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

[Volokh, Eugene]

	There certainly is no constitutional right to corporate legal status for business corporations, or corporate legal status for newspapers, or a personal tax exemption for veterans (Speiser v. Randall), or Corporation for Public Broadcasting funding (FCC v. League of Women Voters), or even the ability to send mail (the government may close the post office if it so wishes).  But it doesn't follow from this that the government can mandate that entities that get such a status promise to, in exchange, refrain from political speech (FCC v. League of Women Voters), refrain from Communist advocacy (Speiser), and so on.

	Eugene

> -----Original Message-----
> From: Jeff Hauser [mailto:jeffhauser at gmail.com]
> Sent: Thursday, December 22, 2011 3:51 PM
> To: Volokh, Eugene; law-election at UCI.EDU
> Subject: Re: [EL] ELB News and Commentary 12/20/11
> 
> 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>
> > 906-204-4026 (cell)
> >
> >
> >
> >
> >
> >
> 
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