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

Thu Dec 22 12:54:24 PST 2011

NYT v. Sullivan takes care of a lot of the special reasons we might want to
limit the liability of media owners. I'd imagine a conscientious media
partnership that likes to play in politics could, you know, buy insurance
for tort or contract claims.

I'm not necessarily making a proposal here, but i do think greater
interrogation of the presumption that the for-profit corporate form is a
necessity of all aspects of modern life is warranted in election law as
well as elsewhere.

On Thu, Dec 22, 2011 at 3:41 PM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:

>  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> wrote:
>
>>
>>
>>  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)
>>
>>
>>
>>
>>
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20111222/4ba81343/attachment.html>