I'm not sure that the Framers thought much about what speech/press restrictions may properly be imposed on corporations, especially corporations chartered under a general incorporation statute (which I think was some decades in the future) rather than under special legislative acts; though I'm of course open to persuasion on that point.
But my point is not that we have to stick to the original meaning of the press clause -- we could, for instance, focus instead on precedent rather than original meaning, though that would likewise mean that the press clause protects a technology and a special industry. Or we could consider arguments that, as a moral or political theory matter, a particular industry should have special protection that is denied to others (though I'm skeptical about such arguments). It's just that when people say "the First Amendment provides special protection to entities called 'the press,'" that argument suggests that the text has already made this commitment.
My point is that the text does not make this commitment, since "the press" has two possible meanings. And since I generally think that sound textual arguments (about to sound precedential or changing-circumstances arguments) require attention to the text in light of original meaning -- which is why, for instance, we interpret the ambiguous "common law" in the Seventh Amendment civil jury trial clause to mean "cases of the sort that used to be litigated in the common-law courts" rather than "nonstatutory law" or "Anglo-American, rather than European, law" -- I think the text should be understood as protecting the technology and the industry. But again if one wants to argue that for various reasons the Court should adopt a different approach, that could be fine, so long as the argument doesn't rest on historically unsound assertions about the text.
Eugene
-----Original Message-----
From: Winkler, Adam
Sent: Monday, October 04, 2010 8:53 AM
To: Volokh, Eugene; election-law@mailman.lls.edu
Subject: RE: [EL] FW: Floyd Abrams & Citzens United
The problem stems from the fact that the Court has interpreted the speech
clause to protect corporations, which the Framers themselves thought could
be subject to an enormous number of state-imposed restrictions, including
limits on political activity. (Business people who lobbied for new charters
and expanded powers for existing charters were seen as a potent form of
corruption and my understanding is that early charters often included limits
on lobbying.) Sticking to the original meaning of the press clause might
make more sense if we stuck to the original meaning of the speech clause.
Having departed radically from the latter, I'm not sure why we should be
stuck with the original meaning of the former.
Adam Winkler
Professor of Law
UCLA School of Law
405 Hilgard Avenue
Los Angeles, CA 90095
Telephone: 310-463-2447
Twitter: @adamwinkler
Website: http://bit.ly/aFRyZY
-----Original Message-----
From: election-law-bounces@mailman.lls.edu [mailto:election-law-
bounces@mailman.lls.edu] On Behalf Of Volokh, Eugene
Sent: Monday, October 04, 2010 8:04 AM
To: election-law@mailman.lls.edu
Subject: Re: [EL] FW: Floyd Abrams & Citzens United
Let me mention it again, if I may: "The press" could mean either "the
technology of mass communication" or "entities that engage full-time in
publishing newspapers, magazines, and the like." All the original meaning
evidence that I have seen points to the "technology" meaning, under which
no industry has any special rights beyond those possessed by other
individuals and organizations. And the Court has taken this view since 1938,
which was just seven years after the Court first used the Free Press Clause to
strike down government action.
If there is any evidence that the Framers thought that newspaper
publishers were more protected than, say, pamphleteers, part-time book
authors (such as Paine or Jefferson), or part-time commentators for
newspapers (such as Madison, Hamilton, or Jay), I'd love to see it. I've
looked, and couldn't find any -- though I have found a good deal of evidence
to the contrary, supporting the view that the freedom of the press extends
to users of the press regardless of whether they are full-time or occasional.
Eugene
-----Original Message-----
From: election-law-bounces@mailman.lls.edu [mailto:election-law-
bounces@mailman.lls.edu] On Behalf Of Frank Askin
Sent: Monday, October 04, 2010 7:17 AM
To: election-law@mailman.lls.edu; Mark.Scarberry@pepperdine.edu
Subject: Re: [EL] FW: Floyd Abrams & Citzens United
Last time I looked, entities known as "the press" had special
protections under the First Amendment - and that did not extend to their
parents - such as GE. 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>
10/4/2010 12:46 AM >>>
Does the NY Times corporation consist of persons who have come together
to promote a common ideology? What about Disney or GE (owners of TV
networks)? News Corp.? CNN (run by Turner Broadcasting System, which is
owned by TimeWarner)? Don't those corporations obtain substantial
economic benefits from their incorporation? And don't the shareholders
of those corporations expect that the economic activities of their
corporations will provide them dividends or capital appreciation?
What about ad agencies? Can they be prohibited from producing ads that
use sex appeal to sell products because they are corporations with
primarily a pecuniary interest in their expressive activities? (I
realize that commercial speech is not entitled to as high a level of
protection under the 1st Am as noncommercial speech, but it is still
within the 1st Am.)
Mark Scarberry
Pepperdine
________________________________
From: Frank Askin [mailto:faskin@kinoy.rutgers.edu]
Sent: Sun 10/3/2010 9:16 PM
To: election-law@mailman.lls.edu; Scarberry, Mark
Subject: 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:
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.
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