Antonin Scalia vs. John Paul Stevens

Counting the majority opinion and the various partial concurrences and dissents, today’s landmark First Amendment decision in Citizens United v. Federal Election Commission clocks in a hefty 183-pages. But one thing that jumped right out while reading the dissent (it’s also a concurrence, in parts) written by Justice John Paul Stevens and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, is Stevens' angry tone. He calls the idea that the First Amendment forbids distinctions between individuals and individuals organized as a corporation “a glittering generality” with no foundation in the law, and later declares, “Under the majority's view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” Well!

But most significantly, Stevens accuses the majority of making “only a perfunctory attempt to ground its analysis in the principles or understandings of those who drafted and ratified the Amendment.” Stevens even cites the influential legal conservative Judge Robert Bork to impugn the majority’s originalist credentials. That's not something you see everyday.

Justice Antonin Scalia, however, isn’t having it:

I write separately to address JUSTICE STEVENS’ discussion of “Original Understandings”... This section of [Stevens'] dissent purports to show that today’s decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored....

The [First] Amendment is written in terms of "speech," not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals--and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is "speech" covered by the First Amendment. No one says otherwise.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    scalia is the man

  • Zeb||

    Well, sometimes. Never forget the "new police professionalism" which renders the 4th amendment meaningless, apparently.

  • ||

    Scalia is a toad! He reeks of judicial activism, corporations are not individuals therefore should not be treated as individuals period. Corporations are run by individuals who have every right to gather, donate, and form associations. Corporations are business vehicles for profit, not indivduals with rights.

  • ||

    The NYT is a corporation. Do they have a right to free speech, or to the free press?

  • Tony||

    You might have a point if you weren't citing a business that is specifically protected by the first amendment.

  • Nathan M||

    Where does the first amendment say anything about specific businesses? ... It doesn't. I assume you're referring to the "freedom of the press." That has nothing to do with the modern understanding of the 'press,' i.e. news media. It refers to anything that anyone cares to print.

  • Sean W. Malone||

    EVERYONE is "specifically protected by the first amendment"!!!

    "Press" is a very broad term. Most major corporations, Target for instance, produce a monthly journal of activities - a magazine. Is that not "press"? The government doesn't get to decide what is or what isn't acceptable speech. It's job is not to abridge the liberty for people as individuals or as groups of individuals to speak and express themselves as they see fit.

    So 1. J Mann does have a point, and 2. You're a fool.

  • ||

    The underlying debate is whether corporations should be considered individuals. No they shouldn't. A corporation by definition is separate legal entity. The members of the corporation cannot be held personally liable for the actions of the corporation ( hence limited liability). Control of the corporations rests with a small group of managers who make the decisions. To say that Corporations speak for all the members as one individual is not only naive, but obscene to even suggest. Most people today do not even know which corporation they have money invested. Corporations mainly function to protect the owners and managers from individual liability. It goes against reason to afford a made up entity the same value and rights as an individual. Yes, a corporation can be held criminally liable for it's actions but all the members lose is money. When in fact it is the individuals who manage the corporation who committed actual the crime and get away with all freedoms in tact.

  • Abimbola Akanwo||

    Thank you...good definition and description of a "corporation"...

  • Sean W. Malone||

    The thing is, Steven, there is NO group for which that will ever be the case. If you donate money to a Union, or to the Red Cross, for that matter... Your money, or at least, some of your money is going into a lobbying and political advocacy arm.

    It's naive to think that whatever the union spends money to support is representative of all members of the union. But part of the deal you make when you support large groups is that your money goes into whatever projects the leaders of that group decide.

    Likewise, for all your talk about crimes, the vast majority of corporations *do not* engage in any type of criminal activity, and as a result, when you invest you wind up earning some of the profits from that corporation.

    So you can't have it both ways. You don't get to reap the benefits when the corporation does well, and then whine when you lose out. Investing is a risky enterprise and if you're not comfortable with that, then you shouldn't be involved. A corporation, regardless of the complexity, is still a voluntary association of people. When that changes, then talk to me again about limiting speech.

  • Sean W. Malone||

    PS. the lesson here is, if you're not comfortable with contributing to the political activities of WalMart or whoever else, don't support them with your business or your investment. If their message is something you don't agree with - then don't pay them to say it.

  • ||

    There is a big difference between donating money to Red Cross or Focus on the Family. You have a pretty good idea the purpose of the organization. These organizations allow like minded people to form large groups to express ideas.
    Corporations are not intended for this purpose, they are fictitious entities for the sole purpose of business. There is no Constitutional right for fictitious people, which is exactly how the law recognizes corporations under corporate liability statues. In no way does restricting corporate free speech infringe on any of the individuals of the corporation from expressing their freedom of speech as individuals or as group.
    Just as you stated, corporations cannot have it both ways either. You cannot be a fictitious person and have the same rights as real person. Whether we think in terms of justice under law or equal protection of the laws, it is untenable that artificial entities called corporations are given most of the constitutional rights of real humans while aggregating powers, privileges, and immunities that individuals, no matter how wealthy, could never come close to attaining.

    Corporations should never have rights afforded to the citizens of the United States. It is an affront to democracy to allow a small percentage of the population to control the government through election bribery. I own two corporate entities, they are good for business but shouldn't be allowed to decide policy.

  • ||

    Actually, a corporation could be non-profit.

    Speaking of profit-making, sole-proprietorships, general partnerships, limited partnerships, etc., are other business vehicles for profit.

    It seems reasonable that individuals do not lose their freedom of speech, in the form of donations in this case, because they are part of a corporation, or corpus (body of people).

    Thus the corporation should be allowed to speak with one voice, just as any one of its members can individually.

    I think the problem with the dissenting opinion is it is born more of political fear than a constitutional issue.

    Would the dissenters use the same arguments aimed at corporations against a one-owner business, a club, an activist organization, fraternity, sorority, trade unions, or association?

  • ||

    Anthony misses the point of the dissent. Stevens does sound the alarm bells because Scalia et al disregards centuries of legal decisions. They also disregard the publics will set forth through Congress that corporate free speech is not conducive for a democracy. Corporations should never be treated as individuals as it undermines the true individual. You are allowed to organize to be heard, there are many avenues available for such free speech. Corporations are for business ventures not individual freedoms.

  • Abimbola Akanwo||

    Well argued...

  • Sean W. Malone||

    "Corporations are for business ventures not for individual freedoms"???

    Wtf. Every corporation is made up of individual people, is it not? The corporation is just a label we ascribe to that group to define its purpose more clearly. No person who joins onto a corporation loses their right to freedom as individuals, and the people who run the corporations are not sub-human either.

    Not well argued.

  • ||

    First corporations are not a label we ascribe to a group of individuals to define their purpose more clearly. A corporation is a separate fictitious person whose charter sets the statues and by-laws that dictate the operation of a business. In fact, a corporation by definition and law is a complete separate entity distinct from it members. Meaning by law it does not represent the rights, privileges, and liabilities of it's members, so regulating corporate speech does not infringe on any individuals or large group to freedom of speech.
    Under your rationale shareholders should be responsible for any crimes committed by the corporation since membership is voluntary. If the companies negligence results in the death of someone, everyone in the corporation should be held liable since they all joined the group under their own free will. If this were true than I would be more apt to agree with your view that a corporation is just a collection of individuals protected under the Constitution. This would probably make investors and managers more concerned with other things than just profit.
    Please read more about corporations, some great keys terms you need to understand are fiduciary duty, externalities, stakeholders cost benefit, & corporate liability law

  • ||

    PS In today's reality individuals can hide behind the false corporate persona, the courts and laws have decided that enough money can buy your way out of any trouble. Check out CSX and John Snow.

  • GC||

    I thought it was a pretty damning rebuttal by Scalia.

    The dissent, and apparently all of the liberal groups who should be applauding this, seem very badly to want this decision to be cast as flying in the face of decades of tradition and not simply a relatively new, very bad law.

  • ed||

    Dylan Ratigan said as much on his MSNBC show this afternoon. He cited everybody's new buddy, Teddy Roosevelt, and 100 years of First Amendment-busting "tradition." Evidently a law's merit and legitimacy is based upon its age.

  • Joe M||

    Stevens is a freakin' fossil and needs to go, although I'm sure Obama's replacement would be no better.

  • Invsiible Finger||

    She already proved she wasn't.

  • ||

    Stevens just got pwned.

  • ||

    **High fives Scalia***

    I see Stevens is still befuddled by that very complex "no law" concept.

  • Pendulum||

    Really? So there's a constitutional right to associate via the corporate form?

  • Fluffy||

    Please explain to me why Citizens United does not have a first amendment free press right, but MNBC does.

    They're both corporations.

  • Fluffy||

    Sorry, MSNBC. Or CNN.

  • Ben||

    The [First] Amendment is written in terms of "speech," not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals--and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is "speech" covered by the First Amendment. No one says otherwise.

    Or are you some differently-abled person that struggles with English?

  • ||

    No silly, via tee-vee and magazines.

  • robc||

    There is a constitutional right to associate. It doesnt matter the form, the association doesnt take away free speech rights.

  • Cliché Bandit||

    The Constitution does not grant/create/endow/produce rigths. I merely outlines the protection of them. So there is not constitutional right to ANYTHING. Sometimes i get very tired of repeating this (not directed at robc only at pendulum). Rights are inherent in each individual.

    AX, grinding it needs.

  • ||

    A fair statement. We should talk about rights explicitly protected in the Constitution, but, of course, there are fundamental rights not specifically addressed therein.

  • Cliché Bandit||

    Assuming 9 and 10 mean something they are protected to a degree at least from the Fed.
    Just sayin

  • ||

    What, those inkblots?

  • Cliché Bandit||

    Touché! I think Madison sneezed or something.

  • Toneee||

    You mean like the right to free healthcare?

  • robc||

    Im using the one saying it. Consider it short hand.

  • cbmclean||

    The Constitution does not grant/create/endow/produce rigths. I merely outlines the protection of them. So there is not constitutional right to ANYTHING. Sometimes i get very tired of repeating this (not directed at robc only at pendulum). Rights are inherent in each individual.

    Care to justify that statement? What exactly is the source of the "rights" that people have? I assume that most of the people on this blog do not subscribe to the supernatural origin of rights. So, what exactly is it about the specis homo sapiens that endows it with "rights"?

  • Niccolò Machiavelli||

    "So, what exactly is it about the specis homo sapiens that endows it with "rights"?"

    The might to enforce said rights. Notice how when deciding which rights to protect, the founders carefully protected the one that created all the others, the second ammendment...

  • ||

    Unlike any other species of mammal, as far as we know, human beings are able to function, and much (if not most) of the time do function, not in direct contact with nature (for example, raw sense impressions) but rather "by wire," apprehending reality by way of natural language, mathematics,etc.

    It's this that gives us our ability to create very large-scale societies, governed by laws. All such societies have some concept of "right" in general, at least as a codification of the obligations and privileges of different functional groups in societies. The status of an Untouchable in traditional Hinduism, for example, is a matter of right in this sense, as are the duties of a king to his barons, etc. This is not primarily a means for the stronger to diminish the rights of the weaker, although sanctified oppression is a frequent outcome, it is simply necessary in general if human beings are going to have permanent social structures larger than the band. Even to organize large-scale forces of social predation, a principle stronger than mere personal submission to a more dominant individual has to be invoked.

    The development of this basic "faculty" of rights throughout history has led to an economic circumstance in which society as a whole has found it profitable to develop the concept of individual rights. After that, the more strictly citizens are defined as a) rightful holders of property, and b) fungible units of "free" labor, the greater the tendency to universalize and extend the concept of rights.

    Do you really believe that the "rights" of a football team owner stem from his being a bigger bully than the football players? No, he can only operate in a context where his "rights" are acknowledged to be stronger than the "rights" of the he-men who kneel so submissively before him.

    We live like this and so we are constantly tinkering with, and trying to rationalize, our concepts and systems of rights.

  • Sam Grove||

    There are no constitutionally granted rights, only constitutional restrictions on governments ability to infringe rights.

  • ||

    Exactly. The Constitution simply defines and sets limits to the few things government is allowed to do.

  • Chony||

    But heathcare is a right...

  • ||

    Which, of course, is one of those things that have effed up constitutional jurisprudence. Conflating rights with things we'd like to have.

  • ||

    . . .given to us.

  • ||

    Yeah, but if someone sees it in the 9th and 10th Amendments, who are we and Damon Root to complain?

  • robc||

    The word "granted" never appeared in my posts.

    Constitutional rights are still granted by God, they are just mentioned in the Con.

  • ||

    Bullshit. God is silent.

    Or he/it/she is fickle - see prohibition and its appeal.

  • ||

    "Constitutional rights are still granted by God"

    Oh boy...

  • ||

    Then why is it called the Bill of Rights?

  • ||

    Because it's a piece of paper with a list of rights on it. DER. Just because they got written down by the authors of the Constitution, doesn't mean that they were invented or granted by the authors or by the government.

  • The Libertarian Guy||

    Meh, that pesky Tenth can go... who needs it? We should just let the Pod People work their juju.

  • Fluffy||

    If Stevens really thinks that the limits on the notion of what a corporation could do in the 1780's are relevant here, I would like him to tell me why those limits couldn't also be applied to the New York Times.

  • ||

    So does this basically wrap it up for McCain-Feingold? Is there anything left of that statute now?

    -jcr

  • Sudden||

    Just the soft money limits remain.

  • ||

    And the disclosure and disclaimer requirements.

  • smartass sob||

    ... in splendid isolation from the text of the First Amendment.

    I love the man's turn of phrase.

  • ||

    And a good Warren Zevon reference to.

  • juris_imprudent||

    Zevon channeling Queen Victoria no less.

  • Lazy Jack||

    In the 2008 political cycle it is estimated that Unions spent about the equivalent of $1 billion in money and labor on political campaigns. They could mobilize this effort because they are able to end-run around the current laws and rules. If their members support them in this use of their resources, they should be allowed to do it. The Supreme Court today said a lot of other organizations should be allowed to do the same thing. Free speech is free speech. Scalia argues that there is a constitutional right to speak, even if you are a nasty corporation, as opposed to a lobby or union or Soros. Frankly, money is available to anyone with a viewpoint so restricting funds is not only a violation of the First Amendment, but a waste of time. Barak Obama proved that. Or did I imagine him breaking his campaign promise to take federal matching funds that would have capped his ability to spend money? Thought so.

    Best,

    Lazy Jack

    www.thanksforthelaughs.wordpress.com

    Scalia argues that there is a constitutional right to speak, even if you are a nasty corporation, as opposed to a lobby or union.

  • Fist of Etiquette||

    "...voting is, among other things, a form of speech."

    Thus opening a whole corporate taxation without representation thing.

  • Fluffy||

    It's a great day for liberty.

    The job won't be done until the campaign contribution limits are gone. But we can still be happy with today's result as a step along the way.

  • ||

    Seconded. Take 'em where you can get 'em.

  • Johnny Longtorso||

    If any group has free speech rights (political parties, etc), then corporations do as well. If media corps have free speech rights, then so does Exxon.

  • creech||

    I never could understand why it is so all fired important to keep your vote secret from your employer, friends, minister or whomever but not the even more important fact that you donated $200 to candidate X.

  • ||

    My reasons for doing so are none of your business.

  • anonymous||

    On the other, candidate X can never be sure that you voted for him; he knows where that money came from, and may feel obligated to you, and everyone else probably ought to know who he has to thank for his nice shiny new campaign.

    Now, if your contribution was unknown both to the general public and the candidate, I can't think of a valid objection in terms of corruption. Obviously, stopping corruption isn't the actual aim of progressives, though.

  • Raven||

    I frequently disagree with Scalia on non-First Amendment issues, but he really can deliver an excellent smackdown.

  • juris_imprudent||

    Smacking down Stevens these days is the equivalent of taunting 'tards.

  • Johnny Longtorso||

    I never could understand why it is so all fired important to keep your vote secret from your employer, friends, minister or whomever but not the even more important fact that you donated $200 to candidate X.

    The same people who push "campaign finance reform" also push card check. You're accountable to them for everything you do. Privacy simply means avoiding accountability toward Your Betters.

  • ||

    The first amendment doesn't apply to individuals or businesses. It applies to Congress.

    ""Congress shall make no law..."

  • ||

    +1

  • ||

    What's interesting is that there might be an argument, at least at the state level, that corporations as organizations could be legally banned. Perhaps under the idea that limited liability is against the public interest or some such economy-shattering nonsense.

    However, once corporations are a legally recognized association, there is no way, no how you can constitutionally allow discrimination against them in matters of speech regulation. Given prior law, the bulk of McCain-Feingold was unconstitutional all along.

    Besides, what about consumer advocacy groups? Unions? Churches? And what's the legal justification for distinguishing between the speech of corporations in one industry and those in the media?

  • ||

    There isn't a legal justification. And danger has always been that some day people would figure that out and rather than stop regulating corporations, regulate everything.

  • ||

    Causing harm is justfication enough to exclude yelling fire in a crowded theater.

    That kicks a decent sized hole in the door.

  • ||

    And corporations cause "harm" in the same way that yelling "fire" in a crowded theater or libeling someone does?

  • ||

    That would depend on specific actions.

    But once you kick a whole in the door, all kinds of rats can run in.

  • ||

    Only if you are an idiot who can't make rational distinctions.

  • Warty||

    And suppose you were a Congressman. But I repeat myself!

  • ||

    But John keep in mind. In my opinion, Congress can not pass a law that prevents you from yelling fire in a theater.

  • ||

    Which I think is crazy. Because if Congress can't, the states can't. No way do I buy that the First Amendment doesn't apply to the states. There is a long history in the common law of the state being able to restrict dangerous or libelous speech. Whatever the framers meant, it wasn't that.

  • ||

    If SCOTUS can't seem to define infringed, how do you expect them to properly define dangerous.

  • ||

    I take that back. Should the state be able to criminalize libel or harmful speech? No. But absolutely, they should be able to create civil torts related to it. If your speech causes me damage unfairly, I should be able to collect from you for my damages. But you shouldn't go to jail.

    So, I maybe I didn't understand you. My apologies. I think we agree.

  • ||

    It's *falsely* yelling fire in a crowded theater. If the theater is actually on fire, go nuts with the yelling.

    Why do people consistently screw that up?

  • ||

    There's a prejudice against people yelling in theaters.

    One thing to keep in mind in reference to criminalizing speech is the heavy, heavy bias in our system against prior restraints on speech.

  • ||

    Lol. Ok.

    I have more of a problem with the idiots that start trampling people because they are not smart enough to look around and see the guy if full of it or not.

    But the new defense will be, the movie was in 3D, I thought the seat in front of me was on fire.

  • Amazing Grace and Chuck||

    We often wondered that too.

  • Amazing Grace and Chuck||

    Thatwas at Pro Lib @4:59 pm

  • Amazing Grace and Chuck||

    I meant at JW|1.21.10 @ 4:57PM.

  • Invisible Finger||

    You also apparently can't yell "JETS!" in a crowded football stadium.

  • ||

    It is legal to yell "Chiefs!" because they don't have a crowded stadium.

  • The Libertarian Guy||

    Is it okay to yell "tort reform" in a theater full of attorneys?

  • Fluffy||

    We'll have to go after that particular bit of Holmesian bullshit next.

  • smartass sob||

    What if there is a fire in the crowded theater? Yelling "fire" might cause harm even though it's a true statement, so should that prohibit one? Not doing so might also cause harm.

  • ||

    I think it is yelling it to maliciously cause harm. What if you mistakenly wander into a pen with a dangerous bull. And I upon seeing this, immediately yell with the intent of startling the bull to get him to charge. And the bull then charges and gores you. I was only yelling. Isn't that speech? But I did so with the intent and reasonable expectation that it would cause you harm. No way is my speech protected under the 1st Amendment.

  • ||

    You might be derailing your own arguement when you say reasonable expectation.

    The reasonable expectation is that people will evacuate in an orderly fashion when you shout fire. Real or not.

  • ||

    It is all about the facts. If it is not the harm is not a reasonably foreseeable result of your behavior, your behavior is not tortuous.

  • ||

    And so comes forth consequentialist, utilitarian morality.

  • ||

    The act of murder is immoral. The act of speech is not.

  • TickleStick||

    I am so keeping my ass out of theaters.

  • Raven||

    I agree, although you wouldn't have to "ban" corporations- The states would just have to repeal their corporate codes.

  • ||

    Same difference. Used to be that you could toss a corporation for violating its charter.

  • T||

    Yeah. I looked into forming a corporation. The advice I got was to form a corporation to engage "in all lawful forms of commerce". Hard to violate that particular charter without breaking a few other laws.

  • ||

    It should be noted that Stevens believes that Shakespeare didn't write his plays. If that belief doesn't disqualify him from high office, nothing should.

  • ¢||

    It's a great day for liberty.

    Days are short. That Nader amendment shit is getting crammed in every Right Thinking Person's head now, and eventually it'll happen.

    Thomas's libertarian-ish partial dissent, though more rigorously Constitutional than the majority decision, sounds completely crazy to almost everybody. It wouldn't have, not so long ago; Stevens would have been the out-of-touch ranting lunatic. Now, he's one nomination away from being the Voice of the Court.

    Progress.

  • ||

    It won't happen. Gun control got crammed down every right thinking person's throat for 40 years. So did the ERA. And a lot of other things. Liberals like losing causes. Loosing is good for them since it fulfills their desire to whine about how unfair and cruel the world is to them.

  • ||

    The National Woman's Party took the ERA to Congress in the 1920s, where Senator Charles Curtis and Representative Daniel R. Anthony, Jr.—both of the Republican Party and both from Kansas—introduced it for the first time as Senate Joint Resolution No. 21 on December 10, 1923, and as House Joint Resolution No. 75 on December 13, 1923, respectively. Though the ERA was introduced in every Congressional session between 1923 and 1970, it almost never reached the floor of either the Senate or the House for a vote—instead, it was usually "bottled up" in committee. Exceptions occurred in 1946, when it was defeated in the Senate by a vote of 38 to 35, and in 1950, when it was passed by the Senate in a modified form unacceptable to its supporters.

    The Republican Party included support of the ERA in its platform beginning in 1944, renewing the plank every four years until 1980.[3] The ERA was strongly opposed by the American Federation of Labor and other labor unions, who did not want to compete with women,[3][dubious – discuss] as well as by Eleanor Roosevelt and most New Dealers, who contended that women needed government protection that men did not. The amendment was opposed by most northern Democrats, who aligned themselves with the anti-ERA labor unions and supported by southern Democrats.[3] Beginning in 1972, the Democrats included support of the ERA in their platform.[3]

    Those damn liberal republicans.

  • ||

  • ||

    Yes, those Damned liberal Republicans. Haven't you ever heard of Henry Cabot Lodge? Rockefeller? John Lindsey?

    This is probably going to come as a shock to you. But political history is more complex and interesting than "Blue Team, Red Team Go Team!!"

  • ||

    No shit sherlock.

  • ||

    Guys i just found out Republicans ended slavery...i am not even kidding!!!

    I can hardly fucking believe it!!!

  • Holmes||

    No shit sherlock.

    U R DUMB

    You actually thought that no one was aware of the Republican record, or the Progressive Era, so you went through the trouble and wasted time highlighting knowledge commonly held by most commentators on this board thinking that it would boost your argument.

    'Good golly whiskers, Mr Tricky, I hadn't thought of all of that. I guess what I believe must be wrong because some Republican woman from Kansas did something SO out of character for Republicans. I guess I gotta go eat some crow now.'

    Once again,

    U R DUMB

  • ||

    If you're going to talk about the ERA and Liberala, give republicans their due for their part.

  • ||

    Appeal to personal attack much?

  • Scott||

    I hate Scalia's attitude on gay issues like nobody's business, but that was an awesome smackdown.

  • ||

    What's the need for Dems or the GOP? Corporate conglomerates foreign and domestic can form their own party. Dubai, China, Russian multinational oligarchs can buy elections now. Any individual freedom versus corporate profit convergence here? Just wondering...
    What about corporations who profit from war? GE, Boeing, etc can now directly spend millions for candidates that will make them billions; even if it is at odds with what the American citizenry wants...

  • ||

    Yes because is certainly going to support invading Canada because Boeing and Lockheed Martin told them to.

  • T||

    I'm hip. I think you could garner a substantial amount of votes with a campaign promise to invade Canada. Aresen and the rest of our resident canucks better be out of the country that week.

  • ||

    Maybe Canada is a bad example. It is a beautiful country and Canadians are pretty fucking obnoxious. I guess an invasion would be a pretty easy sell.

  • ||

    Hey, Canadians are not "pretty fucking obnoxious." They've generally been good friends to the U.S. They just like to make sure everyone understands the difference between citizens of Canada and citizens of the U.S. Not everyone can tell.

  • ||

    Have you ever met one overseas? Everyone I have ever met, and I have met plenty, immediately launches into a tirade about how much better Canada is than the US. Look, I am totally in support of people liking and defending their country. But, Canadians are just obnoxious about it.

  • ||

    But, Canadians are just obnoxious about it.

    But frankly, so are we Americans. So just tell the Canadians that you understand why they like that their country the best, and that Canadians are just like Americans that way.

    That will really piss some of them off.

  • ||

    Good plan.

  • ||

    Not any more obnoxious than Americans doing the same thing.

    If you want to say people boasting about how much better they are than anyone else are obnoxious. I'm with ya.

  • ||

    Oh, I see. Let me explain why that happens. When you are overseas, there's a possibility that a terrorist will take you hostage. In such event, a Canadian has every incentive to distinguish himself from an American. Granted, he could just flash his passport, but it can't hurt to be vocal about the difference.

    Also, European chicks go for guys who insult the U.S. Which is why Americans do it over there, too.

  • ||

    Maybe Canada is a bad example. It is a beautiful country and Canadians are pretty fucking obnoxious. I guess an invasion would be a pretty easy sell.

    You neglect the fact that it is Boing and Lockheed that are currently keeping the GOP and DNC from invading Canada. Not the other way around.

  • natebrau||

    "Dubai, China, Russian multinational oligarchs can buy elections now."

    That's just it- read Leavitt's Freakonomics. There's a lovely chapter showing how no amount of money can make an unelectable candidate electable. It's surprisingly difficult to buy an election in the U.S. Money, though helpful, is never the decisive determinating factor, and so is not to be feared by anyone rational.

  • ||

    Doesn't a libertarian society require freedom from the obtrusive and coercive behavior of both the State and monopolist (or near monopolist) capitalist institutions?

  • Attorney||

    Whether any monopoly (other than a "natural monopoly") can exist for long in a free market is hotly debated.

  • ||

    Doesn't a libertarian society require freedom from the obtrusive and coercive behavior of both the State and monopolist (or near monopolist) capitalist institutions?

    I will be happy to take that question up the day after we roll the state back to its core Constitutional functions.

  • ||

    You know, if government were small and corporations were running amok, rounding up people and enslaving them, let's say, I'd be okay doing something about that. It's not like oppression in the name of business is magically okay.

  • ||

    If you could "buy elections", John Corzine would still be governor of New Jersey and H.Ross Perot would have been a two term President.

  • ||

    If you could buy them, they would be on sale at Sam's club.

  • ||

    And Bloomberg would be the next President.

  • ||

    How did distinguish the DNC and the GOP from Microsoft before this discussion?

  • GC||

    Yes - if corporations aren't "persons" entitled to free speech (which appears to be the argument most opposed to this ruling are making) then isn't the question, "what is a law that abridges the freedom of the press." What does one have to do to magically become protected by the press protection? Does airing a commercial count as freedom of the press or free speech? Neither? Both? I can certainly understand why the Court would not want to wade into that minefield...

  • Fluffy||

    It's only a minefield if you enter into it in the mindset, "Oh noes, if we are actually logical, we'll lose the commercial speech exception and the obscenity exception."

    Once you forget about trying to save those two petty tyrannies, it's not a minefield at all.

  • GC||

    Yes - but does the Court have to decide whether bloggers count as press? When does a corporate publication gain press protection? What if a corporation pays someone to write op-eds all day long?

    Much simpler just to say everyone - no matter what corp. structure - is entitled to free speech.

  • robc||

    From an earlier thread (quoting myself):

    My buying a TV commercial is "press". Especially if Im "reporting" on a candidate. Hell, that is news, not just press. Even, if its slanted news saying vote for FOO.

    Thus, when a corporation buys a political commercial, that is the exact same thing as the NYT printing an editorial.

  • ||

    I really, really don't get how some people grossly inflate the power of businesses, especially in assuming that all business interests work together. Exactly the opposite is true. In some of the lobbying in my industry, there are issues where our competitors are lobbying against us. And we frequently lose to other lobbying groups, like unions, consumer advocates, and other industries. And what lobbying we do is limited to several major issues, not some generic "Aid corporations" crap.

    It's self-evident nonsense to make "corporations" the greatest danger to, well, whatever they're supposed to threaten. Government is obviously the greatest potential danger to happiness, freedom, property, and life. By orders of magnitude.

  • ||

    You mean my advertising DIDN'T buy my Senator's vote? Fire the Marketing Manager immediately!!

  • Attorney||

    I don't get it either.

  • ||

    really, really don't get how some people grossly inflate the power of businesses

    It's becasue of the waxed moustaches and top hats that CEOs sport. I mean, c'mon! When was the last time a good guy had a waxed moustache, other than Rolly Fingers that is.

  • ||

    Dennis Gage on "My Classic Car" on SPEED Channel - good waxed 'stache.

  • ed||

    "Liberals" damn the ruling solely because they have an inherent hatred of corporations. Never mind that there are plenty of like-minded corporations (NBC, for instance) that will happily give millions to leftist causes. They equate "corporation" with "Republicanism," which they find repugnant.

  • Demwit||

    But Apple Computer company is good. And Whole Foods used to be.

  • GC||

    ed - sadly true. Substantively, I don't think this ruling particularly favors either party. That's one of the reasons the teeth-gnashing can only be explained easily as you suggest.

  • ed||

    You're right. The ruling does not favor anyone. The government is supposed to be neutral regarding speech. That's why it's odd that so-called "progressives" are the ones who are fretting over this ruling.

  • ||

    "To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored."

    Libel and fraud have always been "censored" (punished). Add in sedition and other outdated infractions, and you have a number of restrictions on speech, even in the pursuit of lawful corporate charters. Since the ratification of the Bill of Rights until recent times, commercial speech has always had more restrictions. To see Scalia deny that with the false claim that any corporation has free speech in pursuit of its corporate charter is insulting.

    While I agree with Scalia that corporate free speech should be protected and expanded, I'm not convinced that the framer's had that in mind. But I've already argued this today. Scalia has made a cottage industry out of being an asshole in place of high quality analysis.

  • ||

    Libel and fraud have always been "censored" (punished). Add in sedition and other outdated infractions, and you have a number of restrictions on speech, even in the pursuit of lawful corporate charters.

    Except those apply to the speech of anyone, they aren't special for corporations. You miss the point.

    Since the ratification of the Bill of Rights until recent times, commercial speech has always had more restrictions. To see Scalia deny that with the false claim that any corporation has free speech in pursuit of its corporate charter is insulting.

    Citation needed. Especially note that the question of whether the First Amendment applied to the states wasn't dealt with until, say, 1875 (Cruikshank), and of course then it wasn't, until that was overruled. The use of "100 years" by others is a lot more reasonable, although even then cases argued that corporations had some free speech.

    See, e.g,. Justice Thomas's concurrence in 44 Liquormart (and the case in general) for more discussion of the issue.

  • DevHyfes||

    John is right. Scalia doesn't deny that Fraud and Libel should be censored- merely that you can't change those rules based on the identity of the Speaker.

    The complaint about "Commercial Speech" isn't really germane. This entire case is about POLITICAL SPEECH, not commercial. Maybe there are bigger restrictions on commercial speech, but my bet is that they apply to individuals (i.e. sole proprietors) just as equally as full blown corporations.

  • ||

    "Scalia doesn't deny that Fraud and Libel should be censored- merely that you can't change those rules based on the identity of the Speaker."

    The rules for fraud are most certainly changed depending on the speaker.

  • ||

    "Citation needed."

    What? For the proposition that commercial speech has always had more restrictions? Are you kidding me? With the amount of regulation of advertising? I .. just.. wow. I'll give you restrictions on cigarette and booze ads for starters. How many private citizens are pre-emptively forbidden from conveying truthful information?

  • ||

    Incidentally, it's worth noting that as far as speech goes, Americans are much freer today than they were at the time of the Founding.

  • ||

    Yes they are. And even before that, read about Elizabethan England sometime. That place was a police state.

  • ||

    Good thing, too

  • Paul||

    They are in terms if entertainment speech. I'm not entirely convinced we're more free in the political realm.

  • ||

    I think we are, but it's a closer call on political speech.

  • ||

    The best government money can buy just got a lot more expensive. This is a good thing? This helps preserve our rights of free speech? Conservatives wake up. You seem more interested in the battle than winning the war.

  • Conservative||

    Let me sleep.

  • Jordan||

    If the government didn't have anything to sell in the first place, this wouldn't be a problem. Welcome to your activist government. Guess you don't like it when other activists use it, eh?

  • ||

    "richard|1.21.10 @ 5:42PM|#
    "The best government money can buy just got a lot more expensive."
    Unproven.
    "This is a good thing?"
    Begging the question
    "This helps preserve our rights of free speech?"
    Yes. Any limitation on speech is a limitation. "Congress shall make no law..."
    "Conservatives wake up. You seem more interested in the battle than winning the war."
    Prove it.

  • Jordan||

    As long as government is powerful enough to grant favors, this will be a problem. Limit government power and this, like so many other problems the government trys to solve at the expense of liberty, goes away.

  • Jordan||

    Grrr. The above was a reply to this:

    What's the need for Dems or the GOP? Corporate conglomerates foreign and domestic can form their own party. Dubai, China, Russian multinational oligarchs can buy elections now. Any individual freedom versus corporate profit convergence here? Just wondering...
    What about corporations who profit from war? GE, Boeing, etc can now directly spend millions for candidates that will make them billions; even if it is at odds with what the American citizenry wants...
  • ||

    “Under the majority's view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech."

    I think Stevens might be getting a little senile. Doesn't he know that the individuals that make up a corporation all have a right to vote? Maybe he thinks corporate members only get one vote between themselves...

  • Paul||

    Not to mention that the state can't search the offices of a corporation without a warrant. What, is Stevens suggesting that private property is no longer private when owned by an organized group of individuals?

    Given his position on Kelo, I think I already have my answer.

  • ||

    Justices don't always draft their opinions. Especially crazy old senile ones.

  • Paul||

    Scalia pretty much nailed it here.

    The problem with Stevens' "Glittering generality" is that Stevens seems to know what defines an excluded group, but yet fails to clearly identify it in constitutional terms. If we take the view of the critics of todays decision, we're told that "non profits" should have freedom of speech, but not "for profits".

    Why? What provision in the constitution is to be discovered that would draw a bright line between one group of organized individuals spending money to buy ads vs. another? If you ban one group of said individuals with no clear constitutional foundation, then you can ban another, and another, and another until free speech is completely wrecked for all but the lone individual who is using his or her unamplified voice in a public square.

  • ||

    He who speaks last always appears to "nail it", especially if he's a purist fanatic like Scalia. Dealing with complexity is so much less glamorous.

  • Sam Grove||

    Greedy businessmen is the left's favorite scapegoat. They have employed that bogeyman very successfully.

    Here' the leftist goal; get in power, any means to get there.

  • ||

    Among various careers, I am a woman, now 79, who actually owned and effeciently ran a small, 180 employee corporation. I would like to know the background of the conservatives commenting on this site; how many of them mirror my actual experience? As the founder of the Mayo Clinic said, "The more you know about one thing, the less you know about everything else." I do not know when dictionaries began defining, as synonyms, the words buying and speaking?

  • ||

    Want to define "conservative"?
    Suffice to say as a successful owner, seller, manager (max ~250 employees) of, and consultant to, business, and an old fart, I won't 'mirror' your experience.

  • anonymous||

    Well, buying would involve paying someone money in exchange for a good or service. In the context of government officials, this would be called "bribery". In the context of large groups of voters, this would be called "Democratic machine politics".

    "Speaking" would be more appropriate if we were discussing an organization that, say, produced a documentary that was critical of a powerful politician. You know, like what happened in the case the Supreme Court decided today.

  • anonymous||

    "Under the majority's view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech."

    Yes, the secret ballot is like speech. Except that you aren't supposed to publicly express yourself. Cuz it's a secret.

    Fortunately, we know the next step in the progressive plan:
    1) No free speech for convicted felons, even after release, in certain states.
    2) No free speech for those under 18.
    3) Only U.S. citizens may possess the right to speak.
    4) Any male that wishes to exercise the right to free speech must register for the draft.
    5) You must be registered with government speech officials to speak. You may need to present government identification to ensure that you possess the right to speak.
    6) You may only speak in your district of residence.
    7) You may speak once every 2 to 6 six years, depending on the issue.

  • RM||

    Those under 18 are already censored, see public school speech/dress codes.

  • ||

    Stevens is the Justice who said that as an citizen of the United States you should be able to walk down the street without interferrence by the government. Is that wrong?

  • ||

    Uh, what would that have to do with his comments in this case?
    BTW, I certainly agree.

  • ||

    How about printing some of Stevens' dissent? At least your readers would have some idea of that which Scalia is rebutting.

  • 12345||

    http://www.law.cornell.edu/sup.....05.ZX.html

  • Westwood||

    In the past 24 hours I have read numerous articles and opinion pieces across the political spectrum on this decision. Hoping for worry from both sides (at least skepticism) I found only more verbal compost to feed the Culture Wars (esp. read Bradley's opinion piece in the WSJ about how this compares with upholding speech rights for pornographers - culture warriors take note).
    Writers in support of the decision point out that Labor Unions were included in the Citizen's United case hoping, I suppose, to assuage the fears of Democrats. Unfortunately for that comparison, unions don't have anything close to the buying power of even one of the top Fortune 500 companies. But that's really beside the point: the Supreme Court, by this decision, may have just created a pseudo-citizen with the right to vote in dollar format. The implications are far-reaching and very worrisome.

  • Beezard||

    "unions don't have anything close to the buying power of even one of the top Fortune 500 companies"

    But they do have a portion of weekly dues that go to support specific campaigns. Add public sector unions and have a monstrous amount of dough.

  • agitator||

    The more I read of Scalia, the less I like him. I have yet to find anybody that can make any good argument that people have an unalienable right to limited liability, which is exactly what a corporation or other artificial entity consists of - a grant of limited liability from The People to another group of people to operate in a manner consistent with what the grantors of that limited liability see is the public interest. Natural rights are a birthright, corporations only have those powers and authorities delegated to them by their creators. It is not possible for a corporation to have unalienable, natural rights - that's why they are required to have a revokable corporate charter.

    Everybody wants their cake and to eat it too. Nobody *has* to do business as a corporation. They do it because they don't want the personal responsibility when a lawsuit arises. I could run a newspaper, a radio/tv station, or any other business without incorporating and that would be my right, and nobody could regulate the content or manner of my political speech. Oh, but I might get sued and somebody could come after my house! Life is tough and then you die. If you don't want the responsibility inherent in the right of free speech, keep your mouth shut; you can't ask for the privilege of limited liabilty and then whine when it comes with strings attached.

    While I'm on the subject of Scalia... The end result of the Heller decision was that you purportedly have a Constitutional right to ask for government permission to do something illegal. Say what? Black's 6th defines "license" as "permission to do that which would otherwise be illegal." Anything requiring a license must necessarily have been declared to be illegal prior to the license requirement. Scalia and the other high priests know this. Scalia went so far as to prompt Heller's "lawyers" that "you want to answer 'yes' to that question" yet when he asked if they had no problem with gun licensing and they responded that licensing was ok with them, he fell silent. That's the kind of behavior I expect from a government weasel, not a constitutional conservative. Think about it.

  • joeschmo||

    Scalia is an intellectual bully, and very tiresome. He's staked his career on the whole "constitutional literalism" idea, and I suppose to some, can do a decent job arguing his points, even when these arguments are an obvious affront to common sense.

    According to Scalia, it seems the legislative branch across the good ol USofA has unfairly blocked the freedoms of corporations for some time. Our legislators - municipal, state and federal - have incorrectly, and for almost a century, guarded against political corruption that could result from unfettered corporate spending during an election.

    Scalia points out that the 1st amendment did not explicitly define freedom of speech as belonging to an 'individual', but could in theory be viewed as a basic freedom belonging to and to be used by any collection of individuals, be they incorporated or not. Therefore, the great intellectual concludes, that in absence of such an explicit restriction or textual limitation, we therefore must accept that freedom of speech as a concept be applied to corporations and citizens alike.

    Wow, how profound! And for many of the 'intellectuals' who comment on this site, this is a real 'smack down' of Stevens' rebuttal.

    Ohh my.

  • ||

    joeschmo"constitutional literalism"???
    That is exactly what a Supreme Court Justice's job is. To hold up any law or government action to the constitution to determine weather or not it violates what is written.

  • Beezard||

    "Therefore, the great intellectual concludes, that in absence of such an explicit restriction or textual limitation, we therefore must accept that freedom of speech as a concept be applied to corporations and citizens alike."

    Well, that's kind of what the Constitution is...an explicit restriction or textual limitation on the federal government.

  • Anonymous||

    Why has nobody thought to consider why the founders included provisions for freedom of speech and press in the first amendment? It was to protect anyone from being imprisoned for criticizing the government. A corporation cannot be imprisoned: ergo, the freedom of speech and press provision of the first amendment does not apply to corporations.

  • ||

    Scalia is as big of a judicial activist as any of them. Only Taney, who declared blacks are not even human, has gone further than Scalia. Scalia says corporations are human, and no limit can be placed on their purchase of political influence.

    Since corporations are owned by people all over the world -- this allows our adversaries unlimited potential to buy political power. And guess what -- unlimited power corrupts absolutely.

  • wizard of oz books||

    With many new announcement about the wizard of oz movies in the news, you might want to consider starting to obtain Wizard of Oz books series either as collectible or investment at www.RareOzBooks.com.

  • ||

    Stevens v. Scalia on United Citizens.

    The patriots who Scalia refers to understood that the Redcoats, Hessians, and Tories were working in associations. Today's ununited citizens know that the Mafia frequently works with congeries or associations of citizens. When humans ACT in association - for greed, crime or treason — they are NOT due an automatic full license to DROWN the nation's political discourse in a flood of advertising.
    Lon Clay Hill (Host of 'Deep Autumn Flowers')

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement