It is unlikely the Framers had considered the possibility of radio, television, cable or internet communications when protecting the "press," yet we comfortably accept that First Amendment protections apply to those means of communication.  Similarly, the Framers are unlikely to have considered that any person, with a modest sum could create a corporation, with the sovereign's role basically limited to checking for conflicting names and that the amount on the check or charge is correct.  (The Framers' attitudes to corporations should not be viewed in isolation, or in disregard of the monopolistic character of charters granted by the sovereigns of the day.) 

Attempts to limit protection to "media" corporations do not work well with operating "media" corporations as subsidiaries in larger structures, or the commonplace expression of corporate power to "engage in all lawful business ..."  At what point does a corporation which publishes or broadcasts cease to be a "media" corporation, if it has other activities?  Does the protection of the "press" extend to a corporate parent of NBC, CNN or a newspaper?




John J. White, Jr.
white@lfa-law.com
(425) 822-9281 ext. 321

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-----Original Message-----
From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Volokh, Eugene
Sent: Saturday, October 02, 2010 4:35 PM
To: election-law@mailman.lls.edu
Subject: Re: [EL] FW: Floyd Abrams & Citzens United

        Whenever someone argues that the pro-speech-regulation theories would equally apply to the media, and would allow the government to suppress speech in newspapers, books, and the like, the response is generally "Of course not" -- no-one (perhaps with the exception of a very few people) is claiming that such restrictions on the media would be constitutional.  Yet the next day or the next week up comes yet another argument that, if accepted, would do precisely what the pro-speech-regulation advocates say isn't happening: allow the government to suppress speech in newspapers, books, and the like.

        We see this perfectly here.  There aren't any originalist or textualist arguments that the drafters of the First Amendment were speaking about media corporations, or unions, or MCFL corporations, either.  So if the argument is that because the drafters weren't talking about business corporations, business corporations' speech is unprotected, then likewise media corporations' speech, unions' speech, and various nonprofit advocacy groups' speech would be unprotected as well.

        It seems to me that protecting speech and press rights includes within it the speech and press rights of people who pool their resources together, including using forms that hadn't been invented at the time (the corporation operating under a general incorporation statute), or that had been invented but wasn't being used enough for the Framers to focus on it.  (Recall that the Framers weren't even fully settled on whether the First Amendment did more than barring prior restraints; they just didn't spend much time focusing on the exact meaning of the freedom of speech or of the press.)  That is a perfectly good explanation for why media corporations should have First Amendment rights.  But that applies equally to nonmedia corporations as well.

        Eugene

> -----Original Message-----
> From: election-law-bounces@mailman.lls.edu [mailto:election-law-
> bounces@mailman.lls.edu] On Behalf Of Trevor Potter
> Sent: Saturday, October 02, 2010 3:28 PM
> To: JBoppjr@aol.com; BSmith@law.capital.edu;
> election-law@mailman.lls.edu
> Subject: Re: [EL] FW: Floyd Abrams & Citzens United
>
>
> 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

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