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

[Volokh, Eugene]

                Are there any cases that even suggest that the right of association - usually seen as a right of associations to be free of government regulation - is somehow a basis for restricting the rights of associations to speak?  I haven't seen any.  One can argue that there's a compelling government interest in restricting certain kinds of speech to promote a particular vision of democracy; I don't agree on that, but at least I can see the argument.  But unless I'm quite misunderstanding the argument below, it strikes me as quite unrelated to the "right of association" as the American legal system has understood the term.

                Also, let me mention again:  If this or any other principle does let the government "disallow[] non-voting non-human corporate political 'speech,'" then it would similarly let the government disallow the expression of political views by non-voting non-human corporate newspapers, magazines, and the like.

                Eugene

From: Paul Lehto [mailto:lehto.paul at gmail.com]
Sent: Thursday, December 22, 2011 12:09 PM
To: Volokh, Eugene
Cc: law-election at uci.edu
Subject: Re: [EL] ELB News and Commentary 12/20/11


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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