[EL] Animals, androids, space aliens, ghosts or rocks
Schultz, David A.
dschultz at hamline.edu
Mon Sep 22 09:28:48 PDT 2014
No Brad, I asked you first so you answer first. I have never hidden from
my views and I have an entire book that articulates my position. I trust
you have read my book by now?
On Mon, Sep 22, 2014 at 11:23 AM, Smith, Brad <BSmith at law.capital.edu>
wrote:
> First, let me ask the opposite question:
>
> Is it your position that the legislature can place limits on any amount
> of speech by any entity or person? What lines would you draw? May a
> legislature prohibit Ken Burns' series on the Roosevelts on the grounds
> that it will build public support for the type of big government solutions
> that both TR and FDR favored (not because the legislature disagrees, to be
> clear, but because that makes it inherently "political," allowing extra
> influence to Mr. Burns and others, in part because of their access to
> money)?
>
> 1. In effect, regardless of whether something is a person, should the
> legislature be able to enact whatever rules it favors to limit speech that
> may tend to influence political views?
>
> 2. Is it your position that a person should never be able to keep his or
> her political activity private?
>
> Show me the courage of your convictions. If what you are really
> advocating is no clearly demarcated limits on what is regulated, then say
> so. Fess up!
>
> In other words, this is not, and should not be, a one way question.
>
> Now, my general answer to some of Jamie's questions:
>
> Strong arguments can be made (see e.g. Blumen) for limiting
> contributions by foreign nationals. Similarly, strong arguments can be made
> for limiting contributions by corporations. Strong arguments can be made
> for limiting expenditures by corporations. And by unions. And by college
> professors. Now, this is just me, but androids, rocks, animals and space
> aliens engaging in political speech just doesn't worry me. Anyone who is
> really concerned by that is, I think, off his rocker (that rocker's speech
> rights being another thing that doesn't concern me in the least). Arguments
> can also be made for sound time/place/manner restrictions. I believe in
> appropriate limits. The arguments made for limiting contributions by
> foreign nationals, for example, are quite different than the arguments for
> limiting speech by incorporated associations of U.S. citizens. The
> arguments for most time/place/manner restrictions (such as sound trucks in
> residential neighborhoods late at night) are quite different from the
> arguments for broad limits on campaign spending regardless of the time,
> place, and manner, and the arguments for the former often don't apply at
> all to the arguments for the latter. Although these are often difficult
> constitutional questions, they are not new, and it has long been
> recognized, even by ardent supporters of campaign regulation on the Court,
> that they can and probably ought to be treated differently.
>
> So if this is a rhetorical question, I'll pass. If this is a serious
> question, I'll do what I sometimes do with students in a variety of
> subjects - "you give this a little more thought, and get back to me with
> how you think the people you wish to address would respond. Then we can
> discuss it at length. That will help your learning a lot more than me
> giving the answer." (it also saves me time, but I don't usually say that!).
>
> *Bradley A. Smith*
>
> *Josiah H. Blackmore II/Shirley M. Nault*
>
> * Professor of Law*
>
> *Capital University Law School*
>
> *303 E. Broad St.*
>
> *Columbus, OH 43215*
>
> *614.236.6317 <614.236.6317>*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx
> <http://law.capital.edu/faculty/bios/bsmith.aspx>*
> ------------------------------
> *From:* law-election-bounces at department-lists.uci.edu [
> law-election-bounces at department-lists.uci.edu] on behalf of Schultz,
> David A. [dschultz at hamline.edu]
> *Sent:* Monday, September 22, 2014 11:59 AM
> *To:* Jamin Raskin
> *Cc:* Election Law
> *Subject:* Re: [EL] Animals, androids, space aliens, ghosts or rocks
>
> I second Professor Raskin's call for honesty here. My Constitution
> Day talk was all about the tortured and conceptually muddled constitutional
> examination of who or what is a person over time. But given Roland's
> comments they lead me to ask a few questions of those on this listserv who
> seem to support less restrictions or regulation of money in politics.
>
> 1. Should any entity or person that wants to donate or expend money
> for political purposes be able to do so in any amount they want? In
> effect, regardless of whether something is a person, should any entity be
> able to convert its entire economic resources into political donations or
> expenditures without limit?
>
> 2. Should any entity or person that wants to donate or expend money for
> political purposes be able to do so without having to disclose it?
>
> Okay folks, to paraphrase Justice Roberts's comments during orals over
> the constitutionality of the ACA, show me the courage of your convictions.
> If what you are really advocating is complete deregulation with no
> disclosure and no limits on who or what gives and how much, then say so.
> For people like Roland who seem to be both libertarian free marketers and
> so-called free speech absolutists, this is the logic of your position.
> Fess up.
>
> On Mon, Sep 22, 2014 at 9:59 AM, Jamin Raskin <raskin at wcl.american.edu>
> wrote:
>
>> “And the Citizens United decision had nothing to do with them being a
>> corporation. The First Amendment bars restrictions on speech and press, no
>> matter who or what the speaker or publisher might be. There is no
>> specification that it s only the speech or publication by human
>> individuals. It could be by animals, androids, space aliens, ghosts, or
>> rocks.”
>>
>> If I read this post correctly, Jon Roland is saying that not only do
>> domestic corporations, animals, androids, space aliens, ghosts, and rocks
>> have an absolute right to spend money promoting or maligning candidates in
>> our federal political campaigns, but so also do: foreign corporations,
>> foreign governments and spy agencies, state governments and municipal
>> corporations and counties, federal agencies like HUD, the Department of
>> Labor and the CIA, narco-traffickers and drug money launderers, three-year
>> olds and newborns, and churches and charities and other entities holding
>> tax-exempt status, to name just a few entities and human beings whose money
>> has been kept at bay by the law.
>>
>> Is your position, as suggested by your admirably candid post, really that
>> anything goes in campaign spending, “no matter who or what the speaker or
>> publisher might be,” because it all adds to the overall quantity of
>> speech? (If not, why not?)
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> *From:* law-election-bounces at department-lists.uci.edu [mailto:
>> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Jon Roland
>> *Sent:* Monday, September 22, 2014 10:08 AM
>> *To:* Sal Peralta
>> *Cc:* Election Law
>> *Subject:* Re: [EL] The apocalypse
>>
>>
>>
>> Money is mostly not speech. It is mostly press.
>>
>> Campaign donations made to support marketing of a candidate is "press"
>> rather than "speech" in the strict use of those words. The donor is
>> contracting with the campaign to publish something he wants published, even
>> if he does not specify the exact message. He is delegating the composition
>> of the message to the campaign. Campaigns do use part of their donations
>> for other things, like transportation and salaries of campaign workers, but
>> almost all of that is in support of marketing. That is what makes it a
>> matter of the First Amendment.
>>
>> Jurisprudence got off on a track of decisions about "speech" and to
>> follow precedent, has tried to cram everything into the "speech"
>> pigeonhole, but this is really "press", that is, publication. The Citizens
>> United decision was about press, because publishing is what Citizens United
>> was doing by putting out a movie.
>>
>> Voters have just as much a right to choose what marketing messages they
>> will heed as which candidate to vote for. If they heed the wrong messages,
>> that is their choice, it is not ours to try to compel that choice.
>>
>> And the Citizens United decision had nothing to do with them being a
>> corporation. The First Amendment bars restrictions on speech and press, no
>> matter who or what the speaker or publisher might be. There is no
>> specification that it s only the speech or publication by human
>> individuals. It could be by animals, androids, space aliens, ghosts, or
>> rocks.
>>
>>
>>
>> On 09/22/2014 08:51 AM, Sal Peralta wrote:
>>
>> if you would agree to use the word "money" instead of "speech"
>>
>>
>>
>>
>> --
>>
>>
>>
>> ----------------------------------------------------------
>>
>> Constitution Society http://constitution.org
>>
>> 13359 N Hwy 183 #406-144 twitter.com/lex_rex
>>
>> Austin, TX 78750 512/299-5001 jon.roland at constitution.org
>>
>> ----------------------------------------------------------
>>
>>
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>>
>
>
>
> --
> David Schultz, Professor
> Editor, Journal of Public Affairs Education (JPAE)
> Hamline University
> Department of Political Science
> 1536 Hewitt Ave
> MS B 1805
> St. Paul, Minnesota 55104
> 651.523.2858 (voice)
> 651.523.3170 (fax)
> http://davidschultz.efoliomn.com/
> http://works.bepress.com/david_schultz/
> http://schultzstake.blogspot.com/
> Twitter: @ProfDSchultz
> My latest book: Election Law and Democratic Theory, Ashgate Publishing
> http://www.ashgate.com/isbn/9780754675433
> FacultyRow SuperProfessor, 2012, 2013, 2014
>
--
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3170 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter: @ProfDSchultz
My latest book: Election Law and Democratic Theory, Ashgate Publishing
http://www.ashgate.com/isbn/9780754675433
FacultyRow SuperProfessor, 2012, 2013, 2014
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