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

[Volokh, Eugene]

                Indeed, certain membership choices by political parties are protected from restriction by the government.  And membership choices by organizations other than political parties are even more protected from governmental restrictions - those organizations can often exclude members because they are Communists, or Republicans, or gays, or atheists, or non-residents of their local area, and so on.

                But it hardly follows from this that associations, public or private, may use government power to silence speakers that they dislike.  That "We the People" may form ourselves into autonomous organizations relatively free of government intrusion doesn't mean that we may use the government to stop others from speaking to some of us people.  That's why corporate newspapers, who can't vote and who can certainly be excluded from various associations, retain the right to speak about candidates.  That's why non-state-residents, who can't vote in the state, retain the right to speak about elections in that state.  That's why felons and minors retain the right to speak about elections even when they can't vote in that election.  Given that this is so, I see no basis for using this odd supposed analogy to private association rights as a justification for suppressing the speech of nonmedia business corporations and unions.

                Eugene

Paul Lehto writes:

On Thu, Dec 22, 2011 at 6:25 PM, Volokh, Eugene <VOLOKH at law.ucla.edu<mailto: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.

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