never doubted the sincerity of your belief in free speech.
I agree, and I think people overestimate the impact that monetary donations have on elections anyway. Here's a good blog post by Tyler Cowen today:
http://www.marginalrevolution.com/marginalrevolution/2010/01/corporations-as-political-donors.html
To Dick, Gunner, Obi, and everyone who thinks that corporations are not people, and don't have the same rights as people:
Of course corporations are not people, and of course corporations do not have all the same rights as people. For example, corporations cannot vote in elections.
But clearly corporations have some rights - they can earn money, own property, enter into contracts, etc.
And one of the rights corporations have is protection under the First Amendment.
If not, then, as I said in my blog post, the New York Times has no First Amendment rights. Neither does Liongate, which distributes Michael Moore's films. If those two corps have no First Amendment rights, than the government can censor them, whenever it pleases.
You ok with that?
Thanks, Ian, Jeff, and Eric. Yes, we may disagree on a lot of issues. But what keeps us free, and therefore strong, is an unswerving belief in freedom of communication, untrammeled by government.
No. The word in the preamble of the Constitution make it quite clear. We the PEOPLE of the united States...
Before the industrial revolution, there were less than a dozen "corporations" granted a charter by the new federal government. These charters were quite specific, and time sensitivemeaning that once the goal of the corporation was met (I.E. building the bridge, railway, dam, etc...) then it promptly dissolved. The individuals involved with the corporation were all individually legally liable for their actions.
Then the civil war, and 14th Amendment came alone. Then in the 1870's "corporations" were granted "rights" as "14th Amendment persons." This is the one legal manoeuvering that allowed fascism to occur in the first place.
So, to say that corporations have the right to buy politicians and our government right out from underneath the feet of the people is treason and explicit support of fascism.
Don't forget that fascism is defined as the perfect merger between the corporation and the state (as defined by Mussolini, the guy who coined the term "fascism"...or have you already forgotten?). This is just another posturing which will ensure that what we thought would never happen here can never be destroyed.
I took an oath to protect and defend the Constitution of the united States against all enemies, foreign and domestic. The writer of this blog, and everyone who has supported this opinion has just become an enemy of the Constitution, and is guilty of treason. See you on the front lines.
First of all, "we the people" refers to the creators of the Constitution, not what the government under the Constitution is allowed and not allowed to do.
Second, if you look at the language in the Bill of Rights, some of the rights protected are specifically attached to people (such as the right to peaceably assemble and the right to assemble) and others (such as speech and press) have no such limitation.
Third, right, I'll see you on front lines.
Some citizens blame one political party or the other. Some citizens blame inefficient and corrupt government while others blame the greedy, manipulative corporations. All these are the creations of those of whom it is rightfully said: "are endowed by their Creator with certain unalienable rights...". Government was instituted in this country for the protection of the rights of the sovereign such as are enumerated in our Bill of Rights while corporations were instituted originally for the welfare and benefit of the public. The servant has become the master and the master has become a slave. We have given to creatures of contract the rights of the sovereign and the sovereign has been reduced to being mere serfs and tenants on the land.
"I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. . . . corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed." -- U.S. President Abraham Lincoln, Nov. 21, 1864 (letter to Col. William F. Elkins) Ref: The Lincoln Encyclopedia, Archer H. Shaw (Macmillan, 1950, NY)
"We must make our election between economy and liberty, or profusion and servitude. If we run into such debts as that we must be taxed in our meat and in our drink, in our necessities and our comforts, in our labors and our amusements,...our people...must come to labor sixteen hours in the twenty-four, give the earnings of fifteen of these to government,...and have no time to think, no means to call the mismanagers to account; but to be glad to obtain sustenance by hiring ourselves to rivet their chains on the necks of our fellow sufferers...And this is the tendency of all human governments; a departure from principle in one instance becomes a precedent for a second, that second for a third, and so on 'till the bulk of society has been reduced to be mere automations of misery...And the forehorse of this frightful team is public debt; Taxation follows that and, in its train, wretchedness and oppression." - Thomas Jefferson (1823)
A History of Corporate Rule and Popular Protest
Corporate Greed, Corruption, and the Coming Collapse of America As We Know It
Life Inc The Movie - (Video)
Corporate Money, Media Manipulation and the US Elections - (Pdf File)
In the battle for Liberty,
THE JAILHOUSE LAWYER
http://www.angelfire.com/az/sthurston/index.html
*
Paul: you make a sound argument in the Citizens United case, even if it doesn't taste right to the Dems ... just an obeservation: in 2005 John G. Roberts Jr., then the nominee for chief justice, told the Senate Judiciary Committee, "It is a jolt to the legal system when you overrule a precedent ... adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability." JGR did exactly that last week, casting a pivotal vote as the Supreme Court voided two precedents and struck down decades-old restrictions on corporate campaign spending. so before becoming Supreme Commander-of-Chiefs, Roberts was an absolute, card-carrying "stare decisis" guy. now in office he backtracks from his previous mere mortal position. the John G. Roberts Supreme Court does not reign from above like a Greek deity god on Mt.Olympus. JGR is a mere mortal (btw, welcome to the club). so much for judicial minimalism. so let's get this straight, not all judicial activism is created equally. this is an earth shattering revelation. moving on ,,, up to now among the fair & balanced FOXy Partisans it was standard operating procedure that Obama was Patient Zero in the "say one thing when in campaign mode, then do a different thing when in governing mode." how refreshing. so most gov't office holders (including the esteemed SCOTUS) are built from the same political DNA, expediency. the 'politics of convenience' lineage is bipartisan and spans JFK-Nixon-Reagan-Bush I-Clinton-Bush II-Obama. so now Judge Roberts officially joins the long illustrious list of Flip-Floppers. how refreshing ,,,, ps, can't wait for my next LOST fix ...
"If not, then, as I said in my blog post, the New York Times has no First Amendment rights."
I do not support granting constitutional rights to various groups - only to individuals. Various groups should be governed by state and federal laws only - not be granted extra protections by the constitution. But you do raise an interesting point with the NYT (which is a corporation and not an individual).
There are three ways of dealing with the NYT in this case:
1st: The NYT is "the press" and therefore a specific type of corporation singled out by the wording of the 1st amendment. However, although the definition of "press" may be easy for the NYT, it may not be so clear cut in other cases.
2nd: The press publishes articles written by people, who unquestionably do have 1st amendment rights. In this view, an unspecified opinion of "The NYT" may not have 1st amendment protection - only views/opinions/speech by identifiable individuals. In other words, your blog post is protected by the 1st amendment not because of Blogger.com, but because you are Paul Levinson. I would go even further to say that your 1st amendment right is protected not only from government censorship, but also from censorship by Blogger.com. But that is probably a step too far for our corporate-centric, collectivist world view.
3rd: In as far as the NYT is a commercial entity, all of its "speech" is "commercial speech" by definition. As such, it used to be that this speech had to be factually correct. This "commercial speech" requirement has also fallen out of use, which is a pity.
The problem with granting corporations, unions, etc. 1st amendment protection under the constitution, is that it begs the question: What other rights do these organizations also possess? What legal principle do you use to decide which rights apply and which do not? The equal protection right would imply that if the constitution applies at all, then all of it applies to corporations.
As a practical matter specifically for 1st amendment considerations around elections, does Lukoil have the unlimited right to support the candidate of its choice too? Do all foreign corporations now have this right? What percentage of a corporation needs to be owned by American citizens for it to be granted these protections? Who decides this?
The constitution is not the right tool to decide what corporations can and cannot say. This should be left up to state and federal laws. The constitution should apply only to individual human beings.
Paul, You used the word correct in the title.
Is there anyone here who believes the decision IS correct, but also believes it will have a negative impact in any way? If so who do they think it will affect and how?
Thanks, NP
Your press example nearly proves the perverted misinterpretation of your point: while individual reporters are "free" to speak, they are the ones who go to jail or lose their jobs while their corporate owners profit from the individual's efforts, totally unburdened by individual responsibility. Same as it ever was.
Cash is not speech. Corporations are not individuals with guaranteed rights. Until corporations are willing to accept the responsibilities that come with these rights, they shouldn't be granted them. (I know it's way too late for that, but we need to either repeal them or hold the corporations as accountable as we do individual citizens... the real losers)
When the Constitution was being written, it was almost 100 years before the corporate-industrial revolution (post Civil-War industrialism). Corporations as they are today had not even been concieved of as a possibility, and if you asked any of them what they thought of the idea of the modern corporations, most of the framers wou8ld most likely have responded with something like;
"Good God, man, have you lost your mind?! We just got out of a war with the British East India Company, and now you want to build a thousand of them here on our shores, granting them protective quarter with our laws and military to be let loose upon an unsuspecting world? We fought this war so that we could gain our freedom and be an example for the rest of mankind, not so that we could put their shoe on our foot and show that we can be more tyrannical than the tyrants we just defeated. You're way too inebriated for another bitters good fellow. Perhaps your goodly wife has put the bed warmer under the sheets for you. Take your wig off and sleep it off, you're not making any sense any more."
Corporations of the late 18th Century did not have an individual (corporeal) apparatus for exercising speech of any kind. No public relations department, or anything of the sort. Corporations still do not have an apparatus for speaking of it's own accord. It needs the input of individual PEOPLE to speak. The modern corporate framework shields the individual from any legal repercussions if their speech has a negative effect on other actual persons. Tobacco companies are a good example of this. SOME GUY thought it would be a good idea to put 4000 additional chemicals in tobacco to get folks more addicted to their product, neglect to inform users of his product that it now has more harmful chemicals in it than it did before and that those chemicals will make them want more of THOSE cigarettes, and when folks figured out about the chemicals and asked if they were harmful, he lied to them and said no. That guy is totally shielded from his actions that have resulted in the premature deaths of millions across the planet. The "corporation" didn't do all that....the guy (hiding) behind the corporation did. What do you think the greater message of "The Wizard of Oz" was? The "man behind the curtain...pay no attention to him."
To assume that the framers of the bill of rights (George Mason, The Virginia Declaration of Rights, 1757) were psychic is arrogance in the highest form. There is no way that they knew how things would turn out 200 years later, and to assume that they did and wrote the language of the Constitution accordingly is quite simply...stupid.
"Speech" as such, can ONLY be attributed to something that has the ability to produce it on it's own. A corporation has neither its own hands or mouth. The NYT writes nothing. the NYT does not exist. The authors of those articles exist, and their rights are protected. A group of individuals get together and agree to operate some machinery which will mechanically reproduce those (now previously existing) words on paper, and then go out and ask folks for some change in exchange for reading those words. Trying to say that the NYT, as a corporate entity, has rights of any kind is like saying that a Xerox machine has rights. A newspaper company is simply a giant Xerox machine that uses people as transistors and memory chips instead of only electronic or mechanical parts. The only job of the NYT corporation is to mechanically reproduce written words that it itself did not originate.
We really are right back to where we were around 1770 or so. Completely under the thumb of corporations which are protected by "government" guns and mercenaries. Every aspect of our lives are controlled by them. If it's not the British East India Company, and Hessian Mercenaries...it's Wal-Mart, Citicorp, Blackwater and Wackenhut. No matter how you say it, it still all boils down to the same thing.
For you to think that the BEIC has the same rights that I do, or any "rights" at all, makes you a loyalist in the worst form.
Paul I want to agree with you re: the SCOTUS decision -- but I don't think corporate entities hold the same natural right to freedom as speech, etc as a human being.
It's easy for me to say that free speech should apply to all entities, along with freedom of press & right to assembly, including corporations, however I don't believe corporations should be able to vote, serve on a jury, etc. Conversely, I can rationalize that if a corp can be sued as a separate entity, why should a jury of other corporations be disallowed? But, how can you have a jury of other corporations, and is that really in the best interest of the public that the court is meant to defend, by extension of interpreting our laws?
What about voting? The phrase 'vote with your dollars' is always thrown around as a major ideal of free market strategy. More and more people use this phrase as the end-all argument to competition, but with growing populations and niche markets that can survive through the support of only a small minority, does voting with your dollar really matter on a large scale? It does if you have enough money. There is no guarantee if I, or a large majority, vote with our dollars for company A vs company B, that Company B will stop producing 'bad' products. And I believe this verbiage and bias towards rights of the corporation has devalued the meaning of the term vote with respect to our elections and the voice of individuals. The reason election voting is so empowering to the individual is because the outcome is defined by finite counts -- there can only be one winner.
Media is obviously a very influential force. It can be & is abused. Lies are treated as fact and vice versa. And people believe it because of a number of reasons, but primarily, of late, it panders to fear, disrespect of those who differ from you, partisanship .. general disingenuous politics, and typically for the sole purpose of financial gain. I'm all for financial gain and the growing wealth of our nation (who isn't!?), but do so through the use of lies, deception, and self-serving advancement just rubs me the wrong way. With the widening gap between the wealthy and the not so wealthy, the right vs wrong partisanship between the democrats & republicans, and the continued push for the rights of corporations in lieu of the individual, I can't see this party-line decision without a nefarious goal in mind. Perhaps it's just the wrong time.
"President Obama, apparently also no great friend of freedom of speech..."
WTF? I'm not sure how such a silly assertion might advance your argument.
Do a little research. Obama appointed Sotomayor to the Supreme Court - her decision in the Doninger case and others makes her not a strong First Amendment judge, to say the least.
The FTC under Obama issued tough restrictions on bloggers - requiring bloggers to disclose commercial endorsements, etc. Again, not in accordance with the First Amendment.
Obama has made disparaging comments about bloggers, in a way that could undermine their First Amendment protections.
Etc, etc.
So, yes, Obama is "apparently no great friend of freedom of speech". I didn't say "enemy" - I said "apparently no great friend".
I was teaching Constitutional Law when the first decision came down twenty years ago and I told my class that not only did I believe that the court misappled the First Amendment (and after years of demonstrating and litigating First Amendment cases, I would have to say that I am not a friend of the First Amendment, but a lover). At a practical level I thought the opinion was a fruitless effort. We already have the best government money can buy.
All one has to do is track the contributions reports with the voting patterns of various politicians. However, political PACs, eventually "issue"-oriented, rather than supportive of a particular candidate poured money into elections to influence outcomes. At least now we are being intellectually honest.
I was surprised and a little saddened by the uproar over the opinion, especially from people like Olberman whom my husband and I like very much. Corporations have been held liable as "people" when assessing liability for violations of various federal laws. We cannot have it both ways.
Beside, now we can see who contributes to whom (dare I use that hackneyed word transparency???).
First, good to "meet" you, anon - I'm always glad to know a colleague lover of the First Amendment. And I agree with all of your points.
About Olbermann: I started to become annoyed at Olbermann a few years ago, when he began lambasting "24" as an agent of the Bush administration. On the one hand, it was simply uninformed - Fox Entertainment is interested in making money, not supporting any administration - but on the other hand, it showed an intemperance and hyperbole that is disruptive of rational discourse.
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