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

[Paul Lehto]

On Thu, Dec 22, 2011 at 10:43 AM, Volokh, Eugene <VOLOKH at law.ucla.edu>wrote:

>                 One thing I do agree on is that categorical statements
> that the identity of the speaker is categorically irrelevant are in some
> measure overstatements.  Justice Brennan’s point that 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’” is
> accurate so far as the examples it gives goes.  But *indeed background
> legal principles, such as that the government may control its own speech by
> restricting the speech of its subordinate entities, or for that matter that
> the government has extra power to control the speech of prisoners or
> military members, do impose a limit on the most general articulation of the
> statement*.  (Note that I quoted Justice Brennan’s statement for the
> proposition that the law may not distinguish speakers based on whether they
> are the institutional press.)
>

Here is where the dialog gets most interesting.  Eugene has quoted Justice
Brennan for a First Amendment principle of the irrelevance of the identity
of the speaker, but notes that this First Amendment principle, sufficiently
powerful to control the outcome of Citizens United, is itself subject to *
limitation* by "*background legal principles*, such as that the government
may control its own speech by restricting the speech of subordinate
entities..."

Now where do these "background legal principles" of such power come from?
It seems to me that whoever operates the security guard operation at the
door that lets these "background legal principles" in to modify the scope
of otherwise binding constitutional principles or holdings is a person with
quite a lot of power.

I tend to agree that such background legal principles do exist and operate
in much the fashion that Eugene suggests, but it seems that perhaps one of
the biggest differences between those supporting and those opposed to
Citizens United are the differences in the background legal principles that
they bring to bear on the question, consciously or unconsciously.

For example, I would consider much of what Rick Hasen calls the "Democracy
Canon" to be in this class of principles: The Democracy Canon is often more
than mere canons of construction, but can sometimes be properly seen as
having almost super-constitutional status in some sense, in that, just like
the principle that an entity may control its subordinates that Eugene cites
above, these principles come in and have a powerful effect on the scope and
content of constitutional doctrine.  These background legal principles are
sometimes traceable to dicta in published cases, maybe occasional holdings
of cases, but more often than not they are fundamental principles that
stand to reason, in the context of democracy.  In and of themselves, these
principles are neither statutes nor the words of the constitution, yet they
have powerful effects on constitutional law nevertheless.

If we but add one background legal principle - endorsed, no less, by First
Amendment association cases - we can reach the opposite result in Citizens
United.  This principle would be derived from the First Amendment right of
association, and holds that We the People have a First Amendment right of
association that includes the right to disassociate from non-People --
non-voting and non-human entities like corporations.

It seems to me that the case for such a right of association as a
"background legal principle" is significantly stronger than the case for
"entities may control their subordinate's speech" in that the right of
association is more solidly grounded in the text and case law of First
Amendment doctrine, relative to the principle allowing control of the
speech of subordinate entities.

Just as Eugene limited the scope of the principle that "the identity of the
speaker is irrelevant" and admitted to limits on *governmental* speakers
being acceptable under the First Amendment through use of a "background
legal principle", I've used an arguably more important and powerful
"background legal principle" of the right of association of We the People
to come to the opposite result in Citizens United- disallowing non-voting
non-human corporate political "speech."  How do we decide which background
legal principles get admitted into this discussion?

Paul Lehto


-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026 (cell)
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