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

[Paul Lehto]

On Thu, Dec 22, 2011 at 6:25 PM, 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.
>

I am focusing on the aspect of [political party] associational rights under
the First Amendment that allows parties to limit their membership, thus
limiting who may be heard at the party conventions.  Similarly, if we apply
this "background legal principle" to the question of *the scope* of
"identity of the speaker" issues, because We the People are the ultimate
and sovereign "political association", we too have the right to reasonably
limit who may be heard within our primary and general elections.

You recognized earlier that background legal principles do come in to limit
the scope of the principle regarding the irrelevance of the identity of the
speaker.  I suggested that another, or a stronger, background principle to
use in this First Amendment context (than the one you suggested to support
limits on governmental speakers) would be the clearly established rights of
associations like political parties to limit their membership.  (Obviously,
as applied to We the People, there are also limits on the ability to
disfranchise natural persons, but no limits on disfranchising artificial
persons, nor for that matter any authority allowing them to be
enfranchised.)

 The Court in *NY Board of Elections v. Lopez-Torres* noted that the
associational rights of political party associations under the First
Amendment are not unlimited, but are circumscribed, for example, by both
ballot requirements and by any state legislative determinations of what's
necessary to give primary candidates a "fair shot".  On this last question
of a "fair shot", the Court in its holding declined to declare a
constitutional right to such a "fair shot", but the 8 judge opinion
authored by Justice Scalia and focused solely on First Amendment claims
also stated: "What constitutes a “fair shot” is a reasonable enough
question *for legislative* judgment, which we will accept so long as it
does not *too much* infringe upon the party’s associational rights."
(emphasis added)  Thus, some, but not too much, infringement on an
association's right to speak would presumably be tolerable.

By analogy, however, I am saying "We the People" are in the position of the
ultimate association, and the question is whether our "members", or those
wishing to influence our deliberations via primaries or generals, have an
unlimited right to speak to or at us.   On this question, applying
Lopez-Torres by analogy, corporations as non-members do not even have the
barest right to a fair shot -- they can be excluded entirely just as
non-Democrats can be excluded from the Democratic convention.

Consequently, presuming we applied the background legal principle of the
rights of associations to exclude non-members of We the People, and thus
applied it only to non-voting non-humans, nothing in the First Amendment
would guarantee non-voting non-"member" corporations a "fair shot" in our
elections, and at best granting a "fair shot" would be a matter of state
legislative grace, but only so long as such state legislative actions did
not infringe "too much" upon the associational rights of We the People.

Applying Lopez-Torres as a background legal principle applicable to We the
People would not only reverse Citizens United, it would radically shift the
terrain of debatable questions to whether corporations had any right or
standing whatsoever to participate in our elections absent legislative
grace authorization, and that legislative grace, even if granted, must not
infringe "too much" on the associational rights of We the People.   I.e. We
the People can kick foreigners and corporations out of our processes or
allow them as we wish, but we can not disfranchise or limit our own
People.

Corporations may be "persons" for some limited purposes, but they are
clearly not "the People" or any part thereof.

Paul Lehto, J.D.



> 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>
> 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.
> snip]
>
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