Subject: Re: [EL] FW: Floyd Abrams & Citzens United
From: Daniel Abramson
Date: 10/2/2010, 9:27 PM
To: "Scarberry, Mark" <Mark.Scarberry@pepperdine.edu>
CC: "Smith, Brad" <BSmith@law.capital.edu>, "election-law@mailman.lls.edu" <election-law@mailman.lls.edu>

Mark,

I think the best way to think about this is to acknowledge the obvious truth that corporations don't speak - only people do.  Sometimes they speak as individuals, sometimes through partnerships, and sometimes through corporations.  (My intentionally absurd point about slavery was simply that the Constitution does not always specify when it is referring to natural persons, even when such an interpretation is obvious from the context.)

You state below that: "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."  This, of course, is the critical issue.  My response is that I am willing to provide more freedom for the press than other corporations.  I think this is supported by the 1st Amendment and seems fairly "principled."  But it doesn't address the flip side of your point - what principled reason exists to deny free speech rights to non-media corporations?

I would argue that, in the case of for-profit, and particularly publicly traded, corporations, the reason to deny free speech rights to those who speak on their behalf is the legal restrictions on these persons.  Unlike an individual or a partnership, a person speaking on behalf of a corporation is legally obligated to speak in a manner that maximizes profits for the corporation and its shareholders.  To speak in a way that would be detrimental to the profits of the shareholders would be a breach of their fiduciary duty.  In other words, individuals speaking through the corporate form do not have free speech rights.  An corporate officer who openly advocated for a political position that damaged the corporation, and used corporate funds to do so, would (rightly) be subject to a shareholder derivative suit.  In other words, these persons are already banned from speaking "freely."  As such, I find it reasonable to keep their speech out of the political arena and limited to areas in which their compulsory speech is appropriate, such as commerce.

Incidentally, I don't think this is a novel position.  Most States have long prohibited corporations from offering legal or medical advice.  Is this a restriction on corporate speech?  Possibly, but it seems entirely appropriate because a person speaking on behalf of a corporation would be required to offer legal or medical advice that maximized profits for the corporation.  We have eliminated this conflict by banning corporations from speaking in these areas. 

Daniel 


On Sat, Oct 2, 2010 at 8:50 PM, 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
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

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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