As Eugene Volokh has noted, it does not seem that there is any special protection under the press clause for "press entities" but rather protection for anyone who engages in press activities. A corporation that creates and pays for the distribution of political ads would seem to be engaging in press activities.
Further, the theory that NBC has 1st Amendment rights, but that its corporate parent does not, would seem to constitutionalize principles of corporation law and even to somehow guarantee the independence of the "press entity" subsidiary. Otherwise, the subsidiary could be controlled in its speech by the parent, which as a result would exercise the subsidiary's 1st Am. rights.
I thought one of the problems with Citizens United was supposed to be that it allowed the corporation rather than the shareholders to decide how resources should be used for political speech. But here it seems we have a principle of independence of the corporation (at least a press corporation) from its shareholders. Note that the human beings who indirectly own NBC by owning shares in its corporate parent can only influence its speech by influencing the parent; if the parent is not permitted to influence NBC, then the human beings who own the resources are cut out of the process.
Mark Scarberry
Pepperdine Univ. School of Law
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"
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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