Re: [EL] FW: Floyd Abrams & Citzens United

why is it so difficult to differentiate between associations of people
who come together to promote a common ideology and entities which are
chartered by the state to engage in economic activity -- and endowed
with significant economic benefits -- unrelated to the ideologic
interests of their participants? FRANK ASKIN

Prof. Frank Askin
Distinguished Professor of Law       and Director
Constitutional Litigation Clinic
Rutgers Law School/Newark
(973) 353-5687>>> "Scarberry, Mark" <Mark.Scarberry@pepperdine.edu>
10/3/2010 12:00 PM >>>
And what about corporations like the Sierra Club (incorporated in 1892,
http://www.sierraclub.org/history/olney.aspx)
<http://www.sierraclub.org/history/olney.aspx> , the ACLU (a
501(c)(4) corporation, and the ACLU Foundation, its 501(c)(3) charitable
affiliate,
http://www.aclu.org/american-civil-liberties-union-and-aclu-foundation-what-difference
and http://www.aclupa.org/home/abouttheaclu/acluvsaclufoundation.htm),
the American Constitution Society
(https://secure.acslaw.org/joinnow/donation.php?type=Join), and the
Federalist Society (https://www.fed-soc.org/for_donors/donate.asp)? All
of them have limited liability, yet none of us would argue that they
lack free speech rights. 

Whether 501(c)(3) corporations like churches, the ACLU Foundation, the
ACS, and the FS ought to be able to support or oppose candidates for
office and ought to be able to engage in substantial lobbying without
losing their tax exempt status is a separate question. I've pointed out
that one religious leader (John Leland) supported Madison in two
critical elections, perhaps providing him the margin of victory. See
John Leland and James Madison: Religious Influence on the Ratification
of the Constitution and on the Proposal of the Bill of Rights, in 113
Penn State Law Review, http://ssrn.com/abstract=1262520. Of course, that
was before there was a US income tax or a common practice of
incorporating religious bodies.

Mark Scarberry
Pepperdine

________________________________

From: election-law-bounces@mailman.lls.edu on behalf of Volokh, Eugene
Sent: Sun 10/3/2010 7:06 AM
To: election-law@mailman.lls.edu 
Subject: Re: [EL] FW: Floyd Abrams & Citzens United

        (1)  That's a plausible argument for suspending limited
liability in libel lawsuits against newspapers -- someone we don't do,
and something that to my knowledge has not even been seriously
suggested.  But it's not a plausible argument for restricting speech
about candidates or ballot measures by corporations, where the worry is
*not* that the corporation won't be able to pay any damages for libel
and the like.  I quite doubt that when people worry about, say, Exxon
spending money on election-related speech, the concern is that it won't
be able to pay damages if the speech is libelous; I suspect Exxon has
enough in its treasury, or enough coverage in its insurance policies, to
take care of that.  In fact, the rich businesses that people most worry
about in campaign finance debates are actually *more* likely to be able
to be held "responsible for their abuses such as defamation" than the
typical individual, who is more likely to lack sufficient assets or
insurance to pay dam!
 ages.

        (2)  This also helps show how many of the creative arguments
for restricting corporate speech apply as strongly (or even more
strongly) to newspapers and other media that are organized as
corporations.  Again, if one is really serious about protecting libel
plaintiffs (as opposed to just using them as an excuse for restricting
nonlibelous speech by corporations), one would be much more worried
about libel in everyday stories by insufficiently capitalized media
corporations than about libel in political ads run by insufficiently
capitalized business corporations.

        Eugene

Paul Lehto writes: