[EL] ELB News and Commentary 12/20/11

[Volokh, Eugene]

                I appreciate Jamie’s response, and I’m glad that we might agree on the point that the First Amendment gives no special rights to the institutional press.  But if this is so, then I should note again that Jamie’s arguments would cut in favor of denying constitutional rights to corporate-owned media.  Media CEOs, and their employees, are “tak[ing] money out of their corporate treasuries to spend” on publishing editorials, just as are the CEOs of other business enterprises.  In my article, I do not speak about what the Framers saw as the constitutional rights of corporations; I mention the article only because I think they saw the rights of the institutional press as being the same as the rights of other speakers.  But the point of my post is that, under Jamie’s argument, the government would have the power to restrict speech by media corporations as well as other corporations.  Maybe that would be good or maybe it would be bad, maybe it would be consistent with original meaning and maybe it wouldn’t be – but in any event, that is the implication of Jamie’s argument.

                As to the question whether Jamie supports repudiating Buckley’s protection of independent expenditures, I’m delighted to hear that he now would retain that (controversial) aspect of Buckley, and would leave people free to spend their own money to express their views.  I just find it hard to reconcile with his criticism of Buckley in the piece I quoted and linked to.  Jamie, given that you think Buckley is right as to protecting independent expenditures, and right as to protecting the candidate’s own expenditures, what exactly are you criticizing Buckley for?  Which parts of Buckley would you reverse, while retaining Buckley’s First Amendment protection for independent expenditures and candidate expenditures?  Just the restriction on total campaign expenditures (though with the understanding that the candidate would at least be able to spend his own money without limit)?

                As to your questions:  A & B.  I think government entities may restrict the speech of their own subdivisions, just as a corporation (for-profit or nonprofit) may dictate the speech of its subsidiaries.  C.  If the question is whether the federal government may ban states for spending money on speech that supports a candidate, I’d be inclined to say no, though I say it tentatively, since I haven’t thought much about the interesting question of the First Amendment and government speech.  D.  I agree with FCC v. League of Women Voters and Regan v. Taxation With Representation that the restrictions on the use of government-supplied money are constitutional only to the extent they leave the recipient free to speak with its own money; so Harvard, the United Way, and the United Church of Christ should be entirely free to speak through 501c4-supplied money (which may be gathered without limit from everyone).  E.  I think foreign-owned business corporations should be free to speak about elections, just as I think noncitizen individuals should be free to speak about elections.

                Eugene

From: Jamin Raskin [mailto:raskin at wcl.american.edu]
Sent: Tuesday, December 20, 2011 7:51 PM
To: Volokh, Eugene; law-election at uci.edu
Subject: RE: [EL] ELB News and Commentary 12/20/11

Eugene—I am glad to learn of your forthcoming UPenn Law Review article trying to settle the meaning of the “press” clause, which sounds fascinating and important indeed, and I look forward to reading it.  (And I actually hope you are right because I have always believed that “the people” have rights coextensive with that of the institutional press, which is why, for example, the Supreme Court’s internal rule allowing reporters, but not mere citizens, to take notes in the chamber is presumptively unconstitutional and should be invalidated.)  But, as to the issue at hand, even assuming the complete truth of your argument as you describe it, how does it prove the only point of relevance to the discussion gripping America and that we are having on this listserv: whether for-profit corporations are properly understood to have the right to spend corporate treasury funds on political campaigns as though they were part of “the people” and spending their own money?  The originalist work you need to do in order to prove the affirmative of that proposition is that the First Amendment was written and understood to apply to business corporations as well as people.  But most of the historical evidence and Supreme Court authority that I know of is quite to the contrary.  Do you have such evidence?  Did you come across any in your historical examination of the press clause? I would love to see it because that is all that really counts in this discussion.  At best, your excellent findings about the press clause presumably show that all rights-bearing individuals under the First Amendment, whoever they are, have a right to use the printing press (or contemporary equivalent, I assume, ie the Web) for the purposes of pamphleteering, newspapers and so on, along with the separate right to speak, but the argument tells us nothing about the political campaign spending rights attendant to “artificial” corporate entities chartered by the state and endowed with the special legal status and privileges that have been emphasized by Supreme Court justices from Chief Justice John Marshall to Justice White to Justice Rehnquist.  Meantime, nothing you have quoted from my Yale Law and Policy Review piece remotely supports your claim that I “would support restricting the ability of private individuals to spend their own money to speak about candidates.”  I believe, with huge numbers of professors and citizens (including you, I imagine), that parts of the Buckley decision are poorly reasoned, but I have never advocated or supported restrictions on the campaign expenditures of actual people.  My argument in that piece (I wrote the first half) was on behalf of the superiority of voluntary public financing regimes to private financing regimes in which dramatic background inequalities come to reproduce themselves in electoral politics and government.  This is essentially the position of the national ACLU, which has long advocated for public financing of electoral campaigns without curtailing any person’s right to spend.
Well,  I am afraid I have to discipline myself and get back to doing my syllabus and working on a brief right now, so I will allow you to answer the foregoing without exercising any rights of rebuttal I may have tonight.  But, since I have tried to address your hard questions, please answer mine along the way: if the “identity of the speaker” is wholly irrelevant to the rights of campaign spending and all that matters is the character of the speech itself (is it political?), do the following cases of clearly political speech enjoy First Amendment protection in your view and, if not, why not?  A. The city council of Boston appropriates one million dollars from its municipal treasury to spend in a statewide referendum on progressive taxation in order to counter the corporate spending of First National Bank of Boston and Baybanks.  The Commonwealth of Massachusetts tries to stop it from doing so.  Does the municipal corporation of Boston have a free speech right to spend in this way?  B. If the private corporations are spending money independently to run ads on behalf of Scott Brown for Senator on the theory that he will favor them, can municipal corporations spend money independently to run ads on behalf of Elizabeth Warren on the theory that she will favor them?   C. Let us say Massachusetts decides through its proper legislative channels to allow such campaign expenditures and indeed to make some of its own, should that be protected speech?  D. Harvard University, the United Way and the United Church of Christ all decide to get in the act and spend several million dollars in the referendum campaign and on behalf of Senator Brown or Professor Warren.  When it is objected that they are non-profits enjoying special tax privileges, they observe that this is an obsolete form of reasoning since the special privileges attendant to business corporations (limited liability, perpetual life, etc.) no longer deprive their political speech of constitutional protection.  All that matters is that the entity is a vehicle for political speech.  Are they right?  Do non-profit corporations have the same political rights as for-profit corporations or is one class constitutionally favored over the other? On what basis?  E. What about business corporations that are 100% foreign-owned, 50% foreign-owned or 25% foreign-owned?  Do they get Citizens United protection in spending freely in our politics?   (Should this landmark decision be followed logically by Non-Citizens United?)  I hate to trouble you with these questions but I assume the answers are easy since the “identity of the speaker” is totally “irrelevant” and we just want to enable all the ideas to get out there.
And to all a good night. . .


From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, December 20, 2011 5:20 PM
To: law-election at uci.edu
Subject: Re: [EL] ELB News and Commentary 12/20/11

                Jamie:  I tried to canvass the history of the “freedom ... of the press” in a good deal of detail – some might say too much detail – in my forthcoming University of Pennsylvania Law Review article on the subject, http://www.law.ucla.edu/volokh/press.pdf, and it seemed to me that from the Framing onwards, the “freedom ... of the press” was seen as protecting the press as technology (which is to say the printing press and its technological heirs) and not as offering any protection for the press as industry.  Indeed, the Supreme Court and state courts have routinely made this quite explicit, long before Citizens United.  The evidence struck me as quite overwhelmingly in favor of the view that (to quote Justice Brennan) there is a “fundamental First Amendment principle that ‘[t]he inherent worth of ... speech in terms of its capacity for informing the public does not depend upon the identity of the source, whether corporation, association, union, or individual’” (a statement Justice Brennan made in specifically rejecting the suggestion that the institutional media get more First Amendment protection than other speakers).  Do you happen to have any contrary evidence, either about the Framing era or about the Supreme Court since the 1930s?   I’ve asked the list before, while my article was still being edited, for such contrary evidence, and didn’t see any responses.

                Beyond this, I would think that the logic of your CEO objection would apply to media corporations as well.  After all, CEOs of newspaper- and magazine-owning corporations – or the CEOs’ editor employees – are likewise “tak[ing] money out of their corporate treasuries to spend” on publishing editorials, on tailoring their coverage to support a particular candidate or ballot measure, and so on.

                As to your endorsing restrictions on private individuals’ spending money to speak about candidates – restrictions that would, as FECA did, outlaw people placing such ads in newspapers – I drew that from your 1993 Yale Law & Policy Review piece, http://www.nvri.org/library/cases/Public%20Education/BonYale.shtml, where you and your coauthor wrote, “we believe that Buckley was wrongly decided,” “The antidemocratic assumptions of the 1976 decision are so ingrained in our thinking about private money in politics that the case cannot be ignored[; i]n the following section, then, we will review Buckley and argue that a reconsideration of that ruling is long overdue,” “Buckley does not hold up,” “The very premise of Buckley, that money equals speech, is quite dubious,” and more.  It sounds to me, then, that you have favored reading the First Amendment to allow the government to “restrict[] the ability of private individuals to spend their own money to speak about candidates.”  Or am I missing something?

                Eugene


From: Jamin Raskin [mailto:raskin at wcl.american.edu]
Sent: Tuesday, December 20, 2011 12:41 PM
To: Volokh, Eugene; law-election at uci.edu
Subject: RE: [EL] ELB News and Commentary 12/20/11

                Eugene--I can’t imagine that anyone is interested in rehearsing these arguments for the umpteenth time on the listserv (I was just making a “point of personal privilege,” as we say), but here goes: (1) the First Amendment protects the “freedom . . . of the press,” which is why, yes, the New York Times and Wall Street Journal and National Review and the Nation have the right to endorse candidates for office, but it does not follow that their publishers may take money out of their corporate treasuries to spend on behalf of political campaigns or to give directly to candidates (which, of course, I see as the inescapable logic of your argument, no?), much less that the CEOs of McDonald’s or BP or AIG or  Massey Coal should enjoy such “free speech” rights to spend other people’s money.   (2) I have never favored “restricting the ability of private individuals to spend their own money to speak about candidates,” so you do misread me there.  I strongly favor voluntary public financing as a way to replace what I’ve called our “wealth primary”  and I have repeatedly voted for public financing as a senator in Maryland.  I have lots of disagreement with the Court’s First Amendment doctrine but it almost all has to do with the Court trampling the free speech and political association rights of citizens, including third party candidates who seek to participate in government-run debates or to have an equal place on the ballot, workers who seek to organize in the workplace, public employees who don’t want to be disciplined for taking political positions, students who seek to express themselves at school, and so on.  So, no, I don’t know what other “restrictions on speech” you imagine, but I do not favor them. . .yours, Jamie

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, December 20, 2011 2:42 PM
To: law-election at uci.edu
Subject: Re: [EL] ELB News and Commentary 12/20/11

                But, Jamie, you don’t just support restricting the ability of nonmedia business corporations to speak about candidates using their money.  You also use arguments that would equally apply to media business corporations’ speech about candidates using the corporations’ money (since “private for-profit corporations do not enjoy the political free speech rights of the people”).  And, unless I misread your scholarship, you would support restricting the ability of private individuals to spend their own money to speak about candidates, so that buying a newspaper ad to express one’s views could be made a crime (as would be the case if Buckley were reversed), right?

                Now of course there are perfectly plausible arguments in favor of such views, though I don’t agree with those arguments.  And there’s nothing wrong with the winner of the ACLU Edgerton award taking such a view, though I take it the ACLU (at least the national ACLU) has disagreed with this view.  It just seems to me that your disagreement with the Court’s First Amendment doctrine, and your willingness to see restrictions on speech, go considerably beyond your views on Citizens United, no?

                Eugene

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Jamin Raskin
Sent: Tuesday, December 20, 2011 11:10 AM
To: Steve Hoersting; Rick Hasen
Cc: law-election at UCI.EDU
Subject: Re: [EL] ELB News and Commentary 12/20/11

Friends--I’m not quite sure how I got dragged into this particular skirmish, but I can’t let stand in cyberspace the unprovoked and misleading cheap shot that I intend to “alter[] the First Amendment.”   Having just received the 2011 Henry Edgerton Civil Liberties Award from the ACLU of the Nation’s Capital and fought joyfully for the free speech rights of everyone from pro-life picketers to Quaker peace activists and environmentalists to right-winger Ralph Forbes to Ross Perot and the SEIU to Ralph Nader and high school students facing censorship, I will yield to none of today’s self-righteous crusaders for corporate political power who have convinced themselves that they are civil libertarians, including Steve Hoersting, in my championship of First Amendment rights for all.  (If Steve would like to compare his record of First Amendment advocacy and his position on essential free speech issues with mine,  I would be only too delighted to engage.)  Of course, I absolutely reject the Supreme Court’s 5-4 ruling that CEO’s have a First Amendment right to take money out of corporate treasuries to spend on political advocacy to promote politicians who will enrich the corporate bottom line (the only kind of political spending consistent with corporate law), and I absolutely favor a constitutional amendment to restore two centuries of understanding that private for-profit corporations do not enjoy the political free speech rights of the people.  But it was the five justices who reached out to decide a question not before them in Citizens United who altered the First Amendment--not me--and they gave no individual citizen a political right to do anything with his or her own money that he or she could not already do.  In any event, I look forward to  seeing Steve at future ACLU conferences as we work on issues of common interest like strengthening the free speech rights of public school students, stopping the flag desecration amendment to the Constitution,  and defending the separation of church and state against people like New Gingrich who want federal marshals to haul federal judges in before Congress to account for strong First Amendment decisions like the Ninth circuit decision in Elk Grove v. Newdow (2002).    I hope this sets the record straight and wish happy holidays to all.  --Jamie
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