My Naive First Amendment Free Speech Question

Ronald Bailey | September 9, 2009

NPR's "Morning Edition" ran a long segment today on the Supreme Court's rehearing of the free speech case, Citizens United v. Federal Election Commission (FEC). Citizens United wanted to broadcast on a cable TV channel a documentary that was highly critical of Hillary Clinton during the Democratic presidential primary campaign last year. However, because the group had received a donation from a corporation, the documentary ran afoul of federal campaign finance laws and FEC regulations that prohibit political advertising funded by corporations. 

According to the NPR segment:

The question always is: Who does the First Amendment apply to? Do only individuals have the right of free speech? Or does this right extend to corporations and unions as well?...

"Does it apply to foreign nationals? Does it apply to the government of China or Russia or Iran in this country? Does it apply to corporations? Those are all different players who are not individuals, not voters, not citizens," says [Trevor] Potter,[former chairman of the Federal Election Commission and a longtime McCain adviser].

While the NPR segment noted that the First Amendment protects free speech, the report never quoted it. The First Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 

It seems to me that the legally relevant section reads:

Congress shall make no law ... abridging the freedom of speech, or of the press.... 

So my naive constitutional question is: What part of "no law" don't the courts, NPR, and campaign finance and speech "reformers" understand? 

And actually I do think that "no law" applies to speech (and especially to political speech) by anybody or any group, including unions, corporations, foreign nationals, or Martians.

See my colleague Jacob Sullum's much more sophisticated column "Unfair, Unbalanced, But Free" parsing the issues in Citizens United v. FEC.

Comments

|9.9.09 @ 12:52PM|#

So my naive constitutional question is: What part of "no law" don't the courts, NPR, and campaign finance and speech "reformers" understand?

That would be the part where it conflicts with their "We can do whatever the fuck we want" paradigm.

|9.9.09 @ 12:55PM|#

If the SCOTUS actually affirms that "Congress shall make no law...abridging the freedom of speech" this opens up an opportunity to tell them what "shall not be infringed" means.

Neu Mejican|9.9.09 @ 12:56PM|#

Just to play devil's advocate here...do corporations "speak"?

When you are all about the individuals, doesn't conferring rights to a collective present some problems.

I mean, if I work for GE and they "speak" for me, how do I disagree? Should the decisions of the collective be given the same legal status as the decisions of the individuals that make up that collective?

stuartl|9.9.09 @ 12:59PM|#

Just to play devil's advocate here...do corporations "speak"?

"....or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

|9.9.09 @ 1:01PM|#

This is such an important distinction, and it was equally important during the debates about detaining suspected terrorists.

The Constitution limits the government; it doesn't bestow privileges to Amuhricans.

Neu Mejican|9.9.09 @ 1:01PM|#

Particularly important, when talking about the "speech" of corporations, is that there is a disconnect between the decision makers and those that the corporation is "speaking" for. It is not like corporations are democratically determining their political positions based on the considered debate among the members/share holders.

anon|9.9.09 @ 1:01PM|#

You're not supposed to actually refer to the amendment itself... that's cheating.

So my question for Balko is - Why do you hate America?

John|9.9.09 @ 1:02PM|#

Spoiler Alert: Under our constitutional doctrines, you have no absolute constitutional rights.

http://en.wikipedia.org/wiki/Strict_scrutiny

The Gobbler|9.9.09 @ 1:03PM|#

"The question always is: Who does the First Amendment apply to?"

I'm old enough to recall when the question always was: To whom does the First Amendment apply?

dead skunk|9.9.09 @ 1:03PM|#

I don't ahve a problem with corporations/groups supporting a candidate, but I do have a problem with supoorting the candidates on both sides of a race. That seems to me to be bribery for the corporation or group.

If you want to support Obama or McCain, go for it. But don't cover you bases and send both tons of cash just to get your strip mining permit in Alaska.

Neu Mejican|9.9.09 @ 1:03PM|#

stuartl,

Okay. Can you elaborate on how you think that freedom applies to the modern corporation's status as a legal person.

|9.9.09 @ 1:06PM|#

NM: When you start picking which "collectives" may speak, when do you know when to stop?

In any case, the First Amendment (at least in my naive reading) does not say that "Congress shall make no law ... abridging the speech of individuals. If people are worried about speech from groups and organizations they dislike or fear, then let them forthrightly argue for amending the constitution to allow speech only from those they favor.

guy in the back row|9.9.09 @ 1:08PM|#

I believe there were limited liability corporate entities in existence at the time of the nation's founding. Was it constitutional for Lloyd's of London to support Aaron Burr in the election of 1800?

Neu Mejican|9.9.09 @ 1:09PM|#

Clearly,

Groups of people have a right to assembly and collectively petition the government.

Is the spending of a corporation in any way equivalent to this if that assembly of people did not freely gather for the purpose of petitioning the government, but to make some money.

(For the record, I am pretty skeptical of any attempts to limit free speech, I just don't know if I buy the idea that corporations should be treated as people - I could be convinced).

B|9.9.09 @ 1:12PM|#

What part of "no law" don't the courts, NPR, and campaign finance and speech "reformers" understand?

I'm assuming that at this point "shall make no law" means about as much as "shall not be infringed", "shall not be construed", or "shall not be violated".

Neu Mejican|9.9.09 @ 1:12PM|#

NM: When you start picking which "collectives" may speak, when do you know when to stop?

When they are a "for profit" corporation, perhaps.

stuartl|9.9.09 @ 1:13PM|#

Can you elaborate on how you think that freedom applies to the modern corporation's status as a legal person.

Ron hits the nail on the head, but to answer your question, can you name a modern corporation that is not an assembly of people? References to Stross's "Accelerando" do not count.

robc|9.9.09 @ 1:13PM|#

NM,

It is not like corporations are democratically determining their political positions based on the considered debate among the members/share holders.

Ive seen some ballot questions that can only be described as "political positions". So, corporations do, infact, debate and vote on them democratically.

And as a form of republic too, as the board represents the shareholders.

|9.9.09 @ 1:16PM|#

dead skunk | September 9, 2009, 1:03pm | #
I don't ahve a problem with corporations/groups supporting a candidate, but I do have a problem with supoorting the candidates on both sides of a race. That seems to me to be bribery for the corporation or group.

So?

If you want to support Obama or McCain, go for it. But don't cover you bases and send both tons of cash just to get your strip mining permit in Alaska.

Why not?

Neu Mejican|9.9.09 @ 1:17PM|#

stuartl,

Sure, sure, but is the speech of GE, say, equivalent to an assembly of people that have gathered together to speak to the government for a purpose? Does GE's political speech actually represent the political speech of that collective? Or does the "legal person" that is the corporation get an opinion of its own that is different than the individual's in the collective? Is the status of corporate speech the same as the status of individual speech?

|9.9.09 @ 1:17PM|#

"No law" is clear enough. Where the problems arise is trying to figure out what "the freedom of speech, and of the press" means. You may think that it means freedom of speech means freedom to say any old thing you want, at any old time, and at any old place, but our lawmakers and judges have never agreed.

(Besides which, if you want to go all textual literalist, then you run against the problem that the first amendment has nothing to say about abridgements by the states.)

ds|9.9.09 @ 1:19PM|#

Are corporations affected by laws and the speech of others? Yes. Then should they not have the right to persuade the public and lawmakers by using their right to free speech and spend their resources, time / people money, in any way that they see fit?

Neu Mejican|9.9.09 @ 1:19PM|#

robc,

Some do, yes. Are you saying that corporate officers are equivalent to political representatives?

|9.9.09 @ 1:21PM|#

NM,

A corporation (or other form of business) isn't getting individual rights here. It's just another group of individuals who are exercising the right of association--also protected under the First Amendment.

There are some narrow exceptions to the concept of free speech that are acknowledged--incitement to imminent violence, perjury, etc.--but even among those, very few allow for prior restraint of speech, which is extremely disfavored in our jurisprudence.

Also, I think trying to parse what associations may speak with a common voice and which may not is a fool's errand. Whether an organization is run democratically is irrelevant. Consumer advocacy groups, religious groups, non-profits, corporations, etc. are all, more or less, non-democratic. I'm not too sure unions and other organizations that more overtly use the vote are very democratic in actuality, either. Even so, what difference does it make if I elected someone to office for a year if they joker says something contrary to my opinion?

|9.9.09 @ 1:21PM|#

I believe there were limited liability corporate entities in existence at the time of the nation's founding. Was it constitutional for Lloyd's of London to support Aaron Burr in the election of 1800?

Real bad example. Lloyd's of London is famous for exposing its investors to unlimited liability.

In fact, there were very few limited liability companies at the time of the founding. The East India Company was one (and we know how popular that corporation was with the tea-baggers of 1773). Hudson's Bay Company (which hadn't yet become a chain of Canadian department stores) was another. Some canal, bridges, and ferry companies may have been incorporated by or shortly after the founding.

|9.9.09 @ 1:25PM|#

Where's lonewhacko? Do I have to do this myself?!?

dammit... here goes...

Hey, Bailey! Why are you insisting on ineffectively whining here? Why don't you ask The Supreme Court this question directly, and then post their answer on YouTube?

...

how was that, guys?

I need a shower now, I feel dirty.

Neu Mejican|9.9.09 @ 1:26PM|#

And again, I am pretty skeptical that there is a reason to exclude corporations, but I don't know that it is a ridiculous question to ask. I heard the NPR story this morning and I didn't get the sense that they were advocating a position, but pointing out the legitimate issues that surround the question.

Do corporations have all the rights that individuals have? Are they really equivalent to people? In some real sense I don't think so. But defining the boundaries of their rights is a bit tricky. They exist to shield their members from liability. Does that make a difference?

|9.9.09 @ 1:27PM|#

Just to play devil's advocate here...do corporations "speak"?

If I'm a corporate shareholder, then use the corporation as a vehicle through which I speak. The corporation, in turn, hires employees or p.r. flacks to vicariously spread my message. Similarly, I as an individual am free to hire employees or p.r. flacks directly, or to pool my money with a bunch of like-minded individuals to hire an employee or a p.r. flack. I don't see why I suddenly lose my free-speech rights because I choose to use a corporation as the vehicle for pooling my resources with those of like-minded individuals.

|9.9.09 @ 1:27PM|#

When they are a "for profit" corporation, perhaps.

NM, why does the money making status of the group matter? If they are for profit or not for profit seems to matter very little as to what they are allowed to say. It is WHAT they say that comes into question, such as if they go around threatening bodily harm to people rather than just calling them frigid old hags.

Fluffy|9.9.09 @ 1:28PM|#

Neu:

The corporate form of organization is just a contract by which some people give money to other people and say, "Use this however you want, subject to the conditions set in the Articles of Incorporation".

Unless the corporation is "speaking" as a fraudulent conveyance [which could happen - if the officers decided to funnel money to themselves by opening a PR company and then giving all the shareholders' money to that PR company, for example] all that's happening when the corporation speaks is a group of people are speaking through an appointed representative. It's really not that different from having an attorney speak for you, or a spokesman.

Neu Mejican|9.9.09 @ 1:30PM|#

Nick,

Well, a for profit corporation is probably not making a political argument, but a business decision. Their incentives for engaging in politics are not equivalent, perhaps.

stuartl|9.9.09 @ 1:30PM|#

NM,

As others have said, the onus is on you to come up with a strong argument why one assembly deserves protection and another does not. Corporations serve a good purpose for both shareholders and employees, why do they deserve fewer rights than other groups?

Fluffy|9.9.09 @ 1:31PM|#

But as Warren and John pointed out, the real problem here is not the questions that arise with regard to corporations - the problem is that every last Constitutional protection can be discarded if there's a good enough "compelling state interest" available. In practice that means that the First Amendment means nothing at all if the justices can be convinced that a particular law is a good idea for some political or social goal or other.

I, Kahn O\'Clast|9.9.09 @ 1:32PM|#

A brief stint working at the Federal Election Commission in the 1980's pushed me into the libertarian camp. Shut it down!

robc|9.9.09 @ 1:32PM|#

NM,

Are you saying that corporate officers are equivalent to political representatives?

I wouldnt use the word "equivalent" but it is analogous.

|9.9.09 @ 1:33PM|#

Or does the "legal person" that is the corporation get an opinion of its own that is different than the individual's in the collective?

Practically speaking, sure, a corporate employee might put out a message that differs from the one his shareholders might prefer him to put out. But that problem is one that potentially arises in every agency relationship.

Neu Mejican|9.9.09 @ 1:33PM|#

Fluffy,

Good points, all. So, does the fact that the corporation is a shield for me from liability matter. When my lawyer or another representative speaks for me, I am still liable for that speech (say I slander someone, I am liable, not my spokesman), but a corporation shields me from that liability. Does that matter?

robc|9.9.09 @ 1:35PM|#

NM,

There is nothing in the constitution, that I can see, that favors political speech over commercial speech.

|9.9.09 @ 1:36PM|#

I think one thing to keep in mind, too, is that allowing rights to be some limited thing, defined by government, is problematic. We're talking about political speech. If a consumer advocacy group can lobby DC, why can't a corporation?

I've been an in-house counsel with several very large corporations, and my experience has been that large businesses do not exert the overwhelming influence that's attributed to them by the left. In fact, they often lose political battles even when joining others in their industry.

NM,

About the limited liability business. The corporation is, of course, liable for false advertising, defamation, etc. If an individual who controlled the business tried to hide behind the limited liability to commit some sort of tort or crime, there's certainly every chance that the corporate veil will be pierced and that individual found personally liable. Also, the corporate officers and other employees aren't protected in that instance.

robc|9.9.09 @ 1:37PM|#

NM,

but a corporation shields me from that liability. Does that matter?

You arent entirely shielded. Even ignoring "piercing the veil" possibilities, you are liable in proportion to your ownership of the company.

If the libel lawsuit costs your company $100M, more than likely you are going to lose some money.

stuartl|9.9.09 @ 1:38PM|#

Their incentives for engaging in politics are not equivalent, perhaps.

NM, why does incentive matter? It is still freely assembled people.

Garrett J|9.9.09 @ 1:38PM|#

If the First Amendment right of free speech extends only to individuals, where does that leave newspapers, nearly every one of which is run by some sort of corporation?

And if the protections of the press are different than the protections of speech, I'd be curious to know where those differences come from in a legal sense.

|9.9.09 @ 1:38PM|#

NM: When you start picking which "collectives" may speak, when do you know when to stop?

When they are a "for profit" corporation, perhaps.

So GM and AIG would be good to go?

robc|9.9.09 @ 1:39PM|#

The "limit" on your liability is your investment in the company, but that amount is totally up for grabs.

|9.9.09 @ 1:41PM|#

Help me out, here, NM:

Could you point to the text of the First Amendment that refers to the source of the speech that it protects?

Well, a for profit corporation is probably not making a political argument, but a business decision.

I think this is a category error, NM. How is an argument about what policy to enact or politician to elect not a political argument, even if the argument is motivated by business interest?

Is the spending of a corporation in any way equivalent to this if that assembly of people did not freely gather for the purpose of petitioning the government, but to make some money.

Why can't they do both? Or do one on one day, and the other on the next? And, more importantly, why on earth do we want to start down the road of having the State analyze which groups have Pure Motives, and penalizing those that don't?

|9.9.09 @ 1:41PM|#

I seem to recall that the Supreme Court has said (maybe just in dicta) that there is no legal preference between the freedom of speech and the freedom of the press. In other words, we don't protect the press for reasons other than the reasons we protect speech in general.

|9.9.09 @ 1:41PM|#

Well, a for profit corporation is probably not making a political argument, but a business decision.

And if I as an individual choose to argue publicly for a political position that, if enacted into law, would make me more wealthy, that too is a business decision. And one that is protected by the first amendment. But just as I'm unlikely to get my ideas enacted into law simply by saying, "Pass this law and make me rich," so too a corporation will have to make an argument that convinces voters or lawmakers that its ideas will benefit, if not the public generally, then at least someone other than just the corporation itself. I'd much rather that convincing take the form of ExxonMobil ads arguing openly that global warming is a myth than the form of a private conversation with Senator Blowhard to the effect that if Sen. Blowhard votes no on the climate change bill, there will be a quarter million deposited in his offshore bank account.

Neu Mejican|9.9.09 @ 1:42PM|#

Pro Lib,

Well, not completely protected. The additional difficulty of suing a corporation and its officers is certainly a protection when compared to suing an individual.

|9.9.09 @ 1:42PM|#

ProL, last week the WSJ jumped all over the SEC for going after Bank of America, as opposed to individual employees that may have blown their fiduciary responsibilities. My point is, if government is going to attack corporations instead of individuals, then corporations definately need the right to petition government.

|9.9.09 @ 1:43PM|#

You'd think any First Amendment decision would be very short:

Does this law abridge the freedom of speech or of the press?

If so, it is overturned, null and void, invalid ab initio, stricken from the books.

robc|9.9.09 @ 1:44PM|#

NM,

There is no more difficulty is suing a corporation than in suing an individual. The difficulty is only suing the officers or executives or shareholders of the company personally.

|9.9.09 @ 1:45PM|#

NM,

So what? What's the difference between a limited liability business and a consumer advocacy group?

Neu Mejican|9.9.09 @ 1:46PM|#

James Ard,

Was the WSJ right? Should it have been the employees and not the corporation? Is the corporation responsible for the actions of the employees made in the name of the corporation? Is the employee responsible for the actions of the corporation made in his/her name?

Neu Mejican|9.9.09 @ 1:47PM|#

Gotta go...

Like I said, just playing devil's advocate here. Not sure I buy any arguments for limiting speech, but I don't think the questions are useless to ask.

|9.9.09 @ 1:51PM|#

The big point here, of course, is whether corporations should be able to do issue advocacy or attempt to communicate opinions to government. There is no legitimate reason for not allowing either.

|9.9.09 @ 1:52PM|#

And, once again, I agree with Pro Lbiertate.

robc|9.9.09 @ 1:53PM|#

That Pro Lbi guy is an ass.

|9.9.09 @ 1:54PM|#

Yes, what kind of name is "Lbiertate", anyway? Sounds Communist.

|9.9.09 @ 2:00PM|#

Their incentives for engaging in politics are not equivalent, perhaps.

If my motives for speaking about government are to hopefully not get imprisoned by them and/or to allow me to make more money at whatever it is I do, be it deal drugs or pimp whores or gamble on the internet, it is certainly political. No different for a corporation who may deal drugs, pimp whores, or run a gambling operation. Or sell coffee to stupid ass kids in Che t-shirts.

Craig|9.9.09 @ 2:02PM|#

When you are all about the individuals, doesn't conferring rights to a collective present some problems?

Rights aren't conferred, they're inherent (or God-given, if you prefer.) The 1st Amendment doesn't confer rights -- it can't. The 1st Amendment limits what Congress can do, just as the author of the article correctly points out.

|9.9.09 @ 2:13PM|#

Craig,

That's the super-duper major point here, I agree. Government doesn't grant rights.

|9.9.09 @ 2:15PM|#

Neu, Punishing a corporation to make up for shareholders losing money dosen't make much sense to me. But in this case, I can't blame the individuals either, who were facing intense pressure from Paulsen and Bernake to take on Merrill's losses.

JB|9.9.09 @ 2:15PM|#

[What part of "no law" don't the courts...understand?]

The part that hurts their vaginas.

kinnath|9.9.09 @ 2:16PM|#

When the president of the united states decides that the chief executive officer of a corporation must be fired and makes public statements to that effect, then it's pretty damn clear that corporations should be allowed to engage in politics.

MRK|9.9.09 @ 2:16PM|#

The issue at hand is not weather a corporation has the same freedom of speech as an individual, but rather if money is a form of speech. Generally the courts have upheld that money is a form of speech, and that is a serious mistake. Completely unregulated, money-as-speech is essentially bribery. Recent campaign finance laws are an effort to reverse that trend.

This case is interesting in that it could detail campaign finance reform, which is something this country sorely needs.

|9.9.09 @ 2:20PM|#

What this country sorely needs is more freedom and less government power. Creating byzantine rules around political speech that administered by the government is exactly the opposite of this.

The primal fear that leftists have of "corporations" makes absolutely no sense to me. What's the bigger danger? Which has the guns, the nuclear weapons, the horrific track record? Businesses or governments? Ye gods.

|9.9.09 @ 2:20PM|#

Neu,

I don't see why liability factors into it at all. What political position should have liability attached to it? Fraud? Libel? Slander? Individuals indulge in all these things constantly and it is either ignored, weakly pursued, or covered by the 1st.

Limited liability does not confer protection to corporate speech.

Some juan|9.9.09 @ 2:21PM|#

How does the government go about abridging a corporation's freedom of speech? Does the government arrest the corporation when it doesn't like something the corporation has said? Walk up to the corporation while it is saying something and intimidate it into being quiet?

kinnath|9.9.09 @ 2:28PM|#

Unless you believe that only presses owned by private citizens have "freedom" to produce and distribute political content, then it is obvious that businesses are allowed to print and distribute political tracts. I can't see how "incorporated" or "unicorporated" makes any difference at all.

What progressives seem to be frightened of is the deep pockets of corporations. But Bill Gates and Warren Buffet have deeper pockets than most businesses.

kinnath|9.9.09 @ 2:31PM|#

The issue at hand is not weather a corporation has the same freedom of speech as an individual, but rather if money is a form of speech.

Money is the means to buy a press and the consumables to produce printed political tracts {or to hire someone else to do it for you}. Extension to other forms of mass media seems intuitive.

"Money equals Speech" is probably less accurate than "Money equals Publication".

Joe M|9.9.09 @ 2:36PM|#

I mean, if I work for GE and they "speak" for me, how do I disagree?

Quit you job and work somewhere else.

|9.9.09 @ 2:40PM|#

Let me see, health care associations, which are even more dissassociated from individuals, can make billion dollar deals in the White House, but a corporation is banned from advocacy near an election. What the fuck?

|9.9.09 @ 2:48PM|#

When you are all about the individuals, doesn't conferring rights to a collective present some problems?

Not at all. My right to free speech is not limited by anyone else's exercise of their right to free speech, be they individual or some kind of association/collective.

Generally the courts have upheld that money is a form of speech, and that is a serious mistake.

That's the next question, and I continue to believe that, unless you think the right to free speech is limited to your right to speak with your unaided voice, then the right to free speech must include the right to spend money distributing your speech.

MRK|9.9.09 @ 2:55PM|#

@kinnath

I am not speaking of using money to buy the means to distribute your speech, but rather money as an expression of speech itself. E.g. A person donating $10,000 to an election Campaign is just as much a freedom of expression as speaking out in a public forum.
The SCOTUS precedent worth reading:
http://en.wikipedia.org/wiki/Buckley_v._Valeo

The Angry Optimist|9.9.09 @ 3:13PM|#

Generally the courts have upheld that money is a form of speech, and that is a serious mistake.

So newspapers should be able to be to have their distribution regulated?

|9.9.09 @ 3:16PM|#

I pay money for Internet access.

MNG|9.9.09 @ 3:18PM|#

The cool thing about thinking money=speech is that rich people have really loud voices and poor people have to whisper.

MNG|9.9.09 @ 3:21PM|#

I am increasingly becoming convinced the current law is an awful mess. So Citizens United cannot run this movie close to the election, does that mean the NY Times can't run a big ass editorial endorsing candidate A the day before the election? WTF?

|9.9.09 @ 3:27PM|#

James Ard, you convinced me. I was sitting on the fence, but you pushed me over with this:

"My point is, if government is going to attack corporations instead of individuals, then corporations definately need the right to petition government."

And ProL clinched it:

"What this country sorely needs is more freedom and less government power. Creating byzantine rules around political speech that administered by the government is exactly the opposite of this."

EscapedWestOfTheBigMuddy|9.9.09 @ 3:38PM|#

NM: When you start picking which "collectives" may speak, when do you know when to stop?

When they are a "for profit" corporation, perhaps.

The "for profit" versus "not for profit" distinction is an artifact of the tax code, so it poses no real barrier to the unlimited expansion of regulation.

Which is why the whole "corperate entities aren't people" approach is hard to make consistent.

|9.9.09 @ 3:38PM|#

Your citation makes my error burn all the more!

I must restate: What this country sorely needs is more freedom and less government power. Creating byzantine rules around political speech that are administered by the government is exactly the opposite of this.

Wicks Cherrycoke|9.9.09 @ 3:46PM|#

What part of "no law" do they not understand, you ask?

Please Mr. Bailey, haven't you heard that the constitution is a living, breathing document that changes with the times? Obviously "no" means "yes" in 2009. Do you expect us to live with 18th Century definitions for eternity?

Fluffy|9.9.09 @ 3:52PM|#

Completely unregulated, money-as-speech is essentially bribery.

Actually, when we're talking about legislators in certain respects it's difficult to even reconcile laws against bribery with the three rights listed in the First Amendment.

Bribery laws assume that there is a proper way for an official to exercise his power, and that the illicit payment involved leads the official to step outside the proper exercise of his power for his own benefit.

This makes a great deal of sense for appointed positions, where the duties of the position are strictly defined. It also makes a lot of sense in monarchical or imperial systems, where the official's power is delegated from a central authority, whose interest is supposed to be controlling, and the acceptance of a bribe puts the official's interest above the king or emperor's interest.

But this gets really messy in the case of legislators, because when you get right down to it there is no "proper" way to be a legislator. Legislators can vote whatever way they want on any issue they want. The "proper" way for them to vote is not externally defined and can't be externally defined. The check on their behavior is the fact that their votes are known and they can be voted out of office.

Neu Mejican|9.9.09 @ 4:00PM|#

The check on their behavior is the fact that their votes are known and they can be voted out of office.

Catch 22. The way they avoid getting voted out of office is to solicit bribes to increase their ability to drown out voices pointing to their relationship to the briber(s) which means they are representing the briber rather than their constituents meaning they need more money from the bribers to drown out the message indicating that they are in the pocket of the briber(s) meaning they are less and less...

;^)

kinnath|9.9.09 @ 4:01PM|#

A person donating $10,000 to an election Campaign is just as much a freedom of expression as speaking out in a public forum.

Once you assume that "money equals publication", then there is no real difference between buying your own press, hiring a third-party to print stuff for you, or giving the money to a candidate so the candidate can buy a press or hire a third-party to print stuff (or make videos or public speeches or whatever it necessary to communicate with the public).

kinnath|9.9.09 @ 4:09PM|#

Bribery laws assume that there is a proper way for an official to exercise his power, and that the illicit payment involved leads the official to step outside the proper exercise of his power for his own benefit.

There was a wonderful example in Arizona circa 1992. A very loud and brash legisltor (who took extreme delight in being the vote that pushed the impeachment of Even Mecham over the top) was caught on camera taking stacks of money from a state (or federal) agent in a sting operation. Several other legislators were caught in the scam and they quietly resigned from office.

This legislator on the other hand stayed in office and fought the bribery charges in court. The scam involved a fake pro-gambling organization that wanted to get laws enacted to improve the state climate for gambling. It would appear to be a straightfoward quid pro quo issue (vote buying), but the legislator argued that she was already on record supporting more gambling and the Arizona statue defines a bribe as taking money to "change" behavior. She was acquitted.

|9.9.09 @ 4:11PM|#

I am increasingly becoming convinced the current law is an awful mess. So Citizens United cannot run this movie close to the election, does that mean the NY Times can't run a big ass editorial endorsing candidate A the day before the election? WTF?

You're getting there, MNG. I don't think there is any principled distinction between what Citizens United did in apparent violation of the law, and what the NYT does every day.

Do they both spend money to spread their message? Check.

Are they organizations rather than individuals? Check.

Do they use corporate money? Check.

|9.9.09 @ 4:22PM|#

So if Bono wants me to save somebody in Africa, is he speaking as Bono or is he speaking as his LLC? Let's say I am in Congress.

|9.9.09 @ 4:24PM|#

The NYT only supports reasonable things like CO2 restrictions, wars, deficit spending and the Federal Reserve. So we can trust them.

Fluffy|9.9.09 @ 4:27PM|#

Catch 22. The way they avoid getting voted out of office is to solicit bribes to increase their ability to drown out voices pointing to their relationship to the briber(s) which means they are representing the briber rather than their constituents meaning they need more money from the bribers to drown out the message indicating that they are in the pocket of the briber(s) meaning they are less and less...

Actually, to me that makes the bribery case harder to prove, not easier.

If the legislator takes the illicit payment and buys a yacht with it, that at least "looks like" a bribe - the legislator is using his office to get money to spend on luxuries for himself. I still think it's questionable, for the reasons I outlined in my first post.

But if the legislator takes the money and spends it on political organization, that makes the waters very muddy indeed. Because that act of political organization would have to be less privileged than other similar acts of political organization - and that raises "Who does the legislator represent?" and "What is the 'right' way for the legislator to vote?" questions that don't have an answer under a system of popular sovereignty.

J_B|9.9.09 @ 4:42PM|#

These restrictions on political speech come with an implicit belief that voters are easily manipulated by quasi-propaganda films or other political media. The propaganda's success is irrelevant. Sources of information on candidates can be regulated civilly through libel and slander suits, but are exempt from government value judgments on their biases. And Chad, this is true even if someone can't calculate compound interest.

|9.9.09 @ 4:42PM|#

To quote Hugo Black, "No law means 'No law':

|9.9.09 @ 4:46PM|#

I think the emphasis should be on the politician. If he or she accepts recompense that at all looks like bribery, he or she is out. Period. It's not holding these people to higher standards that is part of the problem. Bribery is a crime, with the requisite level of prove being necessary. Removal from office should have a far lower standard. Like "You smell corrupt, please leave."

The larger issue, that politicians at the federal level have too much unlimited and unchecked power in the first place, ain't going away anytime soon.

Neu Mejican|9.9.09 @ 4:56PM|#

Fluffy,

Just for fun, let's say the briber is not from the legislator's district. Say he was voted in to represent South Dakota, but is taking money from California or China. If he is voting to please the bribers, but not the people whom he was voted into office to represent, isn't he failing to "vote properly" since he is not representing the interests of those that he is a representative of?

|9.9.09 @ 5:07PM|#

I think we can go too far equating bribery with permissible speech. The fact that we have anti-bribery laws on the books has led to the travesty that is McCain-Feingold, but I think we might want to be careful about opening the floodgates entirely, particularly given the huge power wielded by government officials already.

Still, I think the real heat should be more on the official than the entity peddling influence. The latter is ungood, but the former is scum.

|9.9.09 @ 5:26PM|#

So my naive constitutional question is: What part of "no law" don't the courts, NPR, and campaign finance and speech "reformers" understand?

While I enjoy watching Mr Bailey pilfer catch phrases from religious pro-lifers, even in Libertopia there would be exceptions to freedom of speech carved out against libel, slander, fraud, threats, etc. So let's not pretend there's some bright red line that we're on one side of and the evil, duplicitous living-dead Constitution types on the other.

|9.9.09 @ 5:35PM|#

Hugo liked to say that, but free speech absolutism is difficult to support in practice. Fraud, perjury, defamation, etc. would all be protected in that case.

|9.9.09 @ 6:09PM|#

If there is one single politician in Washington that can't be bought, far be it for me to deny him every fucking cent he can garner for his election.

|9.9.09 @ 6:16PM|#

While I enjoy watching Mr Bailey pilfer catch phrases from religious pro-lifers, even in Libertopia there would be exceptions to freedom of speech carved out against libel, slander, fraud, threats, etc.

I'm still not sure I buy the argument that civil laws against libel and slander are laws "abridging the freedom of speech". These laws provide restitution for the harm caused by (untruthful) speech. Is having to pay for the harm you do an abridgement of your freedom? I don't think it is.

The same goes for civil laws against fraud, as well.

|9.9.09 @ 6:23PM|#

Well, there's still criminal fraud and perjury. And if we think about it, there's likely other crimes involving speech. Treason could be one (not actual treason but one of the treason-like laws on the books), I suppose.

|9.9.09 @ 7:07PM|#

Tulpa: What is it about "prior restraint" don't you understand?

I also don't understand your allusion to pro-lifers, but it is true that they can say whatever damned thing they want to too.

|9.9.09 @ 7:09PM|#

Tulpa: Just in case I'm not clear, laws against fraud, libel, and slander are post-facto remedies in tort - not restrictions on speech.

|9.9.09 @ 7:15PM|#

Hey, so haven't read the thread yet, but:

If corporations don't have the right to free speech, does that mean that the NYTimes can be censured?

|9.9.09 @ 7:23PM|#

To whom does the First Amendment apply?

It applies to the government.

It imposes no restrictions at all on the people, whether acting individually or collectively.

-jcr

Fluffy|9.9.09 @ 7:34PM|#

Neu,

Ultimately, even that line of argument requires us to assert that an outside party can judge what the "proper" vote for a legislator is. And the only people who can do that are the voters, and the mechanism they have to make that judgment is voting.

With regard to the question that has been raised about fraud, I would dispute that the element of crimes of fraud that actually breaks the law is the speech. I can speak the words "I have a cure for cancer that I made out of my own poop," all I want. But if I take your money in exchange for a great big glass of my poop, after telling you that it will cure cancer, if it doesn't actually cure cancer I have committed a crime. It's not fraud when I say the words; it's fraud when I take your money under the pretense that my words were true.

And perjury is only a crime because you have taken an oath before the court. If you refuse to take the oath, you can't be charged with perjury. They'll charge you with contempt then - but that's not a speech crime.

And we could probably dispense with our libel and slander laws and it wouldn't be the end of the world. They're virtually never employed successfully anyway.

Hacha Cha|9.9.09 @ 8:05PM|#

the constitution limits the governments ability to pass ANY laws that restrict free speech, freedom of the press, etc.
and the constitution does give individuals rights, the 10th amendment states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the PEOPLE.

Hacha Cha|9.9.09 @ 8:08PM|#

oh and the 10th amendment would also give the same rights to companies since they are run by individuals.

Neu Mejican|9.9.09 @ 8:08PM|#

Well, then...No law to reduce the scope of free speech...

That takes a lot of precedent off the table (e.g., commercial speech).

I think if you are absolutist in your interpretation of the 1st (not a bad thing), then you need to be absolutist in your definition of "speech." Only expressive acts count.

Whether giving money to a candidate to facilitate his speech is an expression seems, well, as already noted, debatable.

Neu Mejican|9.9.09 @ 8:17PM|#

A side note on the "living document" concept that was raised earlier.

This has to do with the fact that a text does not contain meaning that is interpretable without a context of interpretation. Prior court decisions, legislation, the current situation, etc... all contribute to the interpretation of a text. It is simply not possible to interpret the text "as it was written." Courts and their decisions add to the meaning of the text over time.

That said, this one is pretty close to as clear as it gets. Hard to find a context where limiting expression isn't an "abridging" of "speech." If corporations are persons, then they can express themselves.

If money is expression, however, it seems to protect my right to buy stuff. The first surely protects the right to buy expression, but I don't think it protects other uses of money.

I mean, if spending money is just expression, then the money I give to the guy that's gonna kill my boss is just speech, and my right to do that can't be abridged.

Yadda yadda...

|9.9.09 @ 8:41PM|#

the legislator argued that she was already on record supporting more gambling and the Arizona statue defines a bribe as taking money to "change" behavior. She was acquitted.

I must say, whoever drafted the statute did a pretty sloppy job, then.

-jcr

anonymous|9.9.09 @ 9:45PM|#

"Well, a for profit corporation is probably not making a political argument, but a business decision. Their incentives for engaging in politics are not equivalent, perhaps."

Unlike anyone else that stands to be harmed or benefited in some way by government policy. I guess it isn't "business" if it's just a hand out, but it's all just money when you get down to it.

"I mean, if spending money is just expression, then the money I give to the guy that's gonna kill my boss is just speech, and my right to do that can't be abridged."

Yes, just like your right to order your lackey to kill another person, knowing they will do it, cannot be abridged. It's free speech! Me and my buddy Charles Manson had a laugh about that little loophole the other day at Starbucks.

No one's suggesting that money in general is expression and protected under the 1st, they're suggesting that restricting spending money on expression is attacking expression itself in a roundabout way. Otherwise, you could gut the freedom of the press by placing legal restrictions on presses. You aren't attacking the expression itself, just regulating some dangerous machinery.

anonymous|9.9.09 @ 9:58PM|#

"I think we can go too far equating bribery with permissible speech. The fact that we have anti-bribery laws on the books has led to the travesty that is McCain-Feingold, but I think we might want to be careful about opening the floodgates entirely, particularly given the huge power wielded by government officials already."

Thing is, it's possible to slip money to a "campaign" that somehow ends up giving a politician free coke and hookers; that isn't spending money on speech, it's spending money on politicians. Not that politicians are technically supposed to be able to treat a campaign fund as their piggy bank, but it's hard to catch, and tantamount to bribery.

But when companies start spending money to create ads or movies or whatever, there's no possibility of diversion -- the funds went straight to the speech, and cut out the candidate as a middleman. That ought to be where the line is drawn in favor of speech.

I mean, if you vote for a politician you're also doing him a personal favor (getting him a sweet job) in hopes that when in office he will do favors for your voting bloc (lowering taxes, expanding government benefits, killing foreigners, etc.). At what point do we decide that democracy itself is bribery?

|9.9.09 @ 10:33PM|#

Mr Bailey Sir,

The reference is to the pro-life billboard of dubious effectiveness, asking "What part of THOU SHALT NOT don't you understand?"

What is it about "prior restraint" don't you understand?

Now that's dirty pool. "Prior restraint" is nowhere referenced in the amendment text. You can't play dumb and take the text literally when it helps your side, and then insert a bunch of non-obvious restrictions when it's pointed out that your naive reading contradicts your own positions. If "speech" is a broad enough concept to include money spent to enable speech, then it is broad enough to include libel and threats. Speaking of which:

Tulpa: Just in case I'm not clear, laws against fraud, libel, and slander are post-facto remedies in tort - not restrictions on speech.

There is such a thing as criminal fraud (and perjury as ProL mentions above), and you fail to justify the exclusion of threats and speech that poses a clear and present danger ("fire" in a theater). Even so, Congress' fingerprints are all over even civil matters such as libel, slander, and civil fraud: they write the statutes that define those civil infractions and maintain the court system that adjudicates them.

These laws provide restitution for the harm caused by (untruthful) speech. Is having to pay for the harm you do an abridgement of your freedom?

Well, that principle would render the Alien and Sedition Act constitutional, since politicians are harmed when people criticize them with the express intent of keeping them from being elected to office. Indeed, as even truthful speech can cause real harms, I don't see how truth could be a defense under such a paradigm.

The reality is, the freedom of speech has been allowed to be restricted for the sake of deep-seated societal traditions (obscenity, libel, slander) and for the sake of enforcing compelling state interests and protecting public safety (fraud, perjury, "fire" in a theater). With the possible exception of obscenity and copyright infringement laws, I don't see how a libertarian could oppose these restrictions (the civil/criminal shell game notwithstanding).

|9.9.09 @ 11:40PM|#

Tulpa: I felt as though I had to spell out clearly the element of "prior restraint" since your list of "exceptions to freedom of speech carved out against libel, slander, fraud, threats" are all punished by ex post-facto civil/criminal remedies. I don't think that it was unfair for me to point that out, but opinions will obviously differ.

The campaign speech restrictions we are talking about are all aimed at preventing speech (censoring) beforehand. Of course, if someone refuses to be adhere to the FEC's campaign speech regulations, they can be punished later.

In any case, it's late. Good night to you all.

|9.10.09 @ 12:11AM|#

Try getting a newspaper to print an obviously libelous column. The goal of all criminal law is to prevent people from doing the thing being banned, whether through direct intervention by the govt, or through fear of punishment. And in any case, you haven't justified why a law not enabling prior restraint is less suspect under the naive reading of the 1st.

Neu Mejican|9.10.09 @ 1:43AM|#

Seems the arguments in court today covered much of the same ground covered in this here thread.

What're the chances?

|9.10.09 @ 7:28PM|#

And actually I do think that "no law" applies to speech (and especially to political speech) by anybody or any group, including unions, corporations, foreign nationals, or Martians.

While I agree with the general thrust of this sentence, neither foreign nationals nor Martians should be permitted to contribute money or labor to a campaign for any US office or advertise in any US media regarding a US election.