State constitutions from all time periods in our country's history
provide for free speech, but then commonly add that each person is
"being responsible for the abuse of the right."
While individuals in partnerships and associations remain responsible
for their abuses such as defamation (because each partner or member
being liable individually) this nexus of rights and liability called
for in many state constitutions does not fit the corporation with its
veil of limited liability because the shareholders are not responsible
for the abuse of the right, if any.
In the corporate context, they're trying to have rights without
fulfilling the attendant duties that everyone else has. Thus, it's
not just that corporations are "persons" for First Amendment political
purposes -- it's that they are a superior class of legal "person"
specifically with respect to speech.
On 10/2/10, Scarberry, Mark <Mark.Scarberry@pepperdine.edu> wrote:
Slavery has always been understood as the holding of natural persons (flesh
and blood human beings) in a state of involuntary servitude. Sometimes
groups were enslaved; it was still slavery, and the terrorists' holding of
the employees of a corporation hostage (remember the 1988 film Die Hard?)
would of course ripen into slavery were the hostages held in involuntary
servitude.
When groups of persons speak, it's still speech. Early American newspapers
were not one man shows, as I understand it. Madison, Hamilton, and Jay
together wrote the Federalist. Choirs sing songs, sometimes songs about
delivery from oppression (such as racial discrimination).
What if a partnership, like a law partnership or any other kind of business
partnership, decides to engage in speech. Should the right of the
partnership to do so depend on whether the jurisdiction accepts the entity
theory of partnerships, in which the partnership is treated as an non-human
entity separate from the partners, rather than the view that the partnership
is simply a relationship among human beings who are the partners? Under the
most current theory of corporations, the corporation is essentially a nexus
of contracts clustering around a group of persons, the board of directors.
Should the right of a corporation to speak depend on whether we accept that
theory?
But the most important point here is that persons often join together in
corporate form to engage in speech. There is no principled way to give
Disney Corporation or GE the right to engage in free speech (through their
ABC and NBC networks) but not to allow other corporations to do so. And why
shouldn't a group of workers who join together voluntarily to form a union
be entitled to speak as a group?
Disclosure is another matter. I find it helpful to know that campaign ads
are sponsored by, on the one hand, public employees' unions, or, on the
other, business interests.
Mark Scarberry
Pepperdine
________________________________
From: election-law-bounces@mailman.lls.edu on behalf of Gaddie, Ronald K.
Sent: Sat 10/2/2010 7:39 PM
To: Smith, Brad; Daniel Abramson
Cc: election-law@mailman.lls.edu
Subject: Re: [EL] FW: Floyd Abrams & Citzens United
By the logic at work in this absurd and entertaining exercise, as near as I
can tell, buying and selling shares of corporations should violate the 13th
Amendment.
Ronald Keith Gaddie
Professor of Political Science
Editor, Social Science Quarterly
The University of Oklahoma
455 West Lindsey Street, Room 222
Norman, OK 73019-2001
Phone 405-325-4989
Fax 405-325-0718
E-mail: rkgaddie@ou.edu
http://faculty-staff.ou.edu/G/Ronald.K.Gaddie-1
http://socialsciencequarterly.org
________________________________
From: election-law-bounces@mailman.lls.edu
[election-law-bounces@mailman.lls.edu] on behalf of Smith, Brad
[BSmith@law.capital.edu]
Sent: Saturday, October 02, 2010 8:30 PM
To: Daniel Abramson
Cc: election-law@mailman.lls.edu
Subject: Re: [EL] FW: Floyd Abrams & Citzens United
Hold it - corporations aren't subject to the 13th amendment? Are you saying
that a corporation has a right to enslave people? Or are you saying that
people can enslave corporate shareholders?
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp
________________________________
From: Daniel Abramson [mailto:danielkabramson@gmail.com]
Sent: Sat 10/2/2010 7:06 PM
To: JBoppjr@aol.com
Cc: TP@capdale.com; Smith, Brad; election-law@mailman.lls.edu
Subject: Re: [EL] FW: Floyd Abrams & Citzens United
Jim,
I don't think this can be the entire analysis. Certainly there might there
be circumstances in which it can be inferred that the Constitution is
referring to natural persons, even where not explicitly stated. Does the
13th Amendment's prohibition of slavery similarly extend to corporations?
Obviously not, even though the language fails to identify slavery "of
persons."
"Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction."
Of course, we know from the meaning of the word "slavery" that the drafters
of the amendment were referring to natural people. But nothing in the plain
language of the 13th Amendment includes this limitation. And given that
only human beings are capable of speech, is it unreasonable to assume that
the drafters of the 1st Amendment also intended to refer only to human
beings?
Daniel
On Sat, Oct 2, 2010 at 3:38 PM, <JBoppjr@aol.com> wrote:
In constitutional interpretation, one starts with the text of the
Constitution. Since the First Amendment is written to protect speech, etc,
without reference to the identity of the speaker then speech is protected
without reference to the identity of the speaker. If the intent was only to
protect speech by persons, it could have been written that way, ie,
"Congress shall make no law abridging the freedom of speech by persons." It
does not say that so it is not so limited. Jim Bopp
In a message dated 10/2/2010 6:31:10 P.M. Eastern Daylight Time,
TP@Capdale.com writes:
I have YET to see an originalist textual argument that the drafters of the
First Amendment were speaking about corporations--although I have seen a lot
of writing about how the Founders were not fans of corporations--AND thought
they were strictly limited by their government charters to certain economic
activities. Could anyone point me to writings showing that the Founders (as
opposed to much later Courts) intended to cover corporations and not just
persons?
Trevor Potter
________________________________
From: election-law-bounces@mailman.lls.edu on behalf of JBoppjr@aol.com
Sent: Sat 10/2/2010 6:08 PM
To: BSmith@law.capital.edu; election-law@mailman.lls.edu
Subject: Re: [EL] FW: Floyd Abrams & Citzens United
Now that Dr. Bozian has found out that he is completely wrong on what the
First Amendment says, I assume he will now concede that he is in error and
will withdraw his sharp, and now acknowledged unjustified, criticism of Mr.
Abrams. Jim Bopp
In a message dated 10/2/2010 1:52:53 P.M. Eastern Daylight Time,
BSmith@law.capital.edu writes:
But if corporations aren't people, then physically they can't speak,
so you will have no worries. They will never, with or without Citizens
United, affect an election.
But maybe they can speak like a robot! But would programming a robot
to speak be protected speech? I assume so. Why? - because a person had to
program it. Indeed, we really already have mechanical speech, as when
recordings play a message over and over, or as when a person posts a
political video on YouTube that others can then watch. I presume that a
deaf/mute person would be protected in programming a robot to make audible
political statements on his behalf that, he feels, would be an effective way
for him to communicate.
Of course, the reality is that corporations are made up of people, and
people have a right to associate, and associations of people have a right to
speak. And corporate personhood does not stem from a decision that never
examined the issue. I know that's Tom Hartmann's view, but Hartmann is
neither a lawyer nor an historian, and it's just not true. The idea of
corporate personhood has existed since the nation's founding, and is well
grounded in legal theory, history, and precedent.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp
________________________________
From: election-law-bounces@mailman.lls.edu on behalf of Richard C.
Bozian
Sent: Sat 10/2/2010 12:38 PM
To: election-law@mailman.lls.edu
Subject: [EL] FW: Floyd Abrams & Citzens United
________________________________
Floyd Abrams has written a masterful exposition of the Citizens United
decision. It is a classical repetition of the fallacy of Xeno's Paradox
which had the hare never catching the tortoise. One can justify anything by
starting with a faulty assumption.
He justifies the decision on the basis of the 1st Amendment. The 1st
amendment refers to freedom of speech of "the people". Corporations are not
people anymore than is a robot performing human feats. Corporate personhood
is a legal fiction that emerged from an interpretation of a court's
deliberation that never examined or even considered corporate personhood.
I am impressed only with his craftsmanship.
Richard C. Bozian M.D. F.A.C.P.
Professor Emeritus of Medicne
University of Cincinnati.
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