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

(1) Again, the notion that certain businesses have more rights than other speakers under the Free Press Clause is not supported by the original meaning of the text, nor by the Court�s precedents, which at least since the 1940s have made clear that the freedom of the press applies to anyone who uses press technologies. People who use press technologies as amateurs, or only occasionally, have the same rights as people who use them professionally and all the time.

(2) More broadly, corporations don�t literally do anything � only people do. Corporations don�t edit newspapers, or decide what to write about, or write newspaper articles or ad copy; people do. So again the same arguments being deployed to silence business corporations (and unions) would, if accepted, justify suppression of corporate-owned newspapers.

(3) Likewise, the fiduciary duty argument would apply to a wide range of speakers. Media corporations aren�t exempt from fiduciary duties. Likewise, employees of nonprofit corporations, or of partnerships, or unincorporated associations are not exempt from the duty of loyalty. And more practically, a reporter who�s writing for a newspaper is of course not free to write what he wants to write; that�s under control of his management (control which is supported by property law and contract law), which may well be corporate management.

(4) Finally, none of this, of course, is limited to speech about elections. Under this rationale, the government would be free to suppress all the speech of unions, since all of it is subject to the speaking employees� fiduciary obligations to the union. Likewise, it would be free to suppress all speech of corporations, or any subset of that speech, including viewpoint-based subsets (see, e.g., First National Bank of Boston v. Bellotti). It would be free to impose prior restraints on corporate communications, which it could then use to suppress criticisms of government policy. After all, if the First Amendment doesn�t apply to corporate speech, since corporations can�t speak

(5) I don�t primarily specialize in election law; I generally write about other portions of First Amendment law. Perhaps this is why I�m especially troubled by the arguments that I routinely see on this list � their advocates are of course suggesting them only because they�re trying to suppress corporate speech about elections, but taken seriously those arguments would demolish a huge range of constitutional protection that has been taken for granted about as long as modern First Amendment law has existed. (Recall that the first Supreme Court decision protecting corporate free speech, Grosjean, was decided five years about the first Supreme Court decisions protecting noncorporate free speech, Stromberg and Near.) And the obligatory denials of such broader impact strike me as entirely inconsistent with the clear underlying logic of the speech-restrictive theory.

Eugene

From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Daniel Abramson
Sent: Saturday, October 02, 2010 9:28 PM
To: Scarberry, Mark
Cc: Smith, Brad; election-law@mailman.lls.edu
Subject: Re: [EL] FW: Floyd Abrams & Citzens United

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

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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