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

[Jeff Hauser]

Eugene, are you arguing that there is a constitutional right to for
profit corporate legal status? If not, then can't states mandate that
for profit corporations only pursue non-political economic purposes?

On 12/22/11, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:
>                 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
>
>
> --
> Paul R Lehto, J.D.
> P.O. Box 1
> Ishpeming, MI  49849
> lehto.paul at gmail.com<mailto:lehto.paul at gmail.com>
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>
>
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>
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