Federal Judge: “Taken seriously, Citizens United requires that corporations and individuals be afforded equal rights to political speech, unqualified.”

Federal District Judge James C. Cacheris has issued a new opinion that narrows his decision last month in U.S. v. Danielczyk, where he held that under the Supreme Court’s decision in Citizens United v. F.E.C., the federal ban on corporations making direct contributions to federal political candidates is now unconstitutional. In the opinion he issued yesterday, Cacheris pulled back a bit, holding that the federal ban “is unconstitutional as applied to the circumstances of this case, as opposed to being unconstitutional as applied to all corporate donations.”

This revision is hardly going to settle the question, however, since Cacheris also maintained that, “Taken seriously, Citizens United requires that corporations and individuals be afforded equal rights to political speech, unqualified.” It’s ultimately going to be up to the Supreme Court to resolve whether direct corporate donations are permissible under the First Amendment. And as SCOTUSblog’s Lyle Denniston observed yesterday, the Court could weigh in relatively soon:

A federal appeals court in another Circuit (the Eighth) has already ruled the opposite way, saying it is up to the Supreme Court to decide whether Citizens United has any impact on the corporate donation ban; Judge Cacheris acknowledged that ruling on Tuesday, but refused to follow it.  Even if his new ruling to the contrary were to be overturned in his own Circuit (the Fourth), the issue is headed toward the Supreme Court within a matter of months in one or more cases.  Attorneys in the Eighth Circuit Court are already setting up that case for an attempt to get it before the Supreme Court.

Stay tuned.

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  • Hugh Akston||

    The idea that a right considered fundamental and inviolable when applied to individuals acting alone suddenly evaporates when you have multiple people acting in concert is one part of the Team Blue faith that I will never understand.

  • ||

    Probably related to the idea of collective guilt and responsibility, of which the lefty/progressive is also quite fond.

  • ||

    That and their abhorance towards anything practical or economic. Note, they never have a problem with corporate owned newspapers. That is different in their eyes because the collective speech is done by someone in the priesthood and pure. Ordinary corporate speech is, because of who is speaking, necessarily crass and destructive. Who gave the tradesman a right to have a say on things?

  • ||

    A difficulty in that line of reasoning is that there is significant caselaw making it clear that the government cannot require licensing or otherwise create qualifications for being, legally speaking, the press. For the obvious reason that we don't want the government to end up controlling the press.

    Because of that, it is very difficult to legally distinguish between a blogger and a newspaper. Their rights are and should be the same. It also means that distinguishing between the speech of the corporate "press" and the speech of businesses without media arms is quite difficult.

  • MNG||

    "Note, they never have a problem with corporate owned newspapers."

    The Press is covered explictly in the first Amendment, interestingly in a clause separate from the right to free speech. Corporations are not mentioned.

  • ||

    For the most part, the freedom of the press is a subset of the freedom of speech. It's not a special right enjoyed by someone registered as a member of the press. We all have press rights. It's actually a big problem with the campaign finance laws, in and of itself.

  • MNG||

    According to caselaw, yes, but I'm talking about the text (if you're free to jettison caselaw on the IC clause I'm free to jettison it on the 1st ;)). It seems passing strange that there would be a separate clause for the press if it were to fall under the general freedom of speech, and if the press are corporations then it may follow that corporations, including press corporations, were not under the protection of the general clause.

  • ||

    That's an absurd analogy. Expansion of government power beyond any justifiable or rational interpretation of the Commerce Clause is an act of tyranny, executed by those who benefit from such expansion. This expansion is contrary to the entire purpose of the Constitution. So it's not the same thing at all. One thing is an enumerated government power, the other is expressly forbidding government to interfere with a particular right.

    How would you like to parse the definition of "press"? Established newspapers? A guy with a printer? See why we can't separate this from an individual right?

  • MNG||

    Please, no debate on the morality of the IC caselaw today, please, I'm already weary from smacking John around over Israel all morning. My point is that when we debate the IC clause you don't feel bound by current caselaw; neither should I be bound by the current caselaw that says that the press clause is subsumed by the general free speech clause.

  • ||

    You can be bound or not bound all you want, but it's a foolish comparison to make. Especially if you care about civil liberties at all.

  • Pip||

    "Please, no debate on the morality of the IC caselaw today, please, I'm already weary from smacking John around over Israel all morning."

    What a goddamn piece of shit.

  • ||

    Groan. Freedom of the press, is freedom of the written word, or the printing press. It has nothing to do with protecting the speech of a particular industry.

  • ||

    How would you like to parse the definition of "press"?

    Let's see. FOX News is not engaged in legitimate journalism.

    Ergo, freedom of the press need not apply to them.

  • Pip||

    By your reasoning, clowns have no right to free speech as they are not specifically mentioned. Given that, you need to stop speaking.

  • ||

    Freedom of assembly?

  • MJ||

    The "press" in the clause refers to the printing press. A person or organizations of persons has a right to use a printing press to share their ideas. It does not refer exclusively to the journalism profession.

    MNG, I do not think that you are stupid, but if you actually believe what you posted at 3:25, I may have to revise that opinion.

  • EscapedWestOfTheBigMuddy||

    The press that you have the freedom of is not some institution, it's the big clunky iron thing that prints multiple copies some text or pictures.

    You (and I and anonbot and everyone else) are free to own and operation the tools on the information age.

  • EscapedWestOfTheBigMuddy||

    s/operation/operate/

    That's what I get for revising sentence without due care. Seems I am qualified for the Miami PD.

  • ||

    Exactly. Corporations are not mentioned when they say "Congress shall make no law." Damn, that's simple. Are we done now?

  • MNG||

    Well, if you want to be that way it says "freedom of speech" not "freedom of money to be used in publicizing speech."

  • ||

    You just said "publicizing speech". So it is speech. So you have literally no argument. Are we done now?

  • MNG||

    No, the speech is used to publicize the speech, like a fork is used to beat an egg, but that don't make the fork the egg.

  • cynical||

    Just like your mouth is used to create speech, but isn't actually speech. So the government could cut out the tongues of people that speak out against it, and that would not violate the first amendment.

  • ||

    Oh, Episiarch... Everyone knows the right to free speech is the right to whisper whatever you want in your basement in the middle of the night while totally alone and is absolutely nothing else.

  • MNG||

    Shorter SF: The fork IS the egg!

  • Fluffy||

    In this case, it is.

    The money repeats the speech, louder.

    It's still speech.

  • ||

    The freedom of the press doesn't say anything about being allowed to use ink and paper either, so I guess the NYT would be hunky dory with a ban on ink.

  • MNG||

    See my 3:26 post, that was exaclty my point, baldly pointing to the text is going to leave everyone here hanging a bit.

  • Jeffersonian||

    Or even "freedom of money to buy a press."

  • ||

    Hey, the government should just nationalize printing presses and only sell them to people who say nice things about it! Problem solved!

  • ||

    So, MNG is going to take the position that freedom of speech really means the freedom to conversation, that is, the right to spread your views solely via your unamplified voice.

    So noted.

    Funny, isn't it, how some people take expansive views of government powers, and restrictive views of rights?

  • some guy||

    But your unamplified voice still depends on the air around us to be carried to other people's ears. Can't the Feds regulate our use of the air, or at least air in public spaces?

  • ||

    freedom of money

    Well, what's money?

    I think maybe the existance of physical money creates this confusion that we're talking about a tool or an object of some kind.
    But isn't money really a subjective thing? It's a concrete representative of an abstract concept: value. Something one acquires via exchange or produces oneself.

    Let's say I'm a person who owns a printing press. I can make pamphlets and hand them out, and no "money" is involved, except in the purchase of materials. Or I could sell greeting cards and give the money to an organization with a video camera.

    Why is (a) a permissible freedom of speech, but (b) not? The "money" is really just a mechanism by which I transfer my speech to a different media organ.

    And what about people who don't own printing presses and aren't writers? Should they be denied the right to hire the services of someone who is, in exchange for money?

  • ||

    Corporations are not mentioned.

    Neither are individuals. Indeed, it's not specified which entities possess the freedom of speech, so presumably it applies to anyone capable of producing speech.

  • Hugh Akston||

    That doesn't seem like such a difficult concept.

  • Pip||

    It does to a moron like Minge.

  • ||

    Or it applies to no one! My God!

  • proegg antichicken||

    Even African Grey parrots? Furbies?

  • ||

    Furbies are subject to summary, content-neutral destruction regardless of their speech, so it's a moot point.

  • Zeb||

    The press is the medium, not the specific institution. Freedom of the press means that anyone (or any group) can publish anything they want to. Since the press was the only means of mass communication at the time, it should naturally be extended to any medium of mass communication. "The Press" is not limited to established news publications. The press is a medium that shall not be limited by the government, no matter who is using it.
    This is why I have argued all along that this should be framed in terms of press freedom rather than freedom of speech. Election ads are part of "the press". Publishing a dirty book or a subversive pamphlet is press. This would all be much simpler if we called speech "speech" (i.e. one person opens his mouth and speaks) and mass communication of any kind "press".

  • MNG||

    "This is why I have argued all along that this should be framed in terms of press freedom rather than freedom of speech. Election ads are part of "the press"."

    Now that's a good f*cking point. Have to think on it.

  • ||

    What is the definition of mass communications? What happens when that speech is amplified by electrical means? Are the words coming out my mouth "speech," but the amplification "the press?" Thus, the same words are subject to different standards, which could make for some terrible case law. Speech is speech is speech. Full stop.

    I'm not sure why the Framers made this distinction; probably for no other reason than to be sure that everyone knows that they meant "the press" as well when they wrote of the freedom of speech.

    The fact that they did just muddies the amendment and its meaning. But as we have seen, the default setting is to vindicate Madison's concerns. The state points to the BoR and says "See? See? It doesn't say you have that right! Take him away boys." So, better that it be as specific as possible. Best that we don't need it all, but thug rules apply.

  • Barely Suppressed Rage||

    I'm not sure why the Framers made this distinction

    Because back in those days, speech = guy standing on the corner, announcing his opinion of the currently elected officeholders, or a couple friends meeting at the coffeehouse or pub and criticizing the president. In jolly olde England, either of those could have gotten you arrested.

    Press = newspapers and other printed publications; e.g., Poor Richard's Almanack; etc. You're sitting on a park bench, reading the newspaper - no "speech" going on there; you're reading "the press".

    I agree that this distinction has become quite blurred and potentially less significant in the intervening years. The idea is freedom to express and communicate ideas and opinions, especially those regarding the government and politics.

  • ||

    I understand that, but I just think that it's a meaningless distinction. What are you doing in the press, if not speaking?

    Of course, as the OT put it, any speech that requires capital to be expressed to a large audience is "the press", which includes campaign ads. That only buttresses the point that money applied to speech is protected as either speech or press rights.

  • ||

    Bullshit arguments like this are why the bill of rights was a mistake. The government is constrained by the powers granted it in the Constitution, individuals are constrained only by the rights of other individuals.

  • Barely Suppressed Rage||

    I dunno - can you imagine the shenanigans they would have gotten up to long ago if there were not BoR amendments?

  • Zeb||

    My point is that the press has exactly the same protection as speech, so it really doesn't matter where you draw the line. I just think it makes more sense to talk about things like election ads as press rather than speech.

  • cynical||

    Would be more to-the-point to specify a primary right (communication itself) and a necessary and proper subordinate right (tools and resources used to achieve communication). The latter would explicitly include vocal cords and media technology, but could also circumstantially include money, venues, paper, ink, electricity, or anything else that government might try to attack or restrict in order to find a loophole to shut its critics up.

  • Pip||

    Jesus Christ you are annoying. You know a lot of Jews run newspapers.

  • Maine Skinhead||

    Don't you know the weather is the only thing the Joos don't control?

  • Joos||

    We're working on it.

  • ||

    The other thing I think RC is liberals judge everything and everyone by what their intentions are. You and I look at Exon and the Sierra Club and see two powerful well funded interests that should be free to fight it out in political arena. A liberal sees one as being on his side and thus a fundementally different thing than the other. The Sierra Club is good and therefore cannot be the same as a corporation. In the end, it is a simple and crude calculation that those who are on our side and do good have a right to collective speech and those who oppose us do not.

  • MNG||

    Sort of, but a bit simplistic. Corporations are machines built by legislatures to work towards one goal: maximize investor profit. They are not supposed to be patriotic, civic minded or such. Now, I happen to think that is a wonderful thing for wealth creation, I'm hardly anti-corporate. But I can see how that is a less than ideal thing in the civic arena. And so some people want to keep that machine out of that arena, while of course allowing the individuals who invest, manage and work for the machine to be free to get involved in the civic arena.

  • ||

    Except, you fucking imbecile, corporations exist under the rule of the State. If you're going to have this damn boot on everyone's neck, then everyone has equal rights to squawk about it.

    You and yours are the hypocrites here minge. We believe in everyone's right to free speech, you are much more concerned with ensuring that the big money donors are unions and not corporations.

  • MNG||

    Er, you do know that Citizens United lifted limits on unions too, right?

  • ||

    Most of us are in favor of the Citizens United decision. Even though it lifted limits on unions, too.

  • KPres||

    So individuals are never profit-seeking? Of course they are. Seems to me, then, if it's the profit motive that you have a problem with, you'll need to limit individuals' political activity as well.

    For example, maybe poor people shouldn't be able to work towards an increase in the welfare payments, since they're motives are likely profit-seeking.

    The reality is that we're all profit-seeking and it's time to get over the childish idea that people are motivated by altruism.

  • MNG||

    Individuals are profit seeking among other things. Corporations are arranged to be single-mindedly profit seeking (hell, they have a fiduciary duty to be so), that is, well, my point.

  • ||

    There are plenty of individuals whose entire activity in the political arena is to seek profit. Should they be banned from speaking also?

  • MNG||

    They are at least capable of other motivation. Legally the corporation is not.

  • KPres||

    "They are at least capable of other motivation. Legally the corporation is not."

    It makes no difference. You've identified the profit motive as some kind of corrupting force in the political environment, which means that any regulations should target the profit motive ,i>itself, regardless of the where it comes from.

    Ergo, according to you, poor people shouldn't be able to vote when welfare programs are at stake.

  • ||

    No, you see Kpres, individuals are not limited liability corporations, which means when an individual says something illegal, all his shareholders can be sued. And he can be...uh... killed.

    LLCs have all those protections so it means they can't give money to political campaigns like non-profits... unions for example, whose leadership is good and pure and altruistic and possess an inner glow of godly light and never make one thin dime off their efforts and in no way "profit" (ew, icky) from keeping the unions politically connected through donations, a portion of which is extracted from members to be given to politicians they don't support.

  • ||

    Thanks MNG you just gave a perfect example of what I am talking about.

    "Corporations are machines built by legislatures to work towards one goal: maximize investor profit."

    A corporation's interests therefore must be malevolent and someone like the Sierra Club's must be good. The idea that the Sierra Club's interests could do real harm to the country or that a coproration's interests could also coincide with the good of the country never occurs to you. Neither does the idea that it is not for you or the government to judge whose interests are worthy of freedom and whose are not.

  • MNG||

    "A corporation's interests therefore must be malevolent and someone like the Sierra Club's must be good."

    Er, it is the structure and legal duty of corporations to have the one interest to maximize profit John. And it's not that this is malevolent, in the right sphere it is a fantastic thing. As a stockholder I love that managers must be guided by that one goal.

    But as a member of a polity I don't think that is a mindset that should have too much effect on the polity.

  • ||

    "But as a member of a polity I don't think that is a mindset that should have too much effect on the polity."

    Which is just another way of saying that it is automatically malevolent. The idea that corporations could support things in politics that benefit them and society as a whole is beyond your comprehension. You are just too prejudiced and ignorant to grasp the concept that the interests of any association of people be it a union, a corporation, interest group, whatever is going to be a mixed bag that sometimes coincides with the commone good and sometimes doesn't. And when it does is for the electorate to decide not you. That idea is beyond you. You will never understand it. And it is pointless to try to make you understand it.

  • MNG||

    I don't think it is malevolent that wen managing my money a corporate manager must first and foremost try to maximize it. As I've said, I think that fiduciary duty is a GREAT (maybe if i put it in all caps this time you will get it) thing.

    I do think that when they enter the political arena with that mindset it is not good for the polity.

  • ||

    "I do think that when they enter the political arena with that mindset it is not good for the polity."

    Well isn't that special. I don't think entering the polity with a fanatical commitment to protecting the environment is a good for the polity. But so what? That is for the polity to decide not you or I. In the end your argument boils down to exactly what I said it boiled down to, a crude calculation that those who are on our side and do good have a right to collective speech and those who oppose us do not.

  • ||

    But as a member of a polity I don't think that is a mindset that should have too much effect on the polity.

    I actually think MNG has a decent point here.

    If we're concerned about rent-seeking and corporate manipulation, then any corporation that is guided by the principle of maximizing profit is more or less legally bound to rend-seek and manipulate regulations.

    Just as I think it's stupid to tell people to "vote their self-interest" by voting for more free shit, it's stupid to license corporations to vote their self-interest.

    But that's why we have strict limits on the power of the state. In any environment where the state is handing out favors, human self-interest (as well as corporate self-interest) absolutely guarenttees that favors will be granted and powers will be abused to favor some interests over others. It doesn't really matter if they are corporate interests or union interests, or the interests of any particular group or class.

    Everyone is self-interested. Everyone is profit seeking.
    Corporations are just financial vehicles for collections of people anyway.

    Given that, it's idiotic to rely on voters (or corporations) voting against their self-interest to ensure the equity and fairness of the regulations or the tax code. The only way to ensure it is to limit the powers of the state beforehand.

  • Barely Suppressed Rage||

    By the way, the Sierra Club IS a corporation. It is a non-stock, non-profit one, but it is a corporation nonetheless. It has a Board of Directors and everything.

    The Sierra Club Foundation is the entity that raises money through tax-free donations, to fund the operations and activities of the Sierra Club.

    Make no mistake, the people who run SC - and every other non-profit in the U.S. - are extremely savvy with regard to the tax code and corporate law. Most are organized as non-stock corporations, and the big ones pay big-time tax attorneys a lot of money to advise them with regards to making sure their income does not become taxable.

    This I know from personal experience.

  • Ray Pew||

    Sort of, but a bit simplistic. Corporations are machines built by legislatures to work towards one goal: maximize investor profit. They are not supposed to be patriotic, civic minded or such. Now, I happen to think that is a wonderful thing for wealth creation, I'm hardly anti-corporate. But I can see how that is a less than ideal thing in the civic arena. And so some people want to keep that machine out of that arena, while of course allowing the individuals who invest, manage and work for the machine to be free to get involved in the civic arena.

    It's ironic that you state that John's description is simplistic and then you go on to elaborate a very simplistic perception of reality.

    The "corporation" cannot be any less ideal in the civic arena than the individual, seeing as the individual has all the capabilities of being unpatriotic, anti-civic minded and such. Therefore, ALL must be allowed freedom of speech or NONE may be allowed freedom of speech.

  • MNG||

    No, as I said above people may be capable of being myopically profit minded but corporations are legally bound and structured to be that way.

  • Ray Pew||

    No, as I said above people may be capable of being myopically profit minded but corporations are legally bound and structured to be that way.

    And this is irrelevant and partially incorrect, as Fluffy explained. It is irrelevant because there is no inherent immorality involved with the "profit motive".

  • Fluffy||

    Citizens United was a corporation.

    Is it your claim that they were legally bound to be myopically focused on profit?

    Because they weren't.

  • ||

    So, your saying we should ban corporations from speaking, and then pray that the people won't be myopic and profit minded.

  • Fluffy||

    You're describing publicly traded corporations.

    If three friends and I form a corporation and don't list it on NASDAQ, we can put any damn thing we want in the bylaws about the purpose of the corporation. We don't have to maximize profit. Ask Ben and Jerry.

  • ||

    But Fluffy Ben and Jerry are liberals. They have a right to free speech. That is different. You just not getting the concept here are you?

  • Chinny Chin Chin||

    Somewhat off topic, but I've seen the "corporations exist only to maximize profit" thing quite a bit.

    Is that technically true? Are corporations legally bound to extract max dollars, regardless of their mission statement?

  • Chinny Chin Chin||

    Oh, answered by Fluffy.

  • MJ||

    "Corporations are machines built by legislatures to work towards one goal: maximize investor profit."

    No, corporations are organizations formed by people with a specific goal in mind. Maximizing profit is one such goal, but it is not the only possible one. Citizen's United itself certainly was not organized with the goal of making a profit.

  • DJF||

    Why do some so want the limited liability corporation, a creature created by government granted privilege to have the same rights a individuals. Why should individual speech have to stand up and take responsibility for itself yet the limited liability corporation speech has its liability limited by law?

  • ||

    What punishments should apply to individual speech?

  • Hugh Akston||

    Government protects and enforces every kind of contract between people. That is one of its legitimate functions.

    If you think the First Amendment applies to any group of two or more people acting in concert, then the burden is on you to explain why a specific kind of contractual arrangement is excluded from that.

  • DJF||

    But limited liability is not a contract between people, it is a special privilege awarded by government. Individuals don’t have the ability to contract such broad protections under contract since the contracts don’t apply to third parties while on the other hand the government imposed limited liability forces a contract on third parties

  • MNG||

    Ding Ding!

    It's always interesting to see libertarians defend corporations so when they are essentially groups that are granted special priviliges and protections via government.

  • KPres||

    It's interesting to me that the ONLY political group I've EVER heard question limited liability is libertarians.

  • MNG||

    Dude, why do you think liberals are so critical of corporations? Their limited liability is often mentioned as one of the reasons.

  • KPres||

    Haha! Please. I've never heard any liberal criticize limited liability. Even when I've come out strongly against it, none of them backed me up.

    Liberals hate corporations because rich people own more stock than poor people, making them a wonderful tool to incite class warfare.

  • ||

    No it isn't. Their greed, evilness, environmental destruction, and opposition to Obama's wonderfulness are often mentioned as reasons, but I don't recall ever seeing "limited liability" stated as a reason for a liberal hating corporations. Then again, you, for all your many many faults, are calmer and somewhat more rational than the liberals I see, which are mostly on the Atlantic, Huffpo, and MSM comment tabs.

  • cynical||

    So, liberals are really mad at corporations because they can't sue retirees who put their money in mutual funds?

    Progressives are angry at corporations because they pursue the agenda specified in their charter, which is often not in line with the progressive agenda. The progressive ideal (as opposed to the straightforwardly hostile socialist ideal) is to get various corporations to sit down with government and labor and other corporations from related industries and figure out how they can cooperate to promote the progressive view of social justice under the benevolent guidance of a technocratic central bureau. PPACA is a model for this mode of thought. Not class warfare, but class cooperation, with politicians, MBAs, and union leaders working together to fuck us all.

    This is corporatism, a necessary component of fascism (the other key component is an unchecked militaristic police state, which we don't have, thank goodness. Imagine if we were in an unending state of war against a nebulous and ever-changing enemy, or our chief executive waged wars without even the tiniest fig leaf of Congressional approval, or if every last government department had its own paramilitary squad of jackboots. We'd sure be fucked then.)

  • Fluffy||

    That's fair.

    But in the awarding of privileges, the state has to follow the Constitution.

    Having allowed the corporate form of association to exist, the state can now regulate its operations, but only in accordance with the Constitution.

    And the Constitution says that the state can't restrict speech.

    So if you don't want corporations to speak, you have to get rid of that form of association entirely. Do away with it, and then we don't have to haggle about what it can and cannot do.

    As long as you are unwilling or unable to do that, the individuals who make up the corporation get to use that associational vehicle to speak. Those are the breaks.

  • Hugh Akston||

    I'm not going to defend limited liability as an institution. Any good libertarian should oppose the government granting special legal privileges. But I'm not convinced that the existence of that privilege is grounds for abrogating an otherwise universal right.

  • ||

    Of course, limited liability is not a special privilege. It is simply a reflection of basic agency law, which in turn reflects basic libertarian principles.

    Limited liability means that a passive investor who takes no role in the management or activities of the corporation cannot be held liable for those things the corporation does, which he has no role in.

    If you think passive shareholders should have full, joint and several liability for all liabilites of the corporation, I invite you to explain why banks or bondholders shouldn't, as well.

  • Hugh Akston||

    I should read up on limited liability law, or at the very least stop talking out of my ass about it.

  • ||

    exactly

  • Jim||

    If you think passive shareholders should have full, joint and several liability for all liabilites of the corporation, I invite you to explain why banks or bondholders shouldn't, as well.

    I do think they should share some responsibility. It would be determined in the courts, the extent to which the particular bond or shareholder had knowledge of the activity.

    This is a mediocre analogy, because it involves criminal law, but it's illustrative since individuals can't claim LLC protections in criminal enterprises. Say someone is funding Michael Vick's dogfighting ring. The courts are fully capable of determining levels of responsibility based on if 1)the person giving funds is in full knowledge of the crimes, 2)the person is being "willfully ignorant" in an attempt to protect themselves, or 3)the person gave funds to the organization which presented itself under completely false pretences, and they had no inkling that anything bad was happening.

    Those kinds of distinctions are made all the time in criminal courts, so I don't see why they couldn't be made in the case of lawsuits against corps, etc.

  • MJ||

    "I do think they should share some responsibility. It would be determined in the courts, the extent to which the particular bond or shareholder had knowledge of the activity."

    For a corporation with a massive amount of shareholders like Ford or GE, exacly how are the courts going to determine liability on a shareholder by shareholder basis? I don't think you grasp the enormity of what you are suggesting. Furthermore, without limited liability, if you own one share of a corporation that goes under, all your assets are at risk. Do really think that's a better or even workable state of affairs?

  • Jim||

    First, I'm not suggesting that LL wouldn't exist. Only that it would be incorporated into the legal agreement between shareholders and the corporation (i.e. that the operating management of the corporation would absorb liability and not pass any on to shareholders). What I object to is having this codified in law, instead of in individual contract. I think the obvious preference for this would drive most companies to have LL language in their stock offerings, however, you could have a high-risk, high-reward offering which pays much better dividends, but doesn't waive liability, etc.

    For a corporation with a massive amount of shareholders like Ford or GE, exacly how are the courts going to determine liability on a shareholder by shareholder basis?

    Easily. Passive shareholders, who have never voted on shareholder issues, nor served in a position with company management, could have a blanket declaration from the courts that they had no knowledge and no responsibility. That would cover the vast majority of small-time shareholders. That way the option is still open for much smaller companies (whose stockholders are more involved in management decisions), or those with activist holders, to be open to liability.

  • ||

    you could have a high-risk, high-reward offering which pays much better dividends, but doesn't waive liability, etc.

    That's actually an interesting and creative idea. Thanks!

  • cynical||

    No, but maybe that's a good thing? I don't know that small time or institutional investors really have the will to actually govern the institutions they allegedly "own", so maybe increasing the risk premium would cause them to pick up lending instead, leaving ownership to those who intend to take up the responsibilities that come with it.

  • Barely Suppressed Rage||

    Those kinds of distinctions are made all the time in criminal courts, so I don't see why they couldn't be made in the case of lawsuits against corps, etc.

    What makes you think they're not?

  • Jim||

    What makes you think they're not?

    The conversation is about limited liability for shareholders, so no, they are not being made (as long as the shareholders are under the liability protection).

  • KPres||

    They should!

  • ||

    What does that even mean? If I defame someone in a way that causes him a billion dollars in provable damages, what is he going to get out of me? Out of a big business, he might get his money back. So where's the accountability?

    The limited liability is to protect investors, not "the corporation." In the U.S., common folk like us are major shareholders. It's the left that anthropomorphizes limited liability entities--yet doesn't do the same for consumer advocacy groups, unions, and other preferred organizations. Odd how that works, huh?

  • MNG||

    Perhaps what he is getting at is that if you enter the political arena yourself you would not have the same protections as a corporate entity you organize to do the same. You would not have limited liability for example, or perpetual existence for another.

  • ||

    So what?

  • MNG||

    Well, there are some advantages to those two things, right? That would give advantages to corporate speakers.

  • ||

    There are plenty of advocacy organizations that are not organized for business purposes, and they have immense political power. Probably the single most powerful lobby is the AARP.

  • MNG||

    The idea is 1. take the advantages I mention and 2. wed them to the myopic goal of maximizing profit and you get something you don't want having a big part in your polity.

  • ||

    What's the difference between a paper and another business? Recalling that there is no constitutional definition of "press"? What's the difference between the Consumers Union and a business? What's the difference between a union and a business? What's the difference between a government entity and a business?

    Limited liability is bad from the speech perspective because why? A business may be able to project its message better because it's wealthier, but the same logic works for a rich individual, a group of people who pool their resources, a church, a union, a whatever. The limited liability isn't a magic shield, as to have assets to use to spread your message, you have to have assets within your business entity. More than some crazed guy blogging has, which means that there's potentially more accountability as far as potential damages go in the business speech case.

    I do not get at all the left's aversion to limited liability. Without it, we're likely living in a society with a tenth or less of the wealth we have today. Yet that's the only hook in this debate, as businesses aren't always limited liability--partnerships, for instance.

  • MNG||

    "I do not get at all the left's aversion to limited liability."

    Er, it's a special protection granted to some by the government that helps them evade responsibility? Given that it's a wonder more libertarians don't hate it.

  • Fluffy||

    Anyone with a passing familiarity with the history of finance could recreate limited liability with other instruments.

    You'd just have to research high-medieval and Renaissance economic and legal history to have a shitload of ideas right off the bat.

    The corporate form is simply a convenience designed to take what would otherwise be murky subterfuges that no one could control and give them a way to exist in daylight where they can at least be seen.

  • ||

    Anyone with a passing familiarity with the history of finance could recreate limited liability with other instruments.

    I'm not sure they could. If what creates joint and several liability is someone funding the corporation (which is what a shareholder does), why wouldn't anyone who provides funding (a bank making loan, a bondholder buying a bond) also be subject to joint and several liability?

  • ||

    You could easily RC. All of the old "robber barons" of the gilded age had limited liability partnerships that in no way depended on state granted privileges. If you can build Standard Oil with those documents you can build anything.

  • ||

    All of the old "robber barons" of the gilded age had limited liability partnerships that in no way depended on state granted privileges.

    These depended, I'm sure, on the principles of agency law that were eventually enshrined in limited liability corporate law. They were set up, I'll bet, so that the robber barons looked like passive investors.

    To get rid of limited liability for passive investors in the form of shareholders, I think you probably need to get rid of it for every passive investor (unless you are going to be arbitary and unprincipled).

    Which means, I think, that anyone who puts money into an entity in any form takes on joint and several liability. I'm not sure where you would draw the line. Certainly the distinction between "debt" and "equity" is a frail reed, as anyone who works in corporate finance can tell you.

  • ||

    That's just nuts. First of all, it doesn't absolve the entity itself of liability. Any company I've worked for has never taken the position, "What the fuck, the shareholders are insulated." Not to mention that limited liability isn't some infinite shield. A person who intentionally commits a crime trying to hide behind (and use) a limited liability entity is not going to be protected. People often confuse the difficulty in proving liability for executive malfeasance with some sort of special protection.

    Second, that protection is available to all of us. I can form an S corp tomorrow. Just me. And it's not even very expensive.

  • ||

    "Er, it's a special protection granted to some by the government that helps them evade responsibility?"

    You really are astoundingly stupid. Without limited liability and the ability to mitigate and spread risk, there wouldn't have been an industrial revolution or any of the wealth and economy we know today.

  • MNG||

    John's getting all utilitarian on us now. People need to be able to get special sheilding from responsibility from creditors and people they harm because it promotes the public good!

  • ||

    There are few things in history that have done more good and created more wealth than corporations. And further, anyone who loans to a corporation does so with the knowledge that there is liability shield for the owners. So there is nothing immoral or unlibertarian about it. Everyone knows up front the rules and chooses to play by them.

    Honestly, claiming that limited liability is wrong or a bad idea is a new level of stupid even for you MNG. I am thinking Tony and Chad would be embarassed for you right now.

  • MNG||

    "There are few things in history that have done more good and created more wealth than corporations."

    I know, I love them for that. They are fantastic wealth creation machines.

    But they shouldn't dabble in the polity.

    "Honestly, claiming that limited liability is wrong or a bad idea is a new level of stupid even for you MNG. I am thinking Tony and Chad would be embarassed for you right now."

    Don't look now but several other commenters in this very sub-thread have voiced concerns about it too...

  • ||

    Maybe the problem is that the "polity" has become too large and has inserted itself into too many areas of life. If the government didn't have such outsized influence, there would be no point in corporations playing dirty to curry the government's favor.

  • ||

    And this whole line of horshit about the "states create them" is just that, horseshit. The states regulate them. If the state got out of the way, corporations would still exist. They are creatures of contract. You don't need special laws and regulations for that. You just need a court that will enforce a contract as written. The first corporations were formed by private parties.

    Later, the state made them creatures of state law by making it so you couldn't form them without the state's permission. And this then 200 years afterwards allows state worshiping ignoramouses like you to claim they are a creation of state law. They are not.

  • MNG||

    The limitied liability is bestowed by the state, not by contract.

  • ||

    IT is only "bestowed by the state" because the state chooses to bestow it. Corporations were created by contract. There were corporations before the government decided to recognize them. They just wrote their contracts in such a way as to create the corporate vail. There is nothing special about a coporation. There is no privilege that has to be given by the state. The state has made it a "privlege" by regulating the hell out of them and collecting revenue. The seminal corporate law case in America was Trustees of Dartmouth v. Woodward, which was a contract law case.

  • Zeb||

    MNG, You may be right about what is ultimately desirable. But that doesn't change what the first amendment says. "Congress shall make no law".

  • Ray Pew||

    The idea is 1. take the advantages I mention and 2. wed them to the myopic goal of maximizing profit and you get something you don't want having a big part in your polity.

    You can't make this argument, since there are any number of goals that individuals and groups act upon. Why is this goal the only one that should require restriction?

  • ||

    Profits are icky, Ray Pew.

  • MNG||

    I don't know what to tell you, a lot of people think that a single minded focus on profit is pathological and hardly good for the society.

  • ||

    Seriously, do you think any company is run with only profits in mind? The people running a company are, after all, people, not robots. While their duty is to maximize shareholder wealth, the plain fact is that they do all sorts of things contrary to that duty. For instance, they don't engage in slave labor.

    There's also the small point that businesses have to deal with public opinion, even more than politicians do. Become truly unpopular, and you won't be around for long.

  • Ray Pew||

    I don't know what to tell you, a lot of people think that a single minded focus on profit is pathological and hardly good for the society.

    Completely absurd, MNG. There are numbers of immoral goals that individuals and groups can fixate on, yet you go for one that is not inherently immoral and demand that it must be restricted. Your argument crumbles under any reasoned thinking.

  • ||

    I could by the 1st Amendment form a goup like the KKK whose sole purpose is to oppress black people. And under MNG's view I would recieve protection and have the ability to give to candidates and so forth. But if I form a group to make money, my group has no rights.

  • ||

    it's a special protection granted to some by the government that helps them evade responsibility? Given that it's a wonder more libertarians don't hate it.

    Well, really for the most part it limits liability for debts owed by the corporation when it fails.

    What if limited liability were limited only to bonds and other debts? How about exempting criminal or civil damages ? So if a corporation fails because it's financially unsound, it's creditors take the hit, but if it fails because it engages in some unlawful act and gets fined or sued, then the shareholders become liable.

    How would you feel about that?

  • Zeb||

    A corporation's liability is not limited anymore than an individuals is. An individual can pay no more than he has and the same goes for a corporation. The limitation of liability is for shareholders, not the corporation itself. So shareholders can't have their personal assets siezed to pay a claim on the corporation, but the corporation is still liable for any damages. If they can't pay, they go bankrupt, just like an individual.

  • MNG||

    Limited liability doesn't protect the corporation, it protects the individual investors.

    Ever heard of the "corporate sheild?"

  • ||

    Yes, I have. The "corporate shield" is just another word for limited liability, and means that shareholders are shielded by the corporation from full joint and several liability for the corporations obligations.

  • Barely Suppressed Rage||

    Another example of completely misunderstanding what "limited liability" means, with respect to corporations.

    First, a corporation is not the same as an LLC, which stands for limited liability company (not corporation).

    The primary distinction is how the entity is treated for income tax purposes.

    The corporation's liability is not "limited." The owners of and investors in the entity are the ones whose liability is potentially limited.

    If you own stock in Shell Oil, do you want to be held liable for anything Shell Oil might do?

    It is not the corporate entity that has "limited liability." A corporation or LLC absolutely is held liable for its own negligence and violations of law. But if a corporation acts negligently, the injured party can sue the corporation. Whether the person can also sue the owner or officers of the corporation depends on various factors and can get complicated.

    But don't oversimplify and complain that a corporation is somehow given magical "limited liablity" powers by the legislature - because it's not.

  • MNG||

    Wait, doesn't that cut both ways? I mean, shouldn't you remark about libertarians recognizing the rights of collectivities?

  • ||

    The rights of individuals in groups you mean? When have we said otherwise?

  • MNG||

    I've seen people, Old Mexican comes to mind, often criticize anyone who talks about the right of a group to do anything, they often say "there are no groups, only individuals" and other such retarded things.

  • KPres||

    You're the retarded one, MNG. Once you've accounted for the rights of the individuals within a group, there's no need to talk about the so-called rights of the group.

  • MNG||

    "Once you've accounted for the rights of the individuals within a group, there's no need to talk about the so-called rights of the group."

    Indeed, so since every member of a corporation is not bound by this law you're OK with it.

  • KPres||

    What law are talking about? The Citizens United ruling?

  • Barely Suppressed Rage||

    MNG, you seem to be suffering from the delusion that individuals can get away with murder, as long as they do so via a corporate entity.

    There are plenty of corprate officers who have personally been criminally prosecuted for the role they played in the corporation's violation of laws, including securities laws and environmental safety and health laws.

    It looks to me like you need to educate yourself a little better regarding what "limited liability" actually means. Individuals cannot act with criminal negligence or wanton recklessness and certainly not with specific intent, and then just hold up the corporation as a shield and walk away scot-free.

    And the corporation is indeed potentially liable for its actions. But of course, a corporation can act only through the individual officers and directors.

  • ||

    That's talking about "classes" like blacks or gays or women, which individuals do not choose to join and are not predicated on collective pursuits. Here we're talking about organizations, not classes.

    There is also the aversion to giving a group rights that its individual members do not have; really, I'm not sure which one you're being confused by.

  • ||

    Uhh...what?

  • cynical||

    Watched too much Captain Planet as kids, fucked their poor heads up.

  • WTF||

    korporashuns are not peepul!!!11!!

  • ||

    The funny thing is, the 1A doesn't refer to persons or citizens or anything that you could hang a distinction between individuals and corporations on.

    It simply says "Congress shall pass no law". I don't see any basis whatsoever for saying it protects only the rights of individuals.

  • WTF||

    I'm sure one of our resident lefty trolls can supply a rationalization.

  • WTF||

    And, here we go!

  • ||

    It also says "the Freedom of Speech". The use of the article "the" means that it is something disctinct and pre-existing. Namely, the freedom of speech as it existed then in the colonies and the common law, not some living Constitution creation.

  • MNG||

    "the freedom of speech as it existed then in the colonies and the common law"

    Pray tell, what was the "freedom of speech" in the colonies and common law?

  • MNG||

    I want to know what this freedom of speech as it existed in the colonies and the common law was, or did you just make this shit up too?

  • MNG||

    Cuz this is all that comes to mind:

    In England, meanwhile, thinking about free speech issues was strongly influenced by William Blackstone who, in his Commentaries on the Laws of England (1769), wrote of the liberty of press as consisting "in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published."

  • Barely Suppressed Rage||

    Yes, and that still remains true today. You can still be held liable if you publish defamatory statements about someone. And you can be prosecuted for publishing child pornography or state secrets. And if you print a note to the contract killer, directing him where and when to meet the person you want him to kill, you can't claim freedom of speech or press for that.

    So there is nothing controversial in Blackstone's statement there.

  • ||

    Freedom of speech was always broader in the colonies than it was in England. It started with the modification of libal law in the famous Zinger case and went from there. And there were no laws in either England or the US than I am aware of that made a distinction between corporations and individuals or restricted corporations' ability to speak.

    Now, if you have something add beyond juvinile insults, feel free.

  • MNG||

    John, the colonies were not havens of free speech, this is partly why the Founders pushed for the 1st, just as they pushed for the 4th because of the search and seizure policies of the colonial governments.

  • ||

    I guess that whole Zinger case is just a lie they tell our school children. And I suppose also that the objection to the Bill of Rights, namely that it listed things tha already existed and was thus unncessary, was just a myth too.

    "1st, just as they pushed for the 4th because of the search and seizure policies of the colonial governments"

    they were so concerned about that that they didn't apply the bill of rights to the state governments just the federal government you fucking moron. The Bill of Rights wasn't written to restrict state governments.

  • MNG||

    John
    Zinger was prosecuted and the jury refused to convict him. It may have been a victory for speech but it was a case of jury nullification. Free speech itself was not protected in the colonies and common law beyond the Blackstone I mention above. If you have some proof otherwise, provide.

    "The Bill of Rights wasn't written to restrict state governments."

    Er, you are aware state's have, and had their own constitutions, right John?

  • ||

    Zinger set the precedent and changed libel law in the US making truth a defense, which it wasn't in Britian.

    And you are aware that he 1st Amendment wasn't intended to apply to the States? Right? I know history is not your stong point, but you do know that? SO that means your nonsens about it being created because the "colonial governments" which became the states didn't protect free speech is nonsense. You do know that right?

  • MNG||

    John
    The states had their own constitutions, did you miss that part of my previous post?

    And you are aware that states had quite broad sedition laws on the books and enforced even under these state consitutions before the SCOTUS incorporated the 1st in gitlow?

  • ||

    The sound you hear is my point wooshing over your head. Some states protected speech some did not. The point is that the founders, in restricting the federal government, had an idea of what "the freedom of speech" was. And the feds had none of those restictive powers. Shall not abridge. The fact that the states could is irrelevent.

  • Barely Suppressed Rage||

    Er, you are aware state's have, and had their own constitutions, right John?

    Yeah, and some of them had official state religions as well. Of course, Virginia led the pack with Jefferson's statute for religious freedom. But I dunno if all the states had anything analogous to the First Amendment.

    Again, you don't seem to fully grasp the division of sovereignty between the federal government and the states, and the notion that all power derives from the people, and the people of the several states granted the federal government only those specific and limited powers set forth in the Constitution. They retained all other powers at the state level. So the states are not limited as the federal government was - at least not upon initial ratification. That was changed by the 14th Amendment, which pretty clearly was meant to impose at least the same types of restrictions upon the states as the BoR imposed upon the federal government. But the states still retain the general police power, which the federal government never has been given - although it has increasingly taken it for itself.

  • ||

    Too bad the eighth circuit decision will reach the scotus first. With Kagan likely having to recuse herself, it's still up to Kennedy to vote to overturn the decision. Had Cacheris's ruling gotten there first we wouldn't need Kennedy to affirm.

  • ||

    How in the world can you hope to enforce contribution limits if people can contribute through corporations they own stock in?

    Call me a horrid statist, but I don't really buy the idea that political contributions are speech acts. In the case of Citizens United, I support that decision because money is necessary for effective speech, so spending money on one's own speech can't be restricted...but that rationale doesn't apply to direct contributions to candidates' own campaigns.

  • ||

    ...and by "one's own speech" I include speech produced by a group to which one belongs, eg a corporation.

  • ||

    You're a horrid statist. You asked me to do it!

  • cynical||

    Or, for example, the group of a political candidate and his supporters.

    Oh, wait, I guess that one's out by your logic.

    If you don't protect the resources necessary to speak, the government has a lot of leeway in silencing its opponents. Given enough discretion and indirection that you can't directly prove speech was its motivation, it could punish venues for hosting the wrong speakers, go after audience members who paid for tickets, prohibit sound crews from providing services, and so on.

    Anyone who pays attention to left wing politics knows that they are desperate to find a way to silence their enemies (maybe the right is as bad, but I haven't heard as much about it). "Net Neutrality", "Ownership rules", "fairness doctrine" are all just codewords for reducing the ability of the right to speak and giving state support to left-wing voices. CFR is a little bit more center-establishmentarian, but it's just as illiberal in its true intent.

  • Brett L||

    How many people own a significant enough plurality/majority in enough corporations to make this matter? If you're setting up dummy corps to do just this, you probably are also a bundler or some other form of restriction dodger.

  • ||

    Well, some businesses are more equal than others. For instance, if one owns a paper, it's immune. Why?

    Money is the multiplier for most speech if you want to reach farther than your voice will go. Without being able to spend money to deliver your message, I'm not sure how valuable speech rights are on any large scale.

    There are myriad other arguments, but this one is pretty compelling in my book.

  • MNG||

    " For instance, if one owns a paper, it's immune."

    Again, because it is explicitly covered in the Amendment.

  • Brett L||

    So if I incorporate a business that owns a printing press I can spend whatever I want on political speech? What are the other rules? Does it have to work? Do I have to use it as my primary method of disseminating my political speech? What if what comes off the presses is secondary but much like my website's content? What if I outsource that content to campaign staff of persons I agree with?

  • ||

    You're missing a very major point. What constitutes "press"? Do you want the government to start distinguishing between what gets press rights and what doesn't? Do you see how dangerous that would be and why we've avoided that up till now?

  • MNG||

    All good points, but this can be said about most rights in the BoR. What constitutes a search? An unreasonable one? Papers and effects? Etc.,

  • Zeb||

    Hate to be a broken record, but: Press is the medium, not the institution.

  • ||

    I take this position, too, but it's not really plainly stated in the jurisprudence (I'm working from memory, but I believe that's correct).

    This actually came up when I was a WH fellow advocating the overt recognition that some guy commenting on a bulletin board (this is back in the 90s) is as much the press as the Columbus Dispatch. No one wanted to extend limited liability for speech like that, surprisingly, viewing organizations as superior to individuals. And this was during a Democratic administration.

  • cynical||

    You say that like a Democratic administration would be opposed to an interpretation of the First Amendment that took away media rights from the ordinary citizen while allowing a highly sympathetic industry to retain them.

  • ||

    So freedom of speech doesn't include corporate speakers by default, but freedom of the press includes corporate press by default?

  • ||

    How is supporting a politician any different than supporting an artist? Suppose I am rich and find a struggling painter who I think has talent. So I give him money as a patron and promote his art. I could clearly do that under the 1st Amendment right? Well, if I can do that, why can't I find a smart politician I like and be his parton and promote his ideas and try to get him elected to something? What is the difference between the two situations?

  • MNG||

    Today I went to the store and gave some speech to the cashier for a gallon of milk. She gave me a little less speech back and I got the milk.

  • ||

  • ||

    And on that same thread, this comment from RC Dean:

    joe, do you think the 1A right to free speech protects anything other than the right to speak to people within range of your unamplified voice?

    Do you think that it is possible to effectively distribute a message using nothing more than your unamplified voice?

    Do you think the ability to expend resources on the distribution of a message is a necessary condition to distributing that message beyond the range of your unamplified voice?

    Everything old is new again.

  • ||

    sage, you're getting too close to the secret now. You must be eliminated.

  • MNG||

    Look, it's not that I don't see the conundrum one is in when you deny the connection between speech and money, it's just that I also hate to see people act like there is no strangeness or conundrums with the idea that speech=money.

    In all likelihood the Founders just did not see this coming at all.

  • ||

    No, because they never imagined that the government would regulate speech or the press. Because it was forbidden in that Constitution thingee.

  • MNG||

    That seems strange seeing as how many of the people in the same Congress that passed it voted for the Alien and Sedition Acts a few years later.

    What I meant was that in their day corporations under the ultra vires doctrine would not have dabbled into politics much if at all.

  • ||

    And those acts were an abomoniation and got Adams run out of office. And were repealed. The Democrats locked up the Japanese. Does that mean that all of them or even most of them think locking up unfavored ethnic groups is a good idea? Or is it that they did something stupid that was against what they knew to be right?

  • ||

    And were declared unconstitutional.

  • MNG||

    I don't think they ever were declared unconstitutional were they? jefferson just stopped enforcing them when he came into office.

  • ||

    By the president, actually. This happened before judicial review.

  • MNG||

    If you want to know what the Founders thought about Free Speech it is not strange to look at acts that were done by them within years of the passage of the BOR...Your internment example is inapt as the Congress, Prez and Court were not the ones who passed the 14th Amemdment and 5th Amendments.

  • MNG||

    Look, at the time of the Founding the ultra vires doctrine was pretty strict, corporations were formed and bound to very narrow purposes and powers. Getting people elected as one of these was likely unheard of, and this is probably why no mention of them in the First.

  • Zeb||

    It's not speech, it's press. And the press always requires money to operate.

  • Fluffy||

    How about assembly?

    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 in any situation where you weren't sure that money was speech, or the press, it would probably be assembly.

    If I meet the Koch brothers today and they hand me their filthy lucre and instruct me to use it to get Congress to let them poison all clean air and water, that pretty much is unambiguously an act of assembling to petition the government.

  • ||

    Sorry, corporations have no speech or assembly rights. In fact, they need to stop advertising their evil products, too. Speech!

  • MNG||

    Wouldn't outright bribery fall under that too?

    You can speak, you can canvass, you can assemble for protests and rallies, all that is certainly covered. Money to publish the first, pay for the second, and organize the third, I'm just not sure about that. As for the press, it has explicit protection...

    One cool thing about doubting that is that under your reading people with more money have much more speech, while under mine everyone about the same.

  • Ray Pew||

    One cool thing about doubting that is that under your reading people with more money have much more speech, while under mine everyone about the same.

    Why is this a desirable end? The concept of liberty is the unrestricted potential to act, not the controlled equilization of action.

  • Joedoe||

    The thing is that just isn't true. Under your reading, speech is even more concentrated in the hands of (rich)media personalities, celebrities, and officially recognized news corporations.

  • MJ||

    "... it's just that I also hate to see people act like there is no strangeness or conundrums with the idea that speech=money."

    That's because there is not any strangeness. What's bizarre is the notion that a person can be prevented from using his resources to promote his speech but you can still believe that his right to free speech is still intact. Money is a resource, as a computer with a printer and its accessories is a resource, paper and ink are resources and if you prevent a man from using any one of these, you have limited his ability to speak. There is nothing magical about money, it's only special property is that it is fungible, and can be converted into all the other resources used to promote speech. What's strange is that you seem to give money some dark magical properties that make it different from any other resource. It's not our fault you have these bizarre phobias and superstitions about money.

    I think the Founder's did see part of your argument, which is "press" is included in the amendment as it blocked any sophistry that the instrumentlaity of the press was not "speech" and therefore unprotected. They just underestimated the mendacity of future enemies of liberty, the progressives.

  • ||

    When we're talking about third-party uncoordinated speech, that's fine and dandy. You need money to "speak" effectively these days.

    But when we're talking about handing off money to a politician for him or her to decide what to do with it, it's hard to justify that under "freedom of speech" unless you explicitly think that money is speech (rather than money being necessary for speech) in some sense.

  • cynical||

    True, they totally didn't foresee that if government could control the means by which people could effectively get a message out, it could quiet unsanctioned speech to a whisper and amplify favored speakers at the same time.

    That's why they totally forgot to protect freedom of the only form of mass media that existed at the time.

  • Fluffy||

    Because the distinction is dumb and would require tyrannical action to enforce.

    If I can spend whatever I want on my own speech or can form a corporation that can spend whatever it wants on speech, it is pointless and absurd to limit contributions.

    Because to DO that, you have to start regulating "coordination" and the like, which would mean that I am only free to speak in support of Ron Paul and to spend my money in support of Ron Paul (for example) if I don't call Ron Paul before hand and let him know that I am doing so.

    It's just ridiculous.

  • ||

    The problem is that contributions can be used for whatever the candidate wants, not merely speech. They can be used to pay travel expenses, office expenses, or even to fund non-campaign organizations. In the case of Ron Paul, the lion's share of the collected money was not spent on the campaign but on his cult of personality organization in the CfL.

    Also of course he passed off a significant amount of campaign donations to his family by so-called employing them. The potential for bribe laundering is too great to allow that, and I frankly don't see how it violates freedom of speech to do so.

  • ||

    Another quandary for the "corporashuns are teh evul1" crowd:

    Every bit of "corporate" speech is actually individual speech. That corporate press release: written by an individual. That corporate radio spot: written, and performed, by an individual.

    How can we prohibit "corporate" speech without prohbiting individual speech, when corporations speak only through individuals?

  • ||

    Just ban any collective speech at all. Beginning with government speech. Which, come to think of it, is far worse than corporate donations. Sitting politicians use public funds to campaign all of the time.

  • ||

    How are the editorial pages of the New York Times anything but the collective voice of the stockholders in the corporations who own them?

  • The Koch Bros.||

    As an individual, you're "free" to buy all the airtime you like! Too bad I have millions, and you don't. Everyone has the right to free speech, but some people have more free speech than others!

  • The Media/The Unions/Etc.||

    Yeah, some of us have more free speech than others!

  • The Koch Bros.||

    You dumb motherfuckers keep babbling about "liberty" meanwhile, I'll rake in the dough. More fracking. More toxic waste, more financial scams, more unemployment, more outsourcing. He who has the gold makes the rules, fuckers!

  • ||

    Dumb troll is dumb.

  • ||

    I'm disappointed that there was no mention of Bush.

  • SFC B||

    BUUUUUUUUUUUUUUUUUUUUUUUUUUUUUSHHHHHHHHHHHHHHHHHHHHHHHHHHHH!!!!!!!!!!!!!

  • Syndicalist||

    The irony of it all is that the Kochtopus was initially a boogeyman for the Paulbots.

  • MNG||

    RC, just the other day you made the case that given the ultra vires doctrine it is unlikely the Founders would have thought this applied to corporations, they were not allowed to engage in this sort of thing.

  • ||

    Well, at the time, the only corporations were individually created by special laws, and only by the States, so I don't think the Founders really thought about it at all.

    The notion that corporations shouldn't spend their extra cash on charity or politics really arose somewhat later, under state law, after "free incorporation" arose.

    But, once you decide that corporations giving their cash away to charities is a nice thing and should be allowed, you pretty much have to let them spend it on politics, too.

  • ||

    Threads like this make me realize that the entire libertarian movement is based almost entirely on semantics...if the boot crushing your skull is labeled "government" that's bad, but if the boot crushing your skull is labled "business" that's freedom!

  • MNG||

    But you willingly put your head under the second boot, don't you see?

  • Brett L||

    Start posting those links about businesses kicking in doors and shooting dogs and/or people, and I might come around to your point of view.

  • ||

    Oh, come off it Brett. A corporation donating to a political campaign is exactly the same as a boot crushing your skull. Exactly the same.

    Whereas a union donating to a campaign is like getting your hair brushed out by angels.

  • The Koch Bros.||

    The unions donate maybe $1 million to a campaign.

    We, OTOH, set up "independent" groups funded to the tune of 100s of millions to blanket the airwaves. Everyone has free speech, but we have more free speech than others.

  • ||

    Nice use of pulling numbers out of your ass, dipshit.

  • ||

    I've worked in DC, and let me tell you, the "corporate" lobbies don't have any more influence than the other, noncommercial lobbies.

  • The Koch Bros.||

    Not until Citizens United, they didn't. But now the playing field is titled in our favor!

  • ||

    Ha, ha. If there's been any substantial change in politics, heck if I can see it. Before the law, after the law, after the SCOTUS case. Pretty much all the same.

  • cynical||

    You mean the Supreme Court that overturned restrictions on both corporations and unions? That one?

  • ||

    No, PL. They MUST! Because they are all profit-motivated and all the non-commercial lobbyists only do thing out of pure and good intentions. That's why none of them draw a salary.

  • MNG||

    It's not that they draw salaries, it's the legal duty of management to put maximization of investor wealth as the primary goal.

  • KPres||

    You're wrong. It's legal duty of management to act in their investors best interests. Which, of course, is exactly how the investors themselves would act were it not for the corporation that represents them.

  • MNG||

    It's different. For example, you may forego some profit to engage in charity work or be in public service. Corporations are not supposed to give any money to something like that unless it is to further investor profits in the long run.

    See?

  • DJ Drugs||

    No, not "see."

    The corporate form is available for myriad purposes.

    As mentioned before, Citizens United was not organized to further investors' profits.

    Profits are not always purpose.

  • Barely Suppressed Rage||

    It's different. For example, you may forego some profit to engage in charity work or be in public service. Corporations are not supposed to give any money to something like that unless it is to further investor profits in the long run.

    Cite, please. Because that's horseshit. Otherwise, why don't shareholders file derivative suits against the officers and directors whenever coprorations make large charitable donations, rather than issue dividends to investors?

  • cynical||

    No, minge, not every corporation exists to make profits, otherwise there would be no such thing as a non-profit corporation.

    Christ, could you be anymore stereotypical liberal? I swear that "corporation" is a trigger phrase that turns off your critical faculties. Would you kindly recall that Citizens United itself was a political corporation?

    Not every business is a corporation, not every corporation is a business, and not every business corporation is required to blindly and short-sightedly pursue profits (my impression is that publicly traded corporations are to some extent, but mainly due to regulations intended to protect the masses of small and institutional investors, so that makes it your fault anyway).

  • ||

    Bullshit. Have you never worked for yourself? If you have, did you never consider incorporating? I have been an S corporation before, all by my lonesome, and there wasn't any oath that the overlords of the secret corporate conspiracy required me to swear to affirm that my first and only responsibility was to make a profit, and that under pain of death I would not use any of those sacred profits for do-gooding of any stripe.

    Nope, it was just little old me and some silly notion about keeping my personal finances separate from those of the small car service/taxi company I operated. I was in business to supply a service for which their was a demand, and to provide a higher quality of service at a better price than was then being offered in the local market, and to make a living doing so; that last part was the evil profit seeking, and it was just as important to me before I incorporated as it was after. If you interpret that as a single minded focus on acquisition of wealth then everyone who holds a job is guilty of caring solely about profits.

    Yeah, I know, my concern with not losing my home or life savings should one of my drivers, operating one of my vehicles, be at fault in a property damage or personal injury accident whose cost might exceed the limit of my insurance coverage-- my concern with that possibility renders me a heartless entity whose speech could pollute our pristine political process.

    The bizarre notion on the left that "corporation" =  "billion dollar entity exploiting the people through overpriced defense contracts or through the provision of yummy deep fried goodies" can only be the product of minds unacquainted with self-employment.

  • ||

    Oops. Fuck me, there/their/they're is 3rd grade shit. I'm so embarrassed.

  • George Soros||

    100s of millions? Shit, that's small time. I spent $30 billion buying Obama the election.

    The liberals don't mind me, either.

  • The Media/The Unions/Etc.||

    HURR DURR!!11!!

  • MNG||

    No, they don't kick down doors and shoot dogs. They sell defective doors and dog food from China that kills your dog.

  • Zeb||

    And then they get horrible press about it and stop doing it. Or they keep doing it and go out of business, or get charged with a crime.

  • MNG||

    Or they just change their name or are bought by another company.

    And interesting that one of your solutions is...the government ("get charged with a crime")

  • ||

    That's a "Roads!" argument. Not very compelling. Since most around here are minarchists, not sure it gets you very far.

    Government is a profoundly dangerous thing. Most of truly horrific things done in history were done by governments. Which is why, in large part, we were founded on the proposition that government should be quite limited in scope and power.

  • Zeb||

    I have a short list of things that should be considered crimes and fraud and negligence that causes harm are on it.

  • Barely Suppressed Rage||

    They sell defective doors and dog food from China that kills your dog.

    Oh man, if only there were plaintiff's attorneys who could file class actions suits to hold those corporations accountable! Man, we should get those.

  • ||

    It is amazing how you folks can't put two and two together...you want corporations to be allowed to influence government as much as they can with their economic power and then you complain when that power is used in ways that furthers their interests and not yours'...

  • ||

    you want corporations to be allowed to influence government as much as they can with their economic power

    AAAAAND...CUT! Thanks for trying out. We may have a role for you as a backup troll. Maybe a troll fluffer. But you'll never make it as a real troll.

  • cynical||

    Most corporations don't appear to be interested in influencing the government's approach to preventing murder, assault, or theft, so I think we'll be fine in minarchitopia.

  • MNG||

    "kicking in doors and shooting dogs and/or people"

    Here's what I find so lame about this. Of course it is the government that does this type of thing since governments are the thingee that we grant a near monopoly on the use of force in society. So most forcible evil deeds are done by it or by lawless gangs and individuals.

    The government is a tool. It's like saying "the Holocaust and Stalinist purges were enforced by people with guns, therefore guns are bad."

  • Jeffrey||

    ".... Since governments are the thing that MNG GRANTS a near monopoly on the use of force"

    FTFY motherfucker

  • cynical||

    Modern government is the most powerful weapon ever devised -- it puts nukes to shame (and most nukes and lesser military-grade armaments are just subcomponents of government anyway).

    Right to bear arms or no, we don't let people have nukes; so why should we let them have government?

  • Syndicalist||

    Well, Blackwater/XE has done a lot kicking in doors and shooting people. Not that Obamessiah has reigned them in, of course.

  • Syndicalist||

    "lot of", I mean.

  • Bill||

    My head still hurts from the last time someone's free speech crushed my skull.

    Moron.

  • ||

    100 million people were murdered by governments last century. This is the figure for genocides and crackdowns, the wars probably bump up on another 100 million.

    Yet you're worried about corporations?

    Tell you what. If you can give me a documented source showing that private businesses killed even 1% of the 200 million people killed by governments last year, then I will vote for Obama next year, and any other Democrat on the ticket.

  • ||

    Should be last century, not last year.

  • The British East India Company||

    We probably killed more people than Mao.

  • ||

    Horseshit. Mao killed 40 million people. The EIC would have had to kill every man, woman, and child in 18th century India to kill that many. Not to mention they wouldn't have had anyone to trade with, which was kind of the whole fucking point of having the company in the first place.

  • MNG||

    "100 million people were murdered by governments last century."

    And most of them were killed by government agents using guns. Why not skip the middleman and hate guns?

  • Shorter MNG||

    "Please forget I said that you shouldn't blame tools just a few minutes ago."

  • Faux MNG||

    Because those damn guns just jump up and kill people on their own! It has nothing to do with the government agents holding them! Blame the inaanimate object! Herp!

  • MNG||

    Nice try, but I think it is as stupid to blame the guns as it is governments, both are tools that have been used to do good things and horrendous things. Thinking either is inherently bad is stupid.

    I mean, you note guns are inanimate objects apart from the people who weild them. Apart from the people that make them up governments are even less, ideals and agreements and such.

  • Ray Pew||

    Nice try, but I think it is as stupid to blame the guns as it is governments, both are tools that have been used to do good things and horrendous things. Thinking either is inherently bad is stupid.

    But corporations are inherently bad because of their profit motive and therefore must be restricted from speech, right?

  • ||

    Incidentally, what the hell difference does motive make in whether speech is protected or not? It can matter if we're talking about criminal exceptions to speech protection (like perjury, for instance), but I wasn't aware that we viewed the profit motive as criminal in the U.S.

  • Barely Suppressed Rage||

    Because people can and do use the tool of government to do those things, but clearly they cannot use the tool of the corporate form to do them - at least not without serious repercussion.

    Last I checked, government held the monopoly on the doctrine of "sovereign immunity".

  • cynical||

    Because many, if not most, of them were not killed using guns? The victims of famine and economic catastrophe were primarily killed by technocratic hubris, so why not hate that instead? Oh wait, I do.

  • cynical||

    Because then we'd also have to hate conventional bombs, nukes, chemical weapons, biological weapons, energy weapons, bayonets, crossbows, pikes, giant ovens, deliberate starvation, accidental starvation, rope, guillotines, trained attack animals...

    Well, it just seems like a lot less effort to hate government, especially since "gun control" movements typically exclude government anyway.

  • Zeb||

    Which businesses are (metaphorically) crushing your skull? People say shit like this all the time, but I don't see it. Which businesses are imposing anything on you against your will?

  • ||

    They have sapped his vital essences.

  • ||

    He should have denied them his vital essences.

  • Ray Pew||

    Threads like this make me realize that the entire libertarian movement is based almost entirely on semantics...if the boot crushing your skull is labeled "government" that's bad, but if the boot crushing your skull is labled "business" that's freedom!

    Yet you never analyze your own semantics and define how these corporations are "crushing your skull".

  • ||

    Damn, I hate to spell it out for you but the point is that they are increasingly becoming one and the same.

  • Ray Pew||

    Damn, I hate to spell it out for you but the point is that they are increasingly becoming one and the same.

    For your argument to work then they must be merging to become government, since corporations don't have the power of law. So any crushing they could do would be a derivative of their collusion with government.

  • Syndicalist||

    So I suppose you're also going to stop supporting the pro-capitalist, pro-globalization, pro-bailout, pro-war charter-school-loving, NAFTA-and-WTO-loving Democratic Party, right? Oh, wait, I forgot, it's different when your side crushes skulls, isn't it?

  • Benito Mussolini||

    Fascism should more properly be called corporatism, since it is the merger of state and corporate power.

  • ||

    You should do a little research on what corporatism meant in Fascism. It didn't have anything to do with what most leftists today think it meant. Corporatism was about dividing society up into major interest groups and had nothing to do with "corporations" in the commercial sense. In some ways, unions are a type of corporatism.

  • ||

    I got schooled on the term corporatism just last week. I will from now on refer to corporate cronyism as rent seeking.

  • ||

    I call it govercorping.

  • DJ Drugs||

    Do unions take advantage of the corporate form?

    10 seconds on google didn't learn me one way or the other.

  • Benito Mussolini||

    All within the state, nothing outside the state, nothing against the state.

  • Benito Mussolini||

    The keystone of the Fascist doctrine is its conception of the State, of its essence, its functions, and its aims. For Fascism the State is absolute, individuals and groups relative.

  • Benito Mussolini||

    We deny your internationalism, because it is a luxury which only the upper classes can afford; the working people are hopelessly bound to their native shores.

  • Benito Mussolini||

    It is the State which educates its citizens in civic virtue, gives them a consciousness of their mission and welds them into unity.

  • Benito Mussolini||

    "Religion is a species of mental disease. It has always had a pathological reaction on mankind"

    "Science is now in the process of destroying religious dogma. The dogma of the divine creation is recognized as absurd."

  • Benito Mussolini||

    If the 19th [century] was the century of the individual (liberalism means individualism), you may consider that this is the "collective" century, and therefore the century of the state.

  • Benito Mussolini||

    Fortunately the Italian people has not yet accustomed itself to eat many times a day, and possessing a modest level of living, it feels deficiency and suffering less.

  • Benito Mussolini||

    At every hour of every day, I can tell you on which page of which book each school child in Italy is studying.

  • The Koch Bros.||

    We couldn't have said it better, Benito! Need any campaign contributions?

  • ||

    Forget about GM, dipshit?

  • Fluffy||

    Sorry, troll.

    It just doesn't matter.

    To limit the Koch Brothers' speech, you have to have a point at which somebody somewhere decides that the Koch Brothers have spoken "enough" for this year and John McCain jumps out of the bushes to stop them from adding one more marginal act of speech.

    And if the Senator does that he's a tyrant. Sorry.

  • ||

    You a missing the point again fluffy. To a liberal, McCain isn't a tyrant provided he just oppresses the right people.

  • ||

    How do you think he got that ridiculous "maverick" label?

  • Syndicalist||

    How much you want to bet the troll posting as the Koch brothers owns an iPad that was assembled by virtual slaves? But, hey, Steve Jobs is a Buddhist and a Democrat, so he doesn't count as a robber baron, I guess.

    You know, it's funny, despite my own views, I find myself sticking up for libertarians when I take a look at the recent liberal anti-libertarian sentiment from the sidelines. I guess it's because of how dishonest and hypocritical most of them are about it. They wring their hands over those evil teacher-hating Koches and Teabagging governors, but then they support charter schools after watching Waiting for Superman.

  • ||

    For most people politics are about fashion and emotion, not facts and reason.

  • ||

    See also: Mother Jones slamming Paul for his drug legalization viewpoints.

  • ||

    When people come together to form a corporation, they become an unstoppable killing machine.

    A documentary told me, so it must be 100% true and the source cannot ever be questioned.

  • ||

    That is the whole reason people formed corporations. It was too expensive for each individual to get on ships to sail off to kill brown people. So they formed corporations that pooled their resources to do it.

  • ||

    That is the whole reason people formed corporations. It was too expensive for each individual to get on ships to sail off to kill brown people. So they formed corporations that pooled their resources to do it.

  • Fluffy||

    I thought they started building ships because that allowed them to have an excuse to kill trees and destroy wilderness, and it was only once they had the ships built that they looked around and said, "Oops, we need a use for these," and naturally someone said, "Let's use them to kill brown people and whales!"

  • ||

    QUESTIONS OF THE DAY – Q : Jahner / A : Savinien
    KYLE JAHNER SAYS : Did the U. S . create the policies that result in
    backwards economies lacking in opportunity and dominated by cronyism,
    for example ?
    TRIATHLON REPLYS : The American - Israeli Military Industrial Complex - the
    [EMPIRE ] does in fact support the development and maintaining of
    backwards economies dominated by dictators and despots , who exploit
    there own populations , thru what ever means even cronyism, as long the
    [EMPIRE 's ] self interests are achieved , and that is control of the worlds
    most value resources be it oil , nickel , rare - earth, gold , and the list goes on .
    KYLE JAHNER SAYS : Did the U. S . ask Gaddafi to start mowing down his
    own people ?
    TRIATHLON REPLYS : The [ EMPIRE] and its mouth pieces are now putting
    out the idea of selective determination of which guys are bad guys, and
    where to intervene , Gaddafi on the scale of being a mass murder is a
    small fish as compared to the Great Whites , feeding at leisure left out
    there, and then there is the question of mowing down his own people
    [TRIBE ] the third largest in the country , or fighting rebels backed by the
    [EMPIRE ] who had been in country months before starting a revolution
    centered around the rich oil section of the country . This is about OIL .
    KYLE JAHNER SAYS : After all , how fair is it to blame Libya ' s problems and
    struggles on the man running the country and ordering teenage African
    boys to attack his own people ?
    TRIATHLON REPLYS : It is one thing to order a person to do something
    and another to get compliance, these boys of Africa are now men of
    Africa, given arms to defend their own lands , their own future , it is their
    decision to fight or not fight , and who was supporting the dictator in
    power for how many years this has all been [ EMPIRE] Western Hypocrisy .
    KYLE JAHNER SAYS : Care to actually address some actual solutions to the
    problems the region faces ?
    TRIATHLON REPYS : You list the one's you want to have addressed and we
    will reply , but now would you care to actually address the problems that
    have been created by [ R 2 P ] Right to Plunder the Worlds Resources in the
    name of Protecting the People , the selected certain groups of people or is
    it those who have resources the [ EMPIRE ] wants to plunder . Do you think
    Al Qaeda will not respond against France the most logical and aggressive
    of the west plunders , or that those wanting to protect themselves from
    the west will not develop nuclear weapons and delivery systems to
    protect their resources and sovereignty , the Pandora's Box is Open now
    how do you shut it ?
    KYLE JAHNER SAYS : Or would you just like to continue blaming America
    and Israel for all of the Arab world 's problems , like an Arab dictator
    would?
    TRIATHLON SAYS : And, a One World Government of the [ EMPIRE] is
    more in line with peace on earth good will to men, as they plunder the
    worlds resources and allow the open air concentration camp of Gaza, and
    selective good Arab dictators as was the case in Libya , and is in Saudi
    Arabia and Bahrain , dictators who allow the [EMPIRE ] to plunder there
    resources of their country?
    KYLE JAHNER SAYS : As I said , there is no right answer from the west . We
    do nothing to protect Arabs in Palestine, we get criticized . We intervene to
    stop the deaths of Arabs in Libya , and we get criticized . At least pick one
    so we can adjust.
    TRIATHLON REPLYS : There is always a better answer , no answers are
    perfect, but military answers are the very last option , your answer is that
    it is the fault of the [ EMPIRE] , its answer is always the Pentagon Saber , and
    not the Peace Process of Diplomacy, and it never will be its about the
    plundering of the recourses of the World, and its [ SPECIAL RELATIONSHIP ]
    with the most hated Apartide Government in the World Israel, some say
    Fox News claim of Fair and Balances is Hypocritical , the same applies to
    the [ EMPIRE] in whole .
    HERCULE TRIATHLON SAVINIEN

  • ||

    So, are you in the money can equal speech camp, or do you think limited liability entities shouldn't have speech rights?

  • ||

    [TRIATHLON REPLYS] Down with the Koch Brothers [KOCHTOPUS] and the American-Israeli Military Industrial Complex [EMPIRE]! HERCULE TRIATHLON SAVINIEN

  • Hugh Akston||

    He's in the concentration camp camp. I don't know where that places his views on corporate speech.

  • ||

    No, I interpret his response as being anti-corporate speech. The Kochs are a proxy for all limited liability entities. Well, the disfavored ones, anyway.

  • Fluffy||

    "Er, it's a special protection granted to some by the government that helps them evade responsibility?"

    That is the modern understanding of it, but it's not really how it came to be historically, as I noted above.

    It came to be historically because the trade revolution of the 14th century created opportunities that required the large-scale (for the time) mobilization of capital for enterprises with a high degree of risk.

    It was very unclear, given the rudimentary legal and financial equipment available at the time, what sort of financial relationships could give rise to joint and several liability. Does lending money to an operation make you liable for its activities? Today, we say no - and not even the "Get rid of limited liability!" set out there right now is agitating for the re-extension of liability to lenders. But at one time lending money to an enterprise could do just that.

    Over time, financiers experimented with different ways of aggregating capital through investment, lending, and insurance - but at the 14th century "let's scratch this shit down on sheepskin parchment" level, those things blur into each other. So just about every enterprise became a legal hodgepodge at least partially constructed to obscure true ownership and hide some owners from joint and several liability.

    The joint-stock company came about because of a desire to take what people were already groping at doing deceptively and furtively and give it a legal basis, largely for the purposes of control.

  • ||

    Corporations existed and had these rights before governments started granting them.

  • cynical||

    How? I mean, I can see them placing them in contracts, but that can't protect you in cases arising where you do harm to a party with whom you don't have any sort of contractual dealings.

  • ||

    I'm still wondering how you can say that banning a press release from a corporation isn't a violation of the free speech rights of the individual who actually wrote the damn thing.

  • ||

    If it is a violation of a government employee's 1st Amendment rights to tell him that he can't speak Spanish on the job, (and it has been ruled as such) how is it not a violation to tell an employee of Exon he can't support a political candidate while on the job or write a press release?

  • ||

    Do you mean "can't speak Spanish" or "must speak English"?

  • ||

    It is the same thing.

  • Neu Mejican||

    I'm still wondering how you can say that banning a press release from a corporation isn't a violation of the free speech rights of the individual who actually wrote the damn thing.

    You would have to dig into intellectual property and copyright to figure that one out. I think there is a pretty strong case for that being work for hire. No copyright by the individual who wrote it. It is entirely owned by the corporation that hired her to do the work.

    Shorter version. The corporation is considered to have agency and it is the corporation's speech, not the individual's speech.

  • ||

    Precisely. Presumably the corporate spokesperson is totally free to write whatever personal political statement they want, but no one cares what they think personally.

  • Neu Mejican||

    John|6.3.11 @ 3:23AM|#

    And I am not sure how a prohibition against CORPORATIONS running around saying it is okay to kill the infidel LAWS SHOULD BE CHANGED ACCORDING TO THE CORPORATIONS BEST INTEREST is really the biggest threat to the 1st Amendment out there. And I don't think libertarians do the 1st Amendment any favors by arguing it means that our enemies CORPORATIONS can come to the country and advocate our deaths HIGHJACK OUR POLITICAL SYSTEM...

    John|6.3.11 @ 6:27AM|#

    But the 1st Amendment doesn't protect illegal speech. And last I looked it was illegal to threaten to kill people. for corporations to give large sums to candidates. Yeah, I do want the government to ban speech that says "I want to and encourage others to kill group X". [Something John doesn't like] Do you really think that is what the 1st Amendment means?

    Yes, the 1st Amendment protects unpopular speech. No, just because speech is unpopular doesn't necessarily mean it is protected by the 1st Amendment. How do you have a Republic if it is okay for groups to threaten to kill anyone who disagrees with them?

    We have already seen the effects of this. You effectively can't publish a cartoon of Muhammad in this country. Why? Because jackwads like you think that jackwad Muslims have a 1st Amendment right to threaten anyone who disagrees with them with death.

    Again, you are not doing free expression any favors. In fact you are helping to kill free expression.


    Edited to fit with the current discussion. John's back and forth on what types of speech the 1st protects is interesting.

    I find the corporate speech issue an interesting one. The most compelling one I have heard in a while is in this thread. (http://reason.com/blog/2011/06/08/federal-judge-taken-seriously#comment_2329264).

    I think all arguments that try to equate money with speech and those that try to argue that corporations are "just collections of individuals" fall flat in the end primarily because not all corporations are created equal (unlike people).

  • ||

    So forming a corporation to make products and money and other legal activities is the same as forming a conspiracy to kill people and overthrow the government?

    I know you are trying to be cute here. But what you are saying makes no sense since one activity is not comparable to the other. The 1st Amendment does not protect my right to do things like issue threats or defraud you or commit crimes. But it does protect my right to engage in lawful activity.

    Someone made the point above that the Sierra Club is a corporation. Yet I doubt even a hardcore Democrat like you would think the Sierra Club not have a right to free speech?

    In the end, the only way to answer that is the way MNG answers it, which is to say that there is something different about making money that should deprive you of your first amendment rights. If you assemble and form a corporation for any purpose but making money, you have 1st Amendment Rights. If you do it to make money, even though all of your activities are lawful, you forfeit your First Amendment Rights. That seems completely arbitrary and wrong.

  • Neu Mejican||

    I know you are trying to be cute here. But what you are saying makes no sense since one activity is not comparable to the other.

    Not equivalent, sure, but certainly comparable. The issue is this. You feel that it is okay to restrict collective speech by passing a law against speech with a certain content (essentially - groups can't advocate violence). The campaign finance laws restricted speech based on content (groups can't advocate changes to law). But in both cases, we agree that an individual advocating violence or advocating for changes in law are protected. You argue above vociferously for the rights of groups to be considered equivalent to that of individuals, but when defending Rand Paul, you argue that the 1st doesn't protect speech once you are forming a group and materially supporting it (a nice definition of a corporation). It is inconsistent at the most basic level.

    Someone made the point above that the Sierra Club is a corporation. Yet I doubt even a hardcore Democrat like you would think the Sierra Club not have a right to free speech?

    Again, not a Democrat, but I have no problems with the Sierra Club and Exxon being placed on equal footing in the political arena. If it is the power of monied interests that are the issue, then restriction on Unions, The Sierra Club, Exxon, or Walmart should be the same. That said, I might (might) be convinced that there are meaningful distinctions between for profit and not for profit corporations that would justify different rules applying to each. Currently I am unconvinced.

    Have the conspiracy laws gone too far? Maybe. I think there is a reasonable case to say they have. But the thread the NM quotes me from was a thread about Rand Paul saying people who attended meetings are criminals. And the reality is, that under the current law they are. Maybe the law is wrong. But Paul certainly wasn't beyond the pale in what he said.

    Oh, but he was. Again, attending a meeting and handing out pamphlets is explicitly protected speech. I would even argue that the first, when combined with the second protects groups of citizens that want to violently overthrow the government. Remember...they were written by a group that was formed to violently overthrow the government.

  • Neu Mejican||

    I realize that the above comment might be construed to say that I support restrictions on campaign speech. I will reiterate that I don't think I have made up my mind one way or the other on the issue.

    I will say this, however. The idea that corporate personhood endows corporations with the same rights as individuals is nonsense. They are entities of a different order so there is nothing inherently problematic about saying corporations/collectives have to follow different rules than individuals. They do not have inalienable rights, even if the individuals that form them have a right to form them. Otherwise, there would be no basis for restricting the power of government, which is essentially just a corporation/collective formed for a purpose.

  • Ray Pew||

    I will say this, however. The idea that corporate personhood endows corporations with the same rights as individuals is nonsense. They are entities of a different order so there is nothing inherently problematic about saying corporations/collectives have to follow different rules than individuals. They do not have inalienable rights, even if the individuals that form them have a right to form them. Otherwise, there would be no basis for restricting the power of government, which is essentially just a corporation/collective formed for a purpose.

    But the romantic notion of government IS that it derives it's authority from the will of the individual members and thus is granted the authority to act. So, by the beliefs of those who support strong government, the corporation is similar in structure.

    IMO, the corporation and government are both structures that derive their authority from the will and rights of the individual members and therefore are limited by the rights of the members. Government cannot claim any rights that it's members do not share.

  • Neu Mejican||

    So, by the beliefs of those who support strong government, the corporation is similar in structure.

    We agree on this point. But the notion here is that the collective, as a collective, should be treated as an individual, with equivalent rights. I find that notion incoherent on many levels.

  • Neu Mejican||

    John|6.3.11 @ 2:13AM|#

    I think that would depends on the circumstances. I think the situation of someone just going to a speech and not doing anything else, is pretty unlikely. Suppose I start the "violent revolution club corporation". And our whole purpose is to inspire people to go out and blow shit up and destroy the government. And you come to one of our meetings knowing what it is. If you do anything to support us, give us money, help us hand out pamphlets, anything but just sit there, at that point you probably are participating in the advocating of the violent overthrow of the government.

    If I join invest in the jihad club corporation and start going to the meetings, I think I am putting myself in some legal jeopardy by being involved in what amounts to a criminal conspiracy.

    ... Sure, only listening to the speech is not and cannot be a crime. But people are very unlikely to just listen to the speech. In reality, the guys listening to the speech are almost always participating in the conspiracy. I think Paul was thinking "yeah if some guy goes and joins the club with these assholes, they should go to jail".

    Something about freedom of assembly here...and corporations being collections of people acting in concert. I really am having a hard time figuring out what John thinks the 1st protects.

  • Neu Mejican||

    To be fair to John. He was defending someone on his team when he said those things. He might not believe what he is saying. It might be the voice of his collective.

  • cynical||

    Are you suggesting that conspiracy laws violate freedom of assembly? Next you'll be telling me it's a violation of the 2nd amendment to prohibit using your arms to murder people.

    But sure, I think that if you invest in a corporation while knowing full well that it aims to overthrow the government and commit terrorist acts, I guess maybe that should be illegal.

    Hey, cool, I think we just came up with a compromise we can all be happy with: make it legal for corporations to get involved in politics and give money to campaigns or fund ads or documentaries or whatever, but not to incite or actively be involved in terrorism or violent rebellion!

  • Neu Mejican||

    Are you suggesting that conspiracy laws violate freedom of assembly?

    No. But John's not talking about conspiracy. He's talking about handing out pamphlets.

    Next you'll be telling me it's a violation of the 2nd amendment to prohibit using your arms to murder people.

    No I won't. It would be a violation to take my gun away because some guy says I should use it to kill people.

    But sure, I think that if you invest in a corporation while knowing full well that it aims to overthrow the government and commit terrorist acts, I guess maybe that should be illegal.

    What if they are trying to overthrow the government non-violently?

    [Disclaimer: I am undecided on this issue. I see reasons to worry about the power of large monied interests to unfairly influence elections. But I think the 1st is the bestest amendment of them all...so....

  • ||

    "But John's not talking about conspiracy. He's talking about handing out pamphlets."

    If you are going to argue with me, at least make an attempt to understand what I am saying. I am just talking about "handing out pamplets". If I hand out pamplets saying that it is everyone's God appointed duty to hunt down Neu Mexican and kill him and someone goes and does it, I am probably criminally liable for inciting violence. If I am present at a conspiracy and do anything at all to further that conspiracy and never report it to the cops, I am criminally liable for the acts of my other conspirators. That is just basic criminal law.

    You get all angry about it because of the periphery issues like "teh terrorists" and "teh brown people", but it is not about terrorism. It is about being part of a criminal conspiracy. Yes, merely going to meetings can get you thrown in jail if those meetings involve criminal conspiracies. There are a whole lot of people rotting in federal prison right now for just "going to meetings" because those meetings involved things like running the mafia. In a lot of ways that is all John Gotti ever did was go to meetings. It is not like he actually killed anyone, or at least anyone they proved, with his own hands.

  • MNG||

    "Suppose I start the "violent revolution club corporation". And our whole purpose is to inspire people to go out and blow shit up and destroy the government. And you come to one of our meetings knowing what it is. If you do anything to support us, give us money, help us hand out pamphlets, anything but just sit there, at that point you probably are participating in the advocating of the violent overthrow of the government."

    Have you not heard of Brandenburg v. Ohio? Even the speaker advocating government overthrow is not prosecutable unless there is immediate incitement.

  • ||

    Yes, there has to be some kind of action. Merely shooting your mouth off isn't quite enough. But forming a corporation specifically for the purpose of inspiring people to commit violence is a lot more than what happened in Brandenburg, which concerned one speech. At some point my actions rise to the level of becoming a real conspiracy. And that level is not just actually killing people. If I start raising money telling everyone that I intend to overthrow the government, I am probably going down. If I rent an office. It doesn't take a lot of action.

  • MNG||

    Are you saying that if Brandenburg had rented a hall to give his speech he would have been prosecutable? I don't think that is correct. And much more so would that apply to the listeners who came to the hall. Even if the listeners joined Brandenburg's organization on the spot, gave him money and took pamphlets and went and handed them out would you get immediate incitement.

    It's only when they take an actual step toward an illegal act (i.e., bombing, killing, specifically threatening someone, etc) that they become prosecutable.

  • ||

    "Even if the listeners joined Brandenburg's organization on the spot, gave him money and took pamphlets and went and handed them out would you get immediate incitement."

    Yes. It is called material support of terrorism and there are people, most notably that college professor down in Florida, who are in jail for as much.

    Have the conspiracy laws gone too far? Maybe. I think there is a reasonable case to say they have. But the thread the NM quotes me from was a thread about Rand Paul saying people who attended meetings are criminals. And the reality is, that under the current law they are. Maybe the law is wrong. But Paul certainly wasn't beyond the pale in what he said.

  • MNG||

    Maybe we are all correct here. I think it may depend on the specificity of the speech regarding an illegal act. If't "we're meeting and organizing to generally in the future overthrow the government" then it's safe to speak, attend, give money and help pass out leaflets. If it's "we're meeting to plan to blow up building x in furtherance of our general attempt to overthrow the government" then it is illegal and the government can step in.

    I think Paul simply misspoke in an interview, not only did he clarify himself later but his actions (re: the Patriot act for example) speak louder than any misspoken words. I've liked him since Conway ran to his right (attacking him for his drug stance and for not being a devout enough Christian), but I respect him even more now.

  • Neu Mejican||

    I think Paul simply misspoke in an interview, not only did he clarify himself later but his actions (re: the Patriot act for example) speak louder than any misspoken words. I've liked him since Conway ran to his right (attacking him for his drug stance and for not being a devout enough Christian), but I respect him even more now.

    Nah. He didn't misspeak. He believes what he said. It is okay to respect him for other actions/positions, but when he clarified his position, he ended up in the same place. Opposing PATRIOT is only common sense as it way oversteps. But that can be done while still supporting inappropriate policies.

  • MNG||

    wow, nothing seems to unite libertarians and the right in more passion than the defense of corporations and their rights!

    First, my point about the press clause is that 1. if the freedom of speech covers everyone including corporations then why the separate clause for the press (while the press was a printing press even at the Founding they used the term "the press" to refer to those people who used the press in speaking) 2. as a response to those who use the line "well the NYT inc. is protected, why not ___?"

    Second, as to limited liability I know how it works alright. The problem with it is this: if I as an investor put in x dollars and the company does great I can make much more than 100 dollars, but if it does terrible creditors or those harmed can only get x dollars from me. That's a special privige: if I had a sole proprietorship I'd be liable for whatever the debt is.

    As I repeatedly said I don't think corporations are evil, I don't even think their direction to focus on maximization of investor is bad, in fact it is a wonderful, good thing. I do think thought that it is not a good thing for a member of a polity. You don't need to read Aristotle or Plato to know that the ideal of a civic minded person does not = a person driven primarily by profit maximization.

    Corporations have been granted wider and wider powers in our history and they proved to be exceptional in making tremondous amounts of wealth. Since most people see that money=power they looked around and saw these extremely powerful entities focused primarily on their own enrichment and said "holy shit, these things are great and all but we don't want them to get too involved in the political sphere." They sensed that this power+this purpose would equal political players that did not have the entire public in mind but instead would operate as relentelss rent-seeking machines to the detriment of us all. So they offered restrictions on their political activity. Given at the time of the Founding under the ultra vires doctrine it was pretty much unthinkable to have corporations as major political players it was reasonable to assume they were not covered by the original intent of the 1st Amendment.

  • ||

    Someone pointed out above that organizations like the Sierra Club are corporations. Yet, they certainly have 1st Amendment Rights.

    If I take your reasoning to its logical conclusion, I can form an association for any purpose I want, including the most hateful purposes and still have all of my 1st Amendment Rights unless I form an association for the purpose of making money. Then, my new entity doesn't have 1st Amendment Rights even though everything it does is legal.

    By your logic,

    The Corporation to reintroduce slavery of black people good to go in elections.

    Any corporation designed to make money, stay out of the polity.

    How does that make any sense?

  • MNG||

    Actually, as the Citizens case shows, what they did with that dilemma was restrict the speech rights of all corporations, those with the fiduciary duty to maximize profits and those, like the Sierra Club or your hypotheticals, that without. No individual members of the groups were restricted as individuals.

  • ||

    But they were restricted in their ability to associate. Why is a corporation designed to make money automatically worse and unworthy of the polity but an association designed to do anything else, including self evidently awful things, automatically worthy? That doesn't make sense to me.

  • MNG||

    I dunno, they could still associate. They could have meetings, organize canvassing, assemble for rallies and meetings. People do all those things without forming corporations all the time. They just could not use the corporate form to do those things as well as buy ad time during the window.

  • MJ||

    Except pre-Citizens United all corporations did not have restricted speech rights. The argument in Citizens United that the distinctions limiting corporate speech were capricious and arbitrary and not supported by the 1st amendment.

    You postulated that a universal characteristic of corporations was to maximize profit. When shown that maximizing profit is not necessarily a characteristic of corporations, you still say that corporate soeech needs to be restricted because some have that characteristic. The rationales you are making are arbitrary and based on your phobias, not rational thought.

  • MNG||

    I don't think that is true, we've had corporate limits before, especially at the state level (see the famous Rehnquist dissent in the case about the state law prohibiting banks from participating in elections).

    "The rationales you are making are arbitrary and based on your phobias, not rational thought."

    This is like saying banning pit bulls from a locality is arbitrary and based on phobias and not rational thought.

  • cynical||

    wow, nothing seems to unite libertarians and the right in more passion than the defense of corporations and their rights! attempts by leftists to silence their political enemies by imagining exceptions to the First Amendment that mysteriously only affect people and groups that they dislike

    FTFY

    (Note: It unites libertarians and the right because they both happen to fall under "people and groups that they dislike". 'They came for Comcast and I did not speak up, because I hate hate hate hate their shitty service', sort of thing.)

  • MNG||

    I see what you did there, brilliant!

  • htjyang||

    At the time of the founding, TV did not exist nor did Madison and co. declare that particular medium to be protected by the 1st Amendment. Do you think that the government should be free to censor any speech that uses TV as a medium?

    I think one can make reasonable extrapolations of the intent of the Framers based upon their writing and actions. Just as I see no reason to assume that they ever intended for the State to have free rein over TV, I don't see why they would censor corporations.

    Nor did you explain why "a civic minded person does not = a person driven primarily by profit maximization." Is every single voter truly motivated by civic-mindedness? I suspect not. Plenty of voters support a candidate because he's family, because the man is handsome, because he is articulate, or simply because he promises the voter a bigger piece of the pie. Why is any of these motives superior to "a person driven primarily by profit maximization"? Or are you about to impose some special tests to screen out any voter who may not have the interests of the Republic at heart?

    I suspect that the Framers were far wiser than that. I think they already knew that not every voter is "civic-minded." (whatever that means) I think that is why they wanted the least amount of censorship so that the electorate, with their multiplicity of motives, can participate in the polity and let the best man win. If the best man did not win, then the electorate will be held responsible. This open-minded yet responsible vision of the Republic in action does not require prior restraint and restricting the freedoms of speech and association.

  • Ray Pew||

    wow, nothing seems to unite libertarians and the right in more passion than the defense of corporations and their rights!

    This is typical leftist mischaracterization of the issue. The issue is that corporations ARE collections of individuals and those individuals do not relinquish their rights because of their association.

    All of your arguments concerning the danger of corporate speech were myopic and demonstratively biased. There is NO inherent immorality in profit and therefore no credible argument to restrict liberty because of this.

  • MNG||

    If you look at the history of the laws it seems that it was not trying to get some general restrictions on corporations but to stop corporations from being used to circumvent campaign restrictions. If my PAC is restricted in what it can give to candidate x they didn't want me to simply form a non-profit corporation advocating some issue which was a thinly disguised arm of the campaign of candidate x. So they restricted the speech of all corporations in a limited time frame around the election. It certainly does seem to lack the 'tailored to the least restrictive means' requirement...

  • ||

    The end result is incredibly draconian. It means that you and I can't form a corporation, raise money, and make a movie making our case against a candidate right before the election when such a case matters most.

    How do we have political free speech under those circumstances. You act like this law only applies to some evil corporation looking to buy the election. I have news for you, Exon gives money to both sides and doesn't need to make movies. This law doesn't affect them at all. It affects people like you and I's ability to pool our resources to influence the government. And that is a very bad thing.

  • MNG||

    " You act like this law only applies to some evil corporation looking to buy the election."

    Oh no, as I mentioned above I know it is not restricted to that, it applied to non-profit corps as well as unions too.

  • htjyang||

    You just made the argument in favor of restricting freedom of association.

    After all, why should your PAC be "restricted in what it can give to candidate x" in the first place? Furthermore, why can't supporters of the opposing candidate Y form a PAC of their own and do the same thing? For that matter, why should PACs be necessary in the first place?

  • MNG||

    "why should your PAC be "restricted in what it can give to candidate x" in the first place?"

    Because people worry about the influence of money in elections, because money=power, in this case the power to perhaps arrange sweet government backed rent seeking special treatment.

  • Ray Pew||

    Because people worry about the influence of money in elections, because money=power, in this case the power to perhaps arrange sweet government backed rent seeking special treatment.

    And this occured BEFORE Citizen's United, so it is a red herring. Influential people and organizations will always have greater sway than the single individual. The very concept of democratic systems is to minimize the power of one over the many.

    The Left hate this ruling because it whittles away at the long established advantage held by "non-corporate" political organizations.

  • ||

    Thing is, the word corporation loses all meaning in a discussion like this; it's an extremely broad concept, encompassing as it does such diverse things as non-profits, privately held companies, family businesses, publicly traded entities, multinational conglomerates, one person S corporations, and a variety of other configurations. In spite of all of that, politicians and activists on the left disingenuously (or ignorantly, or both) use it to mean a multinational seller of lead-paint-based baby food, manufactured by crippled third world orphans working 18 hour days for wages paid in radioactive waste, run from a distance by executives whose salaries and bonuses are delivered weekly by tandem trailer (since the cash won't fit in just a semi), dropped off at the whites only country club where they use million dollar bills to light the special greenhouse-gas-emitting cigars they smoke while helping the Kochs buy senators and congressmen who will enact their secret five year plan for the US, codenamed Operation Somalia.

  • ||

    "multinational seller of lead-paint-based baby food"

    +the internets.

  • ||

    I only wish I were exaggerating, but as shown by this screed from the Daily Kos--written by someone I actually know from my high school days and widely praised on Facebook and DK as a brilliant piece of writing-- these people really believe shit like that.

  • ||

    They really do believe it. And it is scary. If you take them at their word, why wouldn't they support some day putting people in ovens?

  • ||

    If it wasn't too long,
    "multinational seller of lead-paint-based baby food" would be a better handle than Somalian Road Corporation.

  • cynical||

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