Why Didn't Nixon Think of This Argument During the Pentagon Papers Case?

An intriguing statement in today's New York Times:

The majority [in Citizens United v. FEC] is deeply wrong on the law. Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money.

The article's unsigned, so I guess we can take that as the official opinion of The New York Times Co.

Comments

[Sudden]

According to the NYT, everything is a creation of the State since everything that exists only exists because our benevolent overlords deem it fit for existence.

[Iason]

Benevolent Overlord -> B.O. -> Barack Obama!

[ed]

companies are creations of the state

That has to be a typo. A big, stupid typo. Or the NYT editorial board has finally passed over into insanity.

[Michael Ejercito]

They fail to realize that they work for a corporation.

Imagine if the Constitution is amended that would allow the government to regulate the speech of corporations. Since the NYT is a corporation, that no more articles critical of elected officials.

[MJ]

I think they are well aware that they work for a corporation, the problem is, they are somehow able to rationalize that the Times's existence as corporate entity does not count though the magic of being the fourth estate. It's massive cognitive dissonance.

[Michael Ejercito]

I think they are well aware that they work for a corporation, the problem is, they are somehow able to rationalize that the Times's existence as corporate entity does not count though the magic of being the fourth estate.

Nowhere in the Constitution is there mentioned a fourth estate as separate and distinct from the rest of society.

[jppatter]

So, it sounds like the NYT believes that if a corporation makes money it is not entitled to 1st Amendment protections. So I suppose if a corporation does NOT make money, they DO get 1st Amendment protections? That must be why newspapers will still be protected.

[Pro Libertate]

What? Does this mean that I shouldn't trust the for-profit corporation that is the New York Times Company?

[Hugh Akston]

No ProL, it means that its ability to express opinions ought to be strictly curtailed. For the good of Democracy.

[Big B]

No no no. The NY Times is more specially than you or I or other corporations. Its the "press," dontcha know.

And had this gone the other way, how long do you think it would have been before Dems started to go after Fox's status as a member of the "press."

[Pro Libertate]

That was one of the reasons the law was facially invalid.

[Hugo Ch?vez]

I completely agree.

[Marshall Gill]

Does this mean that I shouldn't trust the for-profit corporation that is the New York Times Company?

Actually, PL, the New York Times hasn't made a profit for some time. Really hard to call what they do as "for profit".

[Pro Libertate]

Incompetence is no excuse. They mean to make a profit. The capitalist swine!

[Pro Libertate]

I don't get why companies that exist to make money for their shareholders by reporting news (skewed, of course, by the biases within the organization and the ownership) are superior in any way to other companies. Can't they see their hypocrisy?

[Russ 2000]

What good is being a hypocrite if you have to admit it?

[Brett L]

In fairness, the NYT doesn't actually make money or report news, so they might take issue with your description of them.

[briareus]

+1 ZING!

[JW]

ProL--When one of my kids throws a tantrum like this and peels off a nasty series of cognitively dissonant slurs, they get sent to their room and have the error of their ways explained to them afterwards, in no uncertain terms.

It's looking to me the NYT needs a timeout. In Queens.

[Ska]

They actually print in Queens (College Point). Send 'em to Staten Island.

[Seward]

It seems to bother a certain set of people that some people want to make money and that they want to protect that money making from the grubby hands of rent seeking politicians.

[The Gobbler]

Corporations make money.
Governments take money.

[marlok]

Some dope freestyle, Gobbler.

[Lamar]

Corporations are a creation of the state that serve the purpose of making innovation and reasonable risk-taking possible. Since corporations were created along utilitarian lines, I believe they should be granted free speech along such lines. But I'm just not so sure about this idea that corporations are entitled to basic human rights no matter how much personhood we imbue them with.

[Pro Libertate]

Corporations don't have human rights. They're just extensions of groups of people's rights. And only some of those.

[Big B]

Lamar - but the First actually just says "Congress shall make no law ... abridging the right to free speech."

Yes, the court mentioned the person/corporation aspect, but in reality it was just to point out that the "shall make no law" language doesn't differentiate between entities. Its a flat statement: No Law.

Not only that, but the "press" would be impossible under your formulation. And if you want to carve out an exception for the "press," well, good luck with that.

[Anon]

Corporations don't need to be "granted" free speech. Read the First Amendment:

"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."

The "Congress shall make no law..." part is kind of unambiguous, you know?

[MJ]

One of the big holes in the argument that corporations are creations of the state is that even if we accept that premise, the federal government is not the state that created them. I suppose the state that chartered the corporation could put restrictions on it, especially if they were written in the charter, but that does not mean the feds have any authoroty to impose more.

[does not compute]

New York Times see their hypocrisy..?

does not compute
does not compute
does not compute

..aaaggkk ... sptzzz ... fizzle ... crack ... hmmmmm... ding! (small flash, wisp of smoke, and shooshing sound as logic board and/or human brain toasts itself)

[Geena]

I knew it! The New York Times is a 60s robot! That explains SO MUCH.

[R C Dean]

Since corporations were created along utilitarian lines, I believe they should be granted free speech along such lines.

You need to recalibrate. The First Amendment does not grant anyone a free speech right. It prohibits the government from passing laws infringing free speech.

The First Amendment makes no distinctions, none, based on the identity of the speaker.

Proponents of a law to limit communication by corporations first need to show that it is not, in fact, speech.

[Big B]

+1

[thumbs up]

ditto +1

The First Amendment does not grant anyone a free speech right. It prohibits the government from passing laws infringing free speech.

[Libertymike]

Do they honestly think that corporations could not exist without the state?

Many moons ago, when the vertically challenged hirsute former secretary of labor, Robert Reich, was a guest on the late David Brudnoy's show, I called and gave the marxist midget a big heaping dose of reality.

Inter alia, I axed him if any association of individuals could be formed without the state? He responded that they could, but not legally.

Brudnoy did allow me to hammer Reich, but, after my call, he informed Reich that I was one of his "more truculent" libertarian callers.

[thumbs up]

So, when the guys and I meet for coffee and a sandwich every couple of weeks it ain't legal? Damn, that sounds Commie/Nazi/Cuban to me!

[The Gobbler]

What's criminal is that your pairing coffee with sandwiches instead of with pie.

[Tulpa]

The crux of the idea of a corporation is the grant of the legal privilege of limited liability. Some of you seem to have this idea that a corporation is no different from a bunch of guys pooling their money together to buy chips and drinks for the Super Bowl party, and you're utterly mistaken.

[Jersey Patriot]

It's a formal grant of what courts would do anyway. An owner who, by design, has little say in the day-to-day business of his or her company shouldn't suffer unlimited liability. Corporate owners who do have a significant say do suffer increased liability, called "piercing the veil".

[Libertymike]

Jersey Patriot-

There's a little more to the doctirne of piercing the corporate veil than that. In the First Circuit, the existing decisional law dictates that judges are to examine about a dozen factors in ascertaining whether the veil should be pierced.

[Attorney]

But that argument would mean that partnerships and unincorporated associations can spend however much they want on political speech. I don't think that's what the NYT has in mind.

[Libertymike]

And what stops you, me and Sugar Free from forming an association/entity which provides Super Bowl party services to customers upon the condition that if they are dissaitisfied with our services they must only look to our association/entity, and not to any of us in our individual capacities, for relief?

[Libertymike]

The previous post is for Tulpa.

[Gilbert Martin]

Like RC Dean said, this is irrelevant.

What the Constitution does is prohibit enacting laws that restrict freedom of speech.

The nature of who or what is doing the speaking has nothing to do with it.

[D.R.M.]

Limited liability in terms of voluntary debts is trivial to re-invent; all you do is add a paragraph to contracts limiting debts of the entity to the assets of the entity.

Beyond voluntary debts assumed by the entity, limited liability is just the other side of the coin of the concept of corporate liability. Holding Mrs. Random Stockholder liable in an unlimited degree for the managerial decision of a fourth-layer-down employee should be obviously unreasonable. Corporate form simply provides a structure for adjudicating this more easily.

[????]

But you forget, there are no human rights unless the state grants them, so anything you do without state permission is ipso facto illegal. Remember this and everything else takes care of itself.

[R C Dean]

All this yammer about how corporations couldn't exist without the state is irrelevent to the issue at hand.

Nothing the First Amendment allows the state to limit the speech or publications of a corporation, just because the state chartered the corporation.

Under the First Amendment, the only way to keep corporations from engaging in speech or publication, is to abolish them in their entirety.

[Groovus Maximus]

The Citizens United ruling is likely to be viewed as a shameful bookend to Bush v. Gore. With one 5-to-4 decision, the court's conservative majority stopped valid votes from being counted to ensure the election of a conservative president. Now a similar conservative majority has distorted the political system to ensure that Republican candidates will be at an enormous advantage in future elections.

Does this Blame it on Bush mantra EVER stop with these people?

The straws these people attempt to grasp could make one hell of a Wicker Man.

The revisionist history here is beyond contempt.

[Libertymike]

Is there a pun intended in that second sentence?

[Groovus Maximus]

Why yes, yes there is LM. Thank you for noticing. More tea?

[Episiarch]

one hell of a Wicker Man

How'd it get burned?!?!? OH NO THE BEES

[Dagny T.]

[suckerpunches woman while wearing bear suit]

[Dagny T.]

"Step AWAY from the bike."

[Warty]

Your tongue was frozen, now you've got something to say

[B.P.]

Why is it assumed that the Republicans will gain an election advantage from the free-flow of corporate ad dollars?

[B.P.]

Oh, I see Jacob Sullum went down this road in a post below.

[Tulpa]

When the hell did we have a conservative president?

[The Art-P.O.G.]

When the hell did we have a conservative president?

For the win.

[newshutz]

Calvin Coolidge?

[joshua corning]

Now a similar conservative majority has distorted the political system to ensure that Republican candidates will be at an enormous advantage in future elections.

At what point is it the majorities responsibility to insure the political viability of the minority?

Pushing beyond open access for minority parties and candidates it would seem pretty hard to ignore the Libertarians and Greens perpetual minority status.

The Theory goes that Democrats are unpopular with corporations because of their politics. (this is the internal theory of the argument mind you not fact). So the theory goes to politics "equal" the free speech of corporations must be curtailed. Well what about Libertarians? Whose free speech should be curtailed to insure our "equal" access to political power?

I don't know why i going into this. The mind numbing stupidity of this kind of argument is painful to try and understand.

In essence the argument is that republicans and corporations are bad and should not be allowed free speech.

Are there any on the left who make the argument that free speech even when expressed by bad poeple is a necessary evil and the benefits of it far out way this minor bad?

If not then why do we treat the left with any integrity in regards to free speech at all?

[Gilbert Martin]

The real political dynamic in all this squealing by the left is that before they always had a built in advantage because the totally unregulated mainstream media is primarily liberal and therefore provides their side with what is essentially lots of free propaganda. This hit a new zenith with the Obama election as many reporters were little more than stenographers of DNC talking points.

The recent ruling allows some other big hitters to get in the game and they absolutely hate that.

[Big B]

You know, I really, really, truly don't care what people say or think, unless it makes sense to me. Usually after some research.

I especially don't care if Wal-Mart wants me to vote for candidate X.

Why do those upset by this law seem to think that I will/do care?

And no one seems that upset when unions come out in support of a candidate.

[The Art-P.O.G.]

Hmmm...it seems like independents would be the most affected by a change in the intensity of political sound/fury, but it seems like independents and third parties would be at least as well-adapted to critical thinking as partisans. So I agree with you.

[?]

Do they honestly think that corporations could not exist without the state?

Theirs wouldn't.

[Episiarch]

I have always been amazed at the cowardice of unsigned editorials. If one of your writers has an opinion, let's hear it and who it is, you pussies.

[The Economist]

Hey!

[The Federalist Papers]

LOL Whut?

[joshua corning]

If one of your writers has an opinion, let's hear it and who it is, you pussies.

Hi my legal name is Joshua J Corning What is yours Episiarch?

Wait let me guess...

Is it Big Dripping Pussy?

[Johnny Longtorso]

Political parties wouldn't exist without the state either, so they shouldn't have rights.

[Pendulum]

Correct, actually.

States can require candidates for office to run independently, and can refuse to recognize political parties entirely. Therefore, political parties have no constitutional right to exist, let alone to speak freely.

States can't, of course, prohibit voluntary associations of people from calling themselves a 'political party', and advocating for policies and candidates, but that's something quite different.

[Pendulum]

Partnerships are naturally occurring entities which result naturally from two or more people engaging in an endeavor. The state cannot ban them.

Corporations are created by state law - statutory law, not common law. The State can ban them. Corporations have no constitutional right to exist.

If state legislators repeal these provisions, corporations do not exist, let alone have free speech rights.

Corporations typically receive specially limited liability and tax breaks. Those are the primary reasons for using the corporate form.

Why can't Congress, or states, condition these special benefits upon certain limitations as to how the fruits of these benefits may be used?

I've yet to hear any satisfactory response.

[Ska]

They probably could, then watch as the most profitable corporations, the ones with the most to lose, flee to another jurisdiction with more business friendly corporate law.

[mitch]

I am guessing it is because the Constitution says "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...." A law that says, "You get a tax break if you promise to not say mean things about Obama" sounds like a law that abridges the freedom of speech.

[Ecolibertarian]

That's sort of like saying that "roads are creations of the state, so the government can decide whom to allow to engage in protest marches, and whom to ban." If the state creates an advantage, it has to give that advantage to all equally, and it doesn't justify further limitations on freedom.

Moreover, if statutory law didn't pre-empt the common law on limited liability, it would be handled contractually anyway. (Abolish third-party LL of course.)

[R C Dean]

Why can't Congress, or states, condition these special benefits upon certain limitations as to how the fruits of these benefits may be used?

Because the Almighty State is not allowed to impose limitations that "infringe on the freedom of speech or of the press."

Really, what is so hard about this?

[Derp]

Derp derpitty derp. Derpitty derp derp derp.

Derpy derp, derpitty derpitty derp.

I've yet to hear any satisfactory response.

/derp

[Gilbert Martin]

"Partnerships are naturally occurring entities which result naturally from two or more people engaging in an endeavor."

Naturally occuring entites?

Does that mean parternships sprout and grow out in the meadow along with the wildflowers and dandelions?

No particular type of contractual arrangement between groups of people are any more "natural" thany any other type.

[EscapedWestOfTheBigMuddy]

Liertymike said

Do they honestly think that corporations could not exist without the state?

Be a little careful with this kind of argument. The thing that distinguishes a "corporation" from other associations of people is which people are vulnerable to being sued for the group's actions and what assets are at risk if they lose. That distinction lives in the law, and (at least here and now) the law is the province of the government.

Maybe (hopefully!) Libertoptia can support some kind of corporate entity, but for the nonce that is rather speculative.

[Fluffy]

We've been over this ground before.

If the limited liability corporation did not exist in our law, I could duplicate its limited liability features in about an hour using debt instruments instead. Anyone with a passing knowledge of late medieval and Renaissance finance could do so, because before the limited liability corporation even existed, people groped about for a couple of centuries trying to come up with ways to separate investment from joint and several liability.

[T]

Thank you, Fluffy. Making folks understand that corporations and surrounding law is a matter of the state recognizing and legitimizing accepted business practices is so damned difficult. Corporations existed before the law surrounding them did.

[EscapedWestOfTheBigMuddy]

Must have missed it and will defer to your expertise in late medieval finance (and what the hell do you do, that you would posses such knowledge?).

Question: What, then, is stop EvilCo, GiantLmt, and DestroyTheEarthInc from forming one of these organization to do their spending for them?

[Gilbert Martin]

The unlimited liabilty concept that the corporation protects against was every bit as much an artificial construct as is the corporation created to negate it.

[John]

"The founders of this nation warned about the dangers of corporate influence. The Constitution they wrote mentions many things and assigns them rights and protections ? the people, militias, the press, religions. But it does not mention corporations."

So because the framers didn't carve out special protections for corporations, they were knew the dangers of them? Ah ok.

[Groovus Maximus]

Remember John: It's a LIVING BREATHING DOCUMENT(tm).

The framer's supposed prescience is vastly overrated.

Doofus 😉

[James Anderson Merritt]

Other contributors here have nailed it, but I don't think the point can be emphasized enough. The First Amendment does not directly protect PEOPLE. It protects SPEECH: That is to say, the expression of meaning or ideas. Clearly, when the Constitution was written, only people could express ideas (and only people appreciated and were presumed to benefit from political, religious, and economic freedom). We do presuppose some conscious intent to express ideas within the concept of SPEECH. But it isn't strictly necessary for speech to have a (once-)living author, or an audience, or that matter, merely one of the two at any one time. The people indirectly protected by the First Amendment are both the speakers/authors AND the (potential) audience. We have as much of a need to receive and evaluate new ideas, information, and meaning as authors and speakers have to produce them.

The genius of the Constitution lies in large part in its restriction of what government can do, rather than by establishing what the people can and cannot do, or their rights. I am reminded of that genius several times a month, these days -- sometimes several times a day -- and I wish that this key point were more carefully taught in schools.

[Groovus Maximus]

+100

[Libertymike]

Back to your post upthread:

It just hit me-the trifecta-I now see three puns. The first one that I recognized requires a lttle knowledge of NYT history, shall we say.

[John]

Contrast the language in the second and fourth amendments "right of the people", the 15th "Citizens of the United States", and fifth amendment "no person" with the language of the first amendment "no law ... abridging freedom of speech". The other Amendments are individual rights that apply to certain kinds of individuals. The 1st is not a right but a restriction. Congress can't abridge the freedom of speech period. If it was a right limited to people, it would say something like "every person shall have freedom of speech".

[Pendulum]

Unless I'm wrong, you're arguing within a literal meaning, textualist framework, so I'll do so too.

1. Is it textually that clear?

Congress shall make no law...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.

I would argue that the use of the word PEOPLE defines the scope of who is entitled to not only the right to associate, but the right to speech and press as well. Without reading *something* in, the 'who' is left hanging. Just as the Second, Fourth and Fifth Amds. specify that the right is of the "people" or "person", it would be anomolous to read the First otherwise.

2. Do you also believe that, literally, Congress (or the states, assuming you accept incorporation) can make NO law restricting any speech? No fighting words doctrine; no libel laws?

3. Speaking of incorporation, do you accept incorporation? If so, how do you justify it textually? If not, you presumably accept that states can impose broad prohibitions on corporate speech under the US Constitution, right?

The Amendment states:

[John]

The word people comes after "freedom of speech". It therefore only applies to the clauses after it. That makes sense. It is the right of the people to assemble and peaceably petition for redress. Those are individual rights. But speech and press are not positive rights, but restrictions on the government.

[SugarFree]

Not to mention, "people" are mentioned after a semi-colon.

[JW]

Do you also believe that, literally, Congress (or the states, assuming you accept incorporation) can make NO law restricting any speech? No fighting words doctrine; no libel laws?

Personally, I think the "fighting words" and sedition exemptions are pure bullshit.

In terms of libel and fraud, direct and intentional harm is indicated. You're still free to speak, but there could be penalties for doing so.

As much of an free speech absolutist that I am, stating that speech intended to cause direct harm isn't speech, but like anything, that's a barrel of monkeys waiting to be unleashed as to what "harmful" is.

[JW]

Argh. Brain fail.

"...stating that speech intended to cause direct harm isn't speech, isn't a stretch IMO...

[John]

I agree. You shouldn't have to go to jail for libel or slander, just pay damages for it. And as far as the "fire in a crowded theater case", in that case it is not the content of your speech that is being punished, but instead is the effect (causing people to needlessly stampede) and the intent (yelling a false alarm with the intention and reasonable expectation of causing harm) that is being punished.

[Brett L]

Dude. You fail at grammar. the verb abridging is applied to 4 objects:
1. the freedom of speech
2. the freedom of the press
3. the right of the people peaceably to assemble
4. the right of the people to petition the Government for a redress of grievences.
Notice that semicolon? That separates the unabridgeable freedoms from the unabridgeable rights of the people

Also as to 2:
Fighting words doesn't restrict a person's ability to express himself politically. Nor does libel. Those are both examples of speech between 2 private parties.

3. Doesn't matter. This was about Federal election law. I'm pretty sure the States even pre-incorporation couldn't pass laws designed to curtail federal political activity.

[R C Dean]

I would argue that the use of the word PEOPLE defines the scope of who is entitled to not only the right to associate, but the right to speech and press as well.

You would have a stronger argument if the limitation on government power over speech and the press made any reference to "the people." It doesn't.

Consider:

Exxon may not build toxic waste dumps or dump arsenic into the water; or build nuclear plants in national forests.

Would you say this means that Exxon is prohibited only from building toxic waste dumps or dumping arsenic into the water in national forests?

[Gilbert Martin]

"Iwould argue that the use of the word PEOPLE defines the scope of who is entitled to not only the right to associate, but the right to speech and press as well."

And you would be wrong because that is not what it literally says.

[James Anderson Merritt]

"or an audience, FOR that matter,..." oops

[Ska]

Could you people throw some lights regarding this issue on how to go about?

[swillfredo pareto]

Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights.

Corporations cannot vote in elections; corporations cannot pass laws. I am extremely unclear on what it is in this ruling that they are so afraid of. It cannot be that they are worried that politicians will become even more beholding to special interests; that is simply not possible. What is it in the nature of the NYT editorial board that prevents them from even considering that the solution is to restrict the government's power, not the people's?

[mitch]

Journalists perhaps fear competition; limiting the number of people who can opine about an upcoming election gives more power to those who are still allowed to opine. This is an edge they will like to preserve, just like US steel manufacturers would like to put tariffs on foreign steel.

Why left-wing political activists are worried about more speech, I don't quite know. Maybe they fear their ideas cannot survive harsh criticism?

[Gilbert Martin]

"Why left-wing political activists are worried about more speech, I don't quite know. Maybe they fear their ideas cannot survive harsh criticism?"

Because having an unregulated liberal media that helpfully spreads their propaganda for them as has been the case for a very long time is a lot bigger advantage when no one else can talk back.

[jester]

don't a lot of corporations disguised as newspapers endorse candidates?

[Tony]

No. Corporations may own newspapers, but the journalists who work at newspapers always push back strongly whenever upper management tries to influence their reporting or editorializing.

Treat the corporation like a corporation (God knows media companies have a lot of political power), and the newspaper like a newspaper.

[John C. Randolph]

Perhaps you should ask yourself why huge media companies consistently hire pro-government shills. Upper management doesn't need to influence their reporting, they just hire the people who share their beliefs.

-jcr

[Tony]

Like News Corp? Blah blah blah liberal conspiracy to oppress you. Here's an idea. Maybe most journalists are liberals because most college educated people are liberals. Just a thought.

[anonymous]

So you're saying that, to preserve democracy, freedom of thought, and an independent electorate, we should recognize that colleges should not be free to spend their resources on filling the heads of innocent, gullible young adults with self-serving partisan drivel?

[MJ]

A corporation magically has rights when it operates a newspaper? Or is it maggically not a corporation when it operates a newspaper?

The problem for the law here is: publishing an editorial candidate endorsement and producing a documentary with an editorial viewpoint on a political figure are not fundamentally different activities. They look exactly the same to the law. There is no principle beyond your emotional attachment to newspapers to treat corporate run newspapers differfently than other corporate entities.

[TrickyVic]

The underlying problem, if I dare call it that, is the majority of the voting public are sheep to large amounts of advertising, and unrational accusations. If Bloomberg wants to run for President he can load the air waves with tons of negative ads about his opponents. His opponents can't keep up so you'll see more ads for Bloomie.

They fear the sheep will leave their pasture because of low resistance to ad nauseum. They may be right about that.

No surprise they can't understand the first amendment does not apply to people or corporations. It applies to Congress, and the intent is pretty clear.

[J_L_B]

They fear the sheep will leave their pasture because of low resistance to ad nauseum. They may be right about that.

This statement lies at the heart of liberal thinking; an implicit assumption that he with the most money wineth the election. The idea that voters could be unimpressed and often annoyed with negative ads and an avalanche of them would have a counterproductive effect is dismissed as beyond the brain power of the average American. Censorship is rationalized by believing the public is too ignorant/stupid to decipher for themselves the information they're presented with, and their superiors in government must ensure only the correct information is provided to them. Isn't that essentially what we are seeing in the reaction to this decision?

[Tony]

While your trust in the skepticism and reason of the American people is heartwarming, this argument essentially says that all advertising is pointless.

[gaijin]

not pointless, per se, just not terribly effective on its own.

[anonymous]

Of course not. It suggests advertising is not the same is mind control.

If someone advertises a product I've never heard of, it might well change my behavior -- I can't very go out and buy something that I don't know exists. But that doesn't mean it caused me to act against my own best interest.

If the people cannot critically evaluate information that is presented to them, however charmingly or deceptively, then they're unfit to rule. You can't "preserve democracy" by banning corporate speech, because if it's necessary to do so, democracy is, at best, a lost cause; at worst, a legal fiction.

More to the point, if you want to stop people from voting based on false information spread by interested parties, you should start by banning politicians from speaking.

[John C. Randolph]

this argument essentially says that all advertising is pointless.

You have a distorted view of what advertising can accomplish.

-jcr

[Michael]

The underlying problem, if I dare call it that, is the majority of the voting public are sheep to large amounts of advertising, and unrational accusations.

It's been my experience that the majority of people most susceptible to advertising are the ones that actually make advertisements for a living. I don't think that the rest of the American public reflect this tendency to the same degree.

[gaijin]

as a reformed ad agency minion, I agree with your statement strongly

[Echton]

Anyone paying attention the the advertising in the recent MA Senate race should realize that spending more than your opponent on negative does not a winning strategy make.

[EscapedWestOfTheBigMuddy]

Corporations typically receive specially limited liability and tax breaks. Those are the primary reasons for using the corporate form.

Why can't Congress, or states, condition these special benefits upon certain limitations as to how the fruits of these benefits may be used?

At least two reasons:

1) The law in question attempts to distinguish between those corporations that are media and those that are not, thus giving the government the power of veto of the press: a big no-no, and totally contrary to the text of the first amendment.

2) The law in question attempts to distinguish between speech that has political effect and that which does not: an idea total contrary to the spirit and point of the freedom of speech. I mean, come on, setting up a government body whose job it was to say "Hey, that my influence the direction of politics in this country, you can't say it!" What kind of country do they think we are, China?

And possibly others. I am, for instance, mulling over how it relates to "the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

[Rich]

[FTA:] The founders of this nation warned about the dangers of corporate influence. The Constitution they wrote ... does not mention corporations.

Alrighty, then.

[Rich]

Sorry, John made this point @ 3:20.

NTS: RTFT.

[John]

That piece of no sequiter is worth mentioning twice. I have met NYT reporters and editors. They are very smart people. They have to know what kind of a crap argument that is. They must just think their readers are just that stupid.

[John]

That piece of no sequiter is worth mentioning twice. I have met NYT reporters and editors. They are very smart people. They have to know what kind of a crap argument that is. They must just think their readers are just that stupid.

[The Art-P.O.G.]

:::golf clap:::

[Joe M]

That piece of no sequiter is worth mentioning twice.

Or thrice.

[The Art-P.O.G.]

:::golf clap:::

[anonymous]

Weren't some of the original colonies technically corporations, or at least run by corporations?

[Gilbert Martin]

Indeed the very first English settlement - Jamestown was established as a corporation.

[Pendulum]

1) The law in question attempts to distinguish between those corporations that are media and those that are not, thus giving the government the power of veto of the press: a big no-no, and totally contrary to the text of the first amendment.

I don't think media corporations should be treated differently. To the extent Stevens suggests they should be, I think he's wrong.

2) The law in question attempts to distinguish between speech that has political effect and that which does not: an idea total contrary to the spirit and point of the freedom of speech.

The distinction between political and non-political speech permeates much of the Supreme Court's First Amendment doctrine. It might be wrong, but it's well established. See, e.g., Chaplinski, Brandenburg.

I haven't devoted nearly the time to this case to properly understand the nuances. My instinct is that the majority is correct as to the key "electoral communications" provision, as overbroad. But I question the intellectual solidity of the majority's foundation.

[Libertymike]

All the intellectual solidity needed is found in the following words:

Congress shall make no law...

What is intellectual claptrap is the notion that the absolutist position is somehow intellectually feeble because it is absolutist.

No, the absolutist position is the intellectually superior position.

[SugarFree]

Patents and copyright are also "special" privileges granted for the pragmatic ends of promoting innovation and commerce. The corporation as a legal person for a small set of right is in no way for of a government intrusion in the private sphere that 99% of everything else they do.

[Scalia]

Your stupid minds! Stupid! Stupid!

[Jersey Patriot]

I think the folks supporting campaign finance reform have their hearts in the right place. Problem is, campaign finance hasn't done a thing to staunch corporate influence. Why? Two reasons:

1. The real financial power of corporations lies in giving cushy, lucrative lobbying jobs to retired government officials, not in cutting $6000 checks in Senate campaigns.

2. The governing class and the business elite share a general outlook on the world, having come through the same elite schools and being vetted by the same sorts of people.

Money and politics are always going to seek each other out, and campaign finance limits violate freedoms without addressing the underlying problem.

[R C Dean]

Too many words, Jersey. As always, the Iron Laws are in an infallible guide.

Problem is, campaign finance hasn't done a thing to staunch corporate influence. Why?

Money and power will always find each other.

[T]

RC,

Do you have the current compiled list of the Iron Laws over at Samizdata somewhere?

[R C Dean]

Nah, I've got dormant over there (long story, but it's me, not them).

The current revelation of the Iron Laws is as follows:

1. You get more of what you reward and less of what you punish.
2. Money and power will always find each other.
3. If everything is a priority, nothing is a priority.
4. The less you know about something, the easier it looks.
5. You aren't free unless you are free to be wrong.
6. Me today, you tomorrow.
7. Foreseeable consequences are not unintended.

[Joe M]

What exactly does #6 mean?

[Groovus Maximus]

That was truncated from "What you use against me today, can be used against you tomorrow"

[Pro Libertate]

That is correct. So all of those unprecedented abuses of power by Clinton were used by Bush. Who innovated in extraconstitutional behavior himself only to see Obama do it. And so on until government has expanded enough that one party will be able to simply seize permanent control over the government.

[James Anderson Merritt]

I wonder: Would the meaning be more readily seen if the Law were "Me today, thee tomorrow," harking back to several related "me ... thee" sayings?

[EscapedWestOfTheBigMuddy]

1) The law in question attempts to distinguish between those corporations that are media and those that are not, thus giving the government the power of veto of the press: a big no-no, and totally contrary to the text of the first amendment.

I don't think media corporations should be treated differently. To the extent Stevens suggests they should be, I think he's wrong.

In which case the law would have the practical effect of preventing most papers of record, and the network and cable news from doing any political editorializing at all, and plaster a vast chilly wetpack over their factual reporting; it would shut down all the punditry talking heads shows. Somehow I can't see that as consistent with the freedom of the press.

2) The law in question attempts to distinguish between speech that has political effect and that which does not: an idea total contrary to the spirit and point of the freedom of speech.

The distinction between political and non-political speech permeates much of the Supreme Court's First Amendment doctrine. It might be wrong, but it's well established. See, e.g., Chaplinski, Brandenburg.

But in other contexts, political speech receives more not less protection that other categories of speech.

The whole thing is and always has been predicated on the idea that you are protected from governmental interference when you're standing on a soapbox bellowing at a crowd, but that (somehow) the moment you reach for your wallet to buy a wider distribution your communications are suddenly fair game for intrusive governmental tinkering.

That idea is obviously bonkers when applied to individuals, so people have tried to draw a line around it: to say these people and groups and organizations are just exercising their rights, they are OK; but those organizations don't have rights.

And then it turned out that the line between these and those was not, in fact bright, thin and well defined. So we get a speech panel.

Like Jersey Patriot said: hearts in the right place, but on the wrong side of the issue.

[anonymous]

"In which case the law would have the practical effect of preventing most papers of record, and the network and cable news from doing any political editorializing at all, and plaster a vast chilly wetpack over their factual reporting; it would shut down all the punditry talking heads shows. Somehow I can't see that as consistent with the freedom of the press."

But, but corporations don't have freedom of the press, only J-School graduates! What's next, allowing them to vote? Hold office? Own slaves?

[Some dude]

"The article's unsigned, so I guess we can take that as the official opinion of The New York Times Co."

A real person authored the article. Is it so hard to say that it was that real person that has first amendment rights and not "The New York Times Co."?

[R C Dean]

Its real easy to say, if you think the State should be allowed to prohibit The New York Times Co. from publishing it.

[Michael Ejercito]

Its real easy to say, if you think the State should be allowed to prohibit The New York Times Co. from publishing it.

According to the New York Times, yes.

[aix42]

Glenn Greenwalds acolytes are very angry that thier fomer constitutional law and civil rights litigator has agreed with the ruling. Good Stuff!

[MattXIV]

Problem is, campaign finance hasn't done a thing to staunch corporate influence. Why?

Beyond the practical impossibility of building regulations that couldn't be worked around and aren't obviously unconstitutional, people are disinclined support corporations political agendas, except for the ones that give them their paychecks. Thus, for the same reason everybody's against pork except when it goes to their district, everybody's against corporate welfare and regulatory loopholes except when it's their job that's being preserved or advanced by them.

The company I work for is in a pretty left-leaning college town, so most of the employees are liberals (I've confirmed this by looking up the donations from the last election cycle, almost all Dems and far more Ron Paul than any other Republican), but ask any employee and they'll say how wonderful and necessary the subsidies for companies that buy our products are. The primary source of political influence for corporations in my experience is people's jobs, not conventional electioneering.

[e r murrow]

Congress shall make no law...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.

a corporation running a POV ad sure sounds like people peacefully assembling and petitioning the Government for a redress of grievances.

[James Anderson Merritt]

Especially if the corporation is a membership organization, such as an advocacy group or a union. This is just one more reason why the fixation on corporations as "legal persons" is pointless in this case. I don't think corporations should be persons with rights (though it makes sense for them to have standing to sue or be sued in court), but whether they are or not seems fairly irrelevant to First Amendment issues.

[Tony]

Everyone knows what the freedom of speech is and what its purpose is. It is stretching the definition of speech beyond recognition to say that corporations should be able to spend without limit to influence elections. That scenario is directly counter to the open, democratic system free speech is meant to promote.

[T]

Because corporations running ads is the apocalypse. Damn. You'd think we'd all be living in the burnt out rubble of what used to be civilization.

[MattXIV]

If the spending is on speech - such as the production and distrution of a movie, newspaper, or *gasp* advertisement, the stretching is required to exclude it from freedom of speech. If political ads don't count as speech, then what possibly could?

[joshua corning]

Everyone knows what the freedom of speech is and what its purpose is.

Everyone but you.

[John C. Randolph]

It is stretching the definition of speech beyond recognition to say that corporations should be able to spend without limit to influence elections.

Why should someone lose their right to express themselves, just because they're acting in collaboration with others?

The rights of the people who comprise a corporation are the same whether they're acting individually or cooperatively.

-jcr

[JW]

Sure. Because there are only certain things that should be allowed to be said.

You do have that list handy, right?

[duane]

I'm confused about the debate whether corporations should have the same rights as persons. What does a corporation look like if I met one?
Does anyone have photos of the Hillary movie when it was being produced? Was a "corporation" operating the camera? Did a "corporation" write the script?
If so, I am most curious as to what a "corporation" looks like "in the flesh" or "spirit", or whatever.

I always thought it was people who actually penned a script, operated a camera, hired actors, etc.

[T]

People enslaved by the evil mind control rays of the corporations, duane. Nobody would voluntarily work for a corporation, so it must be the evil mind control rays.

[Pro Libertate]

I honestly don't get all of this griping about corporations having rights. They're simply groups of people who are lumping their rights together. If corporations couldn't own property, contract, litigate, etc., that would help the rest of us exactly how?

We--meaning the little people--need limited liability in order to invest our money without impossible risk. That wealthier people can do the same means nothing, because their participation helps us make more money, too.

There's also another consideration: Not all limited liability businesses are for-profit.

[what]

to paraphrase deangelo barksdale "this look like money to you nigga? money be speech!"

[joshua corning]

How would this be any less hypocritical if it was signed by Krugman or Brooks or Friedman.

They were payed.

What if the company I worked for payed Jesse Walker to write a political hit piece against some local County Commissioner here in Washington State? Would it be better or worse if he signed it?

[Jersey Patriot]

Tony,

Corporate money's influence is behind the scenes, not in front of the camera. Wall Street isn't getting bailed out and coddled because it's running pro-bailout ads or giving massive sums to political campaigns. It's because Wall Street and Congress/Obama/Bush come from the same crew, hold similar beliefs, and can cash in on each other. It's the revolving corporate/government door that's causing the real problem.

[Corduroy Rocks]

The revolving door wouldn't be an issue if the government didn't have the power to reward and punish to the extent that it does.

I prefer the idea that the private sector is involved in its own government as opposed to career politicians and bureaucrats.

I oppose the intrusiveness of the government into my wallet and my personal life.

People who believe that Citizens United was wrong basically are the same people who believe that we can legislate our way to utopia. People who when asked on the street what laws Congress should enact, don't say "None." or "A law that would sunset all of federal laws after ten years." To them, more law is better law.