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

Thu Dec 22 12:41:50 PST 2011

NYT v. Sullivan doesn't protect owners against garden variety tort and contract claims. For example, partners are liable for all of the debts of a partnership. If I own some NYT stock, I'm not personally liable for the claim of someone who was run over by a NYT delivery truck.

If media companies cannot use the corporate form, the media enterprise will be disadvantaged relative to other enterprises. Persons who engage in activities in the corporate form, even media corporations, do not have more protection under the First Amendment than other entities, but should exercise of the right to freedom of the press disable people from choosing to use a corporate form to engage in their enterprise? No.

Mark Scarberry
Pepperdine

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Jeff Hauser [jeffhauser at gmail.com]
Sent: Thursday, December 22, 2011 12:21 PM
To: Paul Lehto
Cc: Volokh, Eugene; law-election at uci.edu
Subject: Re: [EL] ELB News and Commentary 12/20/11

Don't cases like NYT v. Sullivan mean that the media, free from weak libel cases, could exist sans corporate form? The media of 1789 was entirely unincorporated, I believe. Many bloggers write without corporate form.

I have a lot of idiosyncratic, speak for no one but myself thoughts about the over-reliance on the corporate form and the absolution of liability (cf. the financial crisis, which was enabled in no small part by Wall Street shifting from a partnership to corporate model), but regardless of how far one takes this, i think we should resist the notion that "media outler" is inherently "corporate," or view the corporate form as an inherent right available to Americans and Russian ologarchs and Saudi sheikhs and foreign sovereign wealth funds.

On Thu, Dec 22, 2011 at 3:09 PM, Paul Lehto <lehto.paul at gmail.com<mailto:lehto.paul at gmail.com>> wrote:

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

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Paul R Lehto, J.D.
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