[EL] "The press" as a technology, not an industry

Actually, my review of cases from the early Republic uncovered no cases in which the “freedom of the press” was seen as giving a particular industry – the media – extra protections. In fact, I saw cases saying the exact opposite. Thus, in Dexter v. Spear (1825), Justice Story wrote (riding circuit) that, “The liberty of speech and the liberty of the press do not authorize malicious and injurious defamation. There can be no right in printers, any more than in other persons, to do wrong.” Similarly, Root v. King (an 1827 New York case) stated that, under the state constitution’s “liberty of the press,” newspaper editors have no “other rights than such as are common to all.”

And, as I mentioned, this makes perfect sense given just how the Constitution speaks of “the press” – in “freedom of speech, or of the press.” The freedom of speech is a freedom of all people to engage in an activity (speaking). It seems to me much more plausible to infer that the freedom of the press is likewise a freedom of all people to engage in an activity (using press technology). And this is especially so given that influential sources of the era, such as Blackstone, spoke of the freedom of the press as a right of “every citizen” or “every freeman.” Here’s Blackstone’s formulation, which is narrow in its own way (a way that was repudiated pretty early in the Republic’s history) but broad in the description of who is covered by the right: “Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.”

If you can point to some actual Framing-era evidence that “the freedom of speech, or of the press” meant “the freedom of all to speak, and of the institutional media to use the presses,” I’d love to see it. But so far I have seen no such evidence.

Eugene

From: Trevor Potter [mailto:tpotter@capdale.com]
Sent: Wednesday, January 19, 2011 3:44 PM
To: Volokh, Eugene; Salvador Peralta; Frank Askin; Sean Parnell; Bill Maurer; election-law@mailman.lls.edu
Subject: RE: [EL] 12 Months After: The Effect of Citizens United

Well, there is the little matter of specific mention in the Constitution of “the press”…as opposed to “corporations”—so it is not a reach to believe (as courts have for some 200 plus years) that the press has constitutional privileges that do not extend to other commercial entities…

From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, January 19, 2011 6:37 PM
To: Salvador Peralta; Frank Askin; Sean Parnell; Bill Maurer; election-law@mailman.lls.edu
Subject: Re: [EL] 12 Months After: The Effect of Citizens United

So the government may restrict speech in corporate-organized newspapers and magazines, right? After all, they too have limited liability and the other benefits of the corporate form.

Plus of course foreign citizens might directly or indirectly own stock in newspapers. We might not even know whether that’s so. A ban on endorsement or criticism of candidates and ballot measures (or would it indeed be just limited to that?) in newspapers and magazines that use the corporate form would thus be constitutional, yes?

And just to head the usual counterargument off at the pass, if you want to argue that the Free Press Clause is completely different for these purposes than the Free Speech Clause (even though they are closely linked, as “freedom of speech, or of the press”), could you please explain why the “special privileges and rights” argument should defeat one or the other? There’s certainly nothing in the original meaning of the text that so suggests.

Eugene

From: Salvador Peralta [mailto:oregon.properties@yahoo.com]
Sent: Wednesday, January 19, 2011 3:31 PM
To: Volokh, Eugene; Frank Askin; Sean Parnell; Bill Maurer; election-law@mailman.lls.edu
Subject: Re: [EL] 12 Months After: The Effect of Citizens United

Gene,

There is no reason to suppose that entities constituted to gain special privileges and rights that go beyond what mere citizens are allowed -- limited civil, criminal and tax liabilities for their shareholders, for example -- are entitled to all of the same rights and privileges that accrue to individuals who have an interest in that entity.

Moreover, it is simply false to suggest or otherwise imply that a corporation incorporated in the United States is primarily held by US citizens. There are several industry sectors (let alone individual corporations) in which the majority of assets are held by foreign controlled US domestic corporations.

CU has created a state of affairs where far greater speech rights are accorded to capital, regardless of national origin, than currently exists for ordinary American citizens.

It's also worth remembering that corporate "free speech" is (and always will be) a euphemism for "financial expenditure", and that many of those who argue most strenuously in favor of "free speech" when it involves a financial transaction often favor increased limitations on actual speech by real human beings.

From: "Volokh, Eugene" <VOLOKH@law.ucla.edu>
To: Frank Askin <faskin@kinoy.rutgers.edu>; Sean Parnell <sparnell@campaignfreedom.org>; Bill Maurer <wmaurer@ij.org>; "election-law@mailman.lls.edu" <election-law@mailman.lls.edu>
Sent: Wed, January 19, 2011 2:04:53 PM
Subject: Re: [EL] 12 Months After: The Effect of Citizens United

    We the People does not mean "We the Corporations," just as it doesn't mean "We the Newspapers," or "We the Nonprofits." But it hardly follows that when people gather together in groups, whether business corporations, media corporations, nonprofit corporations, or for that matter partnerships, unincorporated associations, and what have you, the First Amendment does not apply to speech channeled through those groups.

    In particular, the "We the People" argument applies equally to both the Free Press Clause and the Free Speech Clause. If it means that business corporations lack rights under the Free Speech Clause, it likewise means that media corporations lack rights under the Free Press Clause.

    Eugene

> -----Original Message-----
> From: election-law-bounces@mailman.lls.edu [mailto:election-law-
> bounces@mailman.lls.edu] On Behalf Of Frank Askin
> Sent: Wednesday, January 19, 2011 1:32 PM
> To: Sean Parnell; Bill Maurer; election-law@mailman.lls.edu
> Subject: Re: [EL] 12 Months After: The Effect of Citizens United
>
> Who do you think "We the People" are? Or do you think it really means
> We the Corporations? FRANK
>
>
>
>
> Prof. Frank Askin
> Distinguished Professor of Law and Director
> Constitutional Litigation Clinic
> Rutgers Law School/Newark
> (973) 353-5687>>> "Bill Maurer" <wmaurer@ij.org> 1/19/2011 4:27 PM >>>
> But individuals are also not given special status in the First
> Amendment
> and the First Amendment says nothing about individuals one way or the
> other.
>
> -----Original Message-----
> From: Frank Askin [mailto:faskin@kinoy.rutgers.edu]
> Sent: Wednesday, January 19, 2011 1:25 PM
> To: Sean Parnell; Bill Maurer; election-law@mailman.lls.edu
> Subject: Re: [EL] 12 Months After: The Effect of Citizens United
>
> Press corporations are no more "people" than other corporations, but
> their special status is recognized in the First Amendment, which says
> nothing about not abridging the freedom of other corporations to speak
> OR try to influence the electoral process.. FRANK
>
>
>
>
> Prof. Frank Askin
> Distinguished Professor of Law and Director
> Constitutional Litigation Clinic
> Rutgers Law School/Newark
> (973) 353-5687>>> "Bill Maurer" <wmaurer@ij.org> 1/19/2011 3:58 PM >>>
> What about for-profit press corporations? Are they people? And what
> is
> the "press"? Will we have a commission that determines whether an
> association of people is sufficiently "press-y" to qualify for
> personhood? And is the ability to vote the standard by which
> personhood
> is determined? The New York Times does not vote and it influences
> election outcomes.
>
>
>
> ________________________________
>
> From: election-law-bounces@mailman.lls.edu
> [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Sean
> Parnell
> Sent: Wednesday, January 19, 2011 9:07 AM
> To: election-law@mailman.lls.edu
> Subject: Re: [EL] 12 Months After: The Effect of Citizens United
>
>
>
> Ran across the following in the Public Citizen report:
>
>
>
> "Corporations are not people. They do not vote, and they should not be
> able to influence
>
> election outcomes. It is time to end the debate about the freedom of
> speech of for-profit
>
> corporations by amending the Constitution to make clear that
> for-profit
> corporations do
>
> not have the same First Amendment rights as people and the press."
>
>
>
> p. 27-28
>
>
>
> Wondering how "Corporations are not people" apparently morphs into
> 'For-profit corporations are not people.' Are nonprofit corporations
> people then? And of course there's the union issue, most of which
> aren't
> incorporated - are unions people? So confusing...
>
>
>
> Sean Parnell
>
> President
>
> Center for Competitive Politics
>
> http://www.campaignfreedom.org
>
> http://www.twitter.com/seanparnellccp
>
> 124 S. West Street, #201
>
> Alexandria, VA 22310
>
> (703) 894-6800 phone
>
> (703) 894-6813 direct
>
> (703) 894-6811 fax
>
>
>
> From: election-law-bounces@mailman.lls.edu
> [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Craig
> Holman
> Sent: Wednesday, January 19, 2011 11:18 AM
> To: election-law@mailman.lls.edu
> Subject: [EL] 12 Months After: The Effect of Citizens United
>
>
>
> Colleagues:
>
> Public Citizen has just released a report documenting the aftermath of
> the Citizens United decision on its one year anniversary --
>
> Excerpted press release and link to the report follows:
>
> A year has passed since the U.S. Supreme Court's decision in Citizens
> United v. Federal Election Commission, and the damage is clear,
> according to a new Public Citizen report.
>
> The tally:
>
> * Outside groups are making record expenditures (more than four times
> as
> much spent in the 2010 midterm election cycle as in the last midterm
> election cycle in 2006);
>
> * Congressional staffs and lawmakers are intimidated by corporate
> lobbyists like never before;
>
> * Laws designed to protect the political system from the corrupting
> influence of money have been rendered dead in 24 states; and
>
> * Power has shifted in dozens of congressional seats in races won with
> the help of undisclosed outside money.
>
>
>
> The 76-page report, "12 Months After: The Effects of Citizens United
> on
> Elections and the Integrity of the Legislative Process," reveals a
> year's worth of damage done by the court's decision is available at:
> http://www.citizen.org/12-months-after.
>
>
>
>
>
> Craig Holman, Ph.D.
>
> Government Affairs Lobbyist
>
> Public Citizen
>
> 215 Pennsylvania Avenue NE
>
> Washington, D.C. 20003
>
> TEL: (202) 454-5182
>
> CEL: (202) 905-7413
>
> FAX: (202) 547-7392
>
> Holman@aol.com
>
> _______________________________________________
> election-law mailing list
> election-law@mailman.lls.edu
> http://mailman.lls.edu/mailman/listinfo/election-law

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