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

[Volokh, Eugene]

                There's nothing odd in seeing the People as a "super-association."  What's odd is to suggest that this somehow empowers them to suppress speech.  Imagine the Republican Party tried to get the government to pass a law that banned non-Republicans from speaking to Republicans - or spending money to speak to Republicans - who are preparing for the Republican parties, or a Baptist group tried to get a law that banned non-Baptists from speaking to Baptists who are deciding how to run their congregations, or the NRA tried to get a law that banned non-NRA-members from speaking to NRA members before an election.  No court, I think, would or should think that "associational rights," which are protections from governmental restriction, would actually empower the government to restrict speech of non-association-members.  Likewise, to build on the example given below, non-stockholders should be entirely free to spend as much as they want to put out ads trying to persuade a corporate CEO or a board; if Greenpeace, for instance, started buying ads aimed at swaying Exxon board members or officers or even shareholders, they are and should be entirely free to do so.  So even if one views the People as analogous in some ways to such associations, that offers no justification for speech restrictions.

                As to what sovereign monarchs can do, it is undoubtedly true that they can do very many things that are and should be denied to American governments by the Constitution.

Eugene

From: Paul Lehto [mailto:lehto.paul at gmail.com]
Sent: Thursday, December 22, 2011 7:46 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 8:43 PM, Volokh, Eugene <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>> wrote:
 [...] 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.

Say no more, if you truly find it "odd" to imagine We the People as really existing as a form of super-association (But how else, then, would you describe the sovereign source of all the power delegated from time to time via elections to our elected representatives?)

It is undoubtedly true that sovereign monarchs can control how long a given speaker speaks, and whether or not one person can drown out all the others by purchasing all the available (media) time.

So, how is it that the sovereign We the People, who stepped into the shoes of the monarchs around 1776,  are powerless to put any restriction at all on who can speak and for how long, when other sovereigns surely can?   This makes sense only if elections are purely theatrical distractions, but it seems they are far more serious than that.

Buying media time in elections is the substantial equivalent of addressing the kings and queens of this country.  No natural person should be unheard - they are all part of the governed whose consent is necessary.  But it does not follow that natural persons, already heard as they are in their natural capacity, can freely put on corporate masks in combination with others and then claim the additional right to speak in unlimited, unregulable fashion to We the People precisely when we are acting in our sovereign capacity in connection with elections.

Sure, government must be the servant of the People, not its master, telling them what to say or think.   But it is a very poor servant indeed who allows chaos to reign as the controlling principle, or who doesn't act to insure that the People can hear from various perspectives so they can be fully informed.

Any decent corporate advisor would give the corporation's CEO a balanced presentation of information.   Why, then, are We the People powerless to have any balance in the presentation whatsoever?  The goal of not having the government become the Master animates the First Amendment, but the government is also a very poor servant if it is powerless to create or preserve the basic prerequisites, even in minimal form, for an orderly debate and presentation of ideas to the People.  First Amendment doctrines have been -- out an appropriate fear of not having government be the Master -- distorted so that government can not be the Servant of the People either.

You have said that entities can control the speech of their subordinate entities.  Is not everything subordinate to We the People, if this is a democratic republic?  Then why can't there be any control of speech by the supreme entity, We the People?

Yet, you say that in elections, when we are acting as co-equal sovereigns in voting, We are powerless to impose any restrictions on who may speak, no matter how reasonable or limited.  Such a  principle, applied to any other organization, would result in chaos and destruction. (imagine everyone having a right to address a corporate CEO or board for as long as their money allows, regardless of whether they are a shareholder or not. Worse than a circus, because even a circus has some order to it.)

Paul Lehto, J.D.

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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