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 by the freedom of the press 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 would like to see it; but from what I've seen, I doubt that it exists.
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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