Is Amendment XXVIII a Radical Restriction on Freedom of Speech?

[TheStatutoryApe]

Corporations as "legal persons" is a natural extension of individual rights. That "case law" is interpretation of the consitution.

Corporations have status as 'legal persons' by common law to resolve legal issues with regard to the associated contract law. It is by no means a natural extension of individual rights. And yes, case law involves interpretation of constitution as it applies to the rights of corporations but those rights are both given and limited by bodies of law outside the constitution. 'Legal persons' receive limited rights as outlined by the laws that define the legal fiction in the first place so altering those laws should technically be sufficient.

 

[TheStatutoryApe]

It seems to me that the amendment, as proposed, would essentially give the government a carte blanche to impose any kind of censorship it wants on the mass media; since every TV channel and every news company is a corporation or a LLC. Needless to say, a very bad idea.

Freedom of the press is a separate issue with its own host of laws and case law. This could in no way defeat that and the particular amendment even specifies "Nothing contained in this Article shall be construed to abridge the freedom of the press."

 

[russ_watters]

Corporations have status as 'legal persons' by common law to resolve legal issues with regard to the associated contract law. It is by no means a natural extension of individual rights. And yes, case law involves interpretation of constitution as it applies to the rights of corporations but those rights are both given and limited by bodies of law outside the constitution. 'Legal persons' receive limited rights as outlined by the laws that define the legal fiction in the first place so altering those laws should technically be sufficient.

I'll put this as plainly as I can: you cannot overrule a court decision via legislation.

That's what this whole issue is about! The Congress passed a law that didn't fit with legal precident in interpreting the Constitution and so that law was struck down. Congress has no recourse except to amend the Constitution - they can't just pass another law overriding the USSC decision.

 

[TheStatutoryApe]

I'll put this as plainly as I can: you cannot overrule a court decision via legislation.

That's what this whole issue is about! The Congress passed a law that didn't fit with legal precident in interpreting the Constitution and so that law was struck down. Congress has no recourse except to amend the Constitution - they can't just pass another law overriding the USSC decision.

How would rewriting the legal definition of a corporation to specify the exact rights that they are afforded, including limitations on free speech, be a direct overturn of the decision? The constitution does not define the rights of corporations. The law does. Even this amendment does nothing but specify that congress has the authority to make such laws (which ought to be evident) to prevent further contrary court decisions.

 

[noblegas]

She said she represents the American people and that is why she is pushing for the 28th amendment; Last time I check, the individuals who make up a corporation are part of the American people as well. If there is no limit to how much money one individual or a collection of individuals can donate to a political campaign or two, then the same rule should apply to corporations as well. I think if the politician becomes corrupted as a result of the large sums of money that they received from a corporation, then the politician should be punished not a corporation and he/she will be punished whether through legal means or not being elected again by his previous constiuents come election time. It was not like the corporation seduced the politicians to abide by the corporations interests. Besides, corporations are not the only groups of people capable of corrupting politicians or any institution. Can anyone say teacher's union?

 

[TheStatutoryApe]

She said she represents the American people and that is why she is pushing for the 28th amendment; Last time I check, the individuals who make up a corporation are part of the American people as well. If there is no limit to how much money one individual or a collection of individuals can donate to a political campaign or two, then the same rule should apply to corporations as well. I think if the politician becomes corrupted as a result of the large sums of money that they received from a corporation, then the politician should be punished not a corporation and he/she will be punished whether through legal means or not being elected again by his previous constiuents come election time. It was not like the corporation seduced the politicians to abide by the corporations interests. Besides, corporations are not the only groups of people capable of corrupting politicians or any institution. Can anyone say teacher's union?

There are limits on how much one can contribute unless one is running their own personal campaign which naturally is limited only to persons capable of getting together enough money to accomplish such a thing. A corporation is not necessary. All of those persons who belong to a corporation or are invested in it have no less right to their freedom of speech than anyone else if they are prevented from using a corporation for that purpose.

 

[noblegas]

There are limits on how much one can contribute unless one is running their own personal campaign which naturally is limited only to persons capable of getting together enough money to accomplish such a thing. A corporation is not necessary. All of those persons who belong to a corporation or are invested in it have no less right to their freedom of speech than anyone else if they are prevented from using a corporation for that purpose.

I think it depends on the group of individuals. There is no limit for how much money a national party committee may give to a national party committee or a local, state and regional committee. What do you mean a corporation is not necessary? Are you saying that it is not necessary for a group of individuals to be under the corporation banner when donating money to a political campaign or a political committee?

My problem with this amendment is that it pertains only to corporations and allows congress and state governments to regulate the activity of corporations , but it does not mention any other special interests group or aggregation of individuals. Sure the proposed 28th amendment mentions 'limited liability' or corporate entity, but it does not explicitly mention any other special interests group that may carry out the same alleged actions of a corporation.

 

[Skyhunter]

The biggest issue is whether the general concept of restricting people's ability to pool their political influence is a good or bad thing.

I don't see that as an issue at all. The issue is whether or not unions and corporations, fictitious entities created as tools of business and labor, and other fictitious entities created for specific purposes, are endowed with the same inalienable rights as a human being.

The answer is clearly NO!

There are many tools available for people to pool their political influence together. Corporations, unions, non-profits, etc, are not people. Restricting their activities does not infringe on the rights of a true person.

The 14th Amendment was unnecessary IMO, and a good example of why amending the Constitution should be done deliberately, not in reaction to a temporary condition. The North was afraid that the South would dominate the government after reconstruction, since they now had ²/₅ more apportionment for each former male slave. The 14th Amendment was the feel good remedy which expanded federal power to regulate State elections in the guise of guaranteeing rights that the Constitution already guarantees. Rights the Constitution declares are inalienable and endowed by the Creator.

After passage the Northern States felt they could safely end the reconstruction. As for the former slaves well, the 14th Amendment did little to improve their condition. Between it's ratification in 1886 and 1910, there were 307 14th Amendment cases brought before the Supreme Court. Of those only 19 were about the rights of African American men. (women still didn't have suffrage) The other 288 were about expanding the rights of corporations.

 

[noblegas]

There are many tools available for people to pool their political influence together. Corporations, unions, non-profits, etc, are not people. Restricting their activities does not infringe on the rights of a true person.

There not? Well if there not , then who exactly runs these organizations if they are not people then?

The 14th Amendment was unnecessary IMO, and a good example of why amending the Constitution should be done deliberately, not in reaction to a temporary condition. The North was afraid that the South would dominate the government after reconstruction, since they now had 2/5 more apportionment for each former male slave. The 14th Amendment was the feel good remedy which expanded federal power to regulate State elections in the guise of guaranteeing rights that the Constitution already guarantees. Rights the Constitution declares are inalienable and endowed by the Creator.

Really? I thought it was about prohibiting the State governments as well as the federal government from creating laws that would infringed upon the liberties of individual citizens rather than just prohibiting the federal government from creating laws that would infringed upon the rights of the states concerning creating laws. I don't think the fourteenth amendment was very effective in accomplishing its stated goals for their were many state and local laws leading upto the end of Jim Crow in the South that prevented individuals from exercising personal liberties such as having the bible being taught in public schools , the ku klux klan having the political ability to pass state laws that prohibited private citizens from forming their own private schools in the state of Oregon, and of course blacks were not allowed to enter white owned establishments and businesses.

 

[Skyhunter]

My problem with this amendment is that it pertains only to corporations and allows congress and state governments to regulate the activity of corporations , but it does not mention any other special interests group or aggregation of individuals. Sure the proposed 28th amendment mentions 'limited liability' or corporate entity, but it does not explicitly mention any other special interests group that may carry out the same alleged actions of a corporation.

The amendment makes no allegations. It simply states that Congress has the authority to define, regulate, and restrict the spending and activities of corporations.

Corporations are different from special interest groups which are usually formed to carry out political advocacy. The law is not intended to infringe on and regulate political speech or the right to freely assemble. It is intended to limit the activities of corporations not people. Going further, as you suggest, would be a disaster for Democracy.

When one works for a corporation, we exchange a limited resource, our time, for a portion of the wealth created by our sacrifice. The corporation keeps a portion of the wealth we create, as the organizing entity. The corporation represents workers and shareholders. It's purpose for existence is defined in it's charter, and it's activities should be limited by that definition and regulated by law. It has no business becoming involved in elections beyond that of contracting to provide goods and services to the election commissions. I would prefer to make my decision as to whether or not I work for a particular corporation, or purchase it's goods and services, to be based on relevant issues like compensation, location, work environment, community involvement, environmental practices, etc, not ideology.

 

[Skyhunter]

There not? Well if there not , then who exactly runs these organizations if they are not people then?

This is an absurd argument. It makes as much sense as saying cars are people because people drive them.

Really? I thought it was about prohibiting the State governments as well as the federal government from creating laws that would infringed upon the liberties of individual citizens rather than just prohibiting the federal government from creating laws that would infringed upon the rights of the states concerning creating laws. I don't think the fourteenth amendment was very effective in accomplishing its stated goals for their were many state and local laws leading upto the end of Jim Crow in the South that prevented individuals from exercising personal liberties such as having the bible being taught in public schools , the ku klux klan having the political ability to pass state laws that prohibited private citizens from forming their own private schools in the state of Oregon, and of course blacks were not allowed to enter white owned establishments and businesses.

The North was afraid they would lose the peace. The 13th Amendment abolished slavery. Before that, male slaves were counted as ³/₅ths of a person for apportionment in the House. They wanted to make sure that they could get Congressional allies from the South, by making sure that the federal government could regulate the elections and ensure that black men were allowed suffrage. Which brought us the 14th Amendment.

 

[mheslep]

The 14th amendment extended the prohibitions that the Bill of Rights placed on the federal government to the state governments. Before that, "Congress shall make no law ..." meant only the US Congress, but a state government was free under the US constitution to ban speech, establish state religions (and some did).

 

[noblegas]

This is an absurd argument. It makes as much sense as saying cars are people because people drive them.

Not the same thing. Bad analogy. Corporations are composed of assemblings of people that come together for one common goal ; Cars are a compilation of tangible scraps of metals molded together to suit our desires for long range travel.

The North was afraid they would lose the peace. The 13th Amendment abolished slavery. Before that, male slaves were counted as ³/₅ths of a person for apportionment in the House. They wanted to make sure that they could get Congressional allies from the South, by making sure that the federal government could regulate the elections and ensure that black men were allowed suffrage. Which brought us the 14th Amendment.

I don't disagree agree with you about the 13th amendment abolishing slavery. I thought that the 14th amendment was put into place to prohibit state governments as well as federal governments from making laws that would infringed on the rights of the individual citizens, which were not very effective seeing that their are laws that infringed on the rights of individuals way after it was passed , that I already mentioned in a previous post.

 

[noblegas]

The 14th amendment extended the prohibitions that the Bill of Rights placed on the federal government to the state governments. Before that, "Congress shall make no law ..." meant only the US Congress, but a state government was free under the US constitution to ban speech, establish state religions (and some did).

Yes that's exactly what I was thinking.

 

[TheStatutoryApe]

I think it depends on the group of individuals. There is no limit for how much money a national party committee may give to a national party committee or a local, state and regional committee. What do you mean a corporation is not necessary? Are you saying that it is not necessary for a group of individuals to be under the corporation banner when donating money to a political campaign or a political committee?

My problem with this amendment is that it pertains only to corporations and allows congress and state governments to regulate the activity of corporations , but it does not mention any other special interests group or aggregation of individuals. Sure the proposed 28th amendment mentions 'limited liability' or corporate entity, but it does not explicitly mention any other special interests group that may carry out the same alleged actions of a corporation.

I am unsure of the particular laws surround political parties and exactly what sort of organization they constitute legally. As far as I know any private individual or organization may only contribute a limited amount of funds to any particular campaign. The issue that prompted the court case which resulted in this amendment was corporations running their own private campaigns. As far as I know you can spend as much as you want on your own private campaign for or against any particular candidate. This then gives a number of people who compose a corporation the ability to spend freely in support or in opposition of a chosen candidate so long as the funds are those belonging to the corporation and being spent on a private campaign.

And as far as I know most organizations, including nonprofits such as churches even, fall into the category of corporation. A corporate entity is a sort of contractual arrangement. And as noted by Sky they are granted 'legal personhood'. That is to say that legally the activity of a corporation is attributed to the fictitious personality and not necessarily to the individuals who comprise the corporation. It is not treated as a group of people but as an entity all its own. THAT is one of the major issues (in my opinion) with allowing political speech for corporations.

 

[russ_watters]

How would rewriting the legal definition of a corporation to specify the exact rights that they are afforded, including limitations on free speech, be a direct overturn of the decision? The constitution does not define the rights of corporations. The law does. Even this amendment does nothing but specify that congress has the authority to make such laws (which ought to be evident) to prevent further contrary court decisions.

It sounds like you are suggesting that congress could pass a law redefining corporations and following that, re-pass the McCain Feingold act and the next time it comes up for challenge, the USSC would be compelled by the law to uphold it.

That's just so wrong. The legal definition of a corporation was crafted through hundreds of years of jurisprudence and exists as a direct extension of individual rights. If Congress tried what you suggest, the USSC would just get a strike-down two-fer, striking down two laws at once. That definition that you are saying can be rewritten is the entire issue the USSC is dealing with in the case in question and rewriting it would be a violation of the 1st and 14th amendments, not to mention hundreds of years of legal precident!

 

[russ_watters]

Someone posted this in the first thread on the subject:

Santa Clara County v. Southern Pacific Railroad Company, 1885

The decision famously implied that equal protection laws provided by the Fourteenth Amendment applied to corporations, but the opinion did not explicitly state this.

http://www.oyez.org/cases/1851-1900/1885/0

And more to the point, here is the majority opinion of the court for the Mc-F case:

Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate. 2 U. S. C. §441b. Limits on electioneering communications were upheld in McConnell v. Federal Election Comm’n , 540 U. S. 93, 203–209 (2003) . The holding of McConnell rested to a large extent on an earlier case, Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990) . Austin had held that political speech may be banned based on the speaker’s corporate identity.

In this case we are asked to reconsider Austin and, in effect, McConnell . It has been noted that “ Austin was a significant departure from ancient First Amendment principles,” Federal Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U. S. 449, 490 (2007) (WRTL) ( Scalia , J., concurring in part and concurring in judgment). We agree with that conclusion and hold that stare decisis does not compel the continued acceptance of Austin . The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.

http://www.law.cornell.edu/supct/html/08-205.ZO.html

As it clearly says, the applicability of the 1st amendment to corporations was the very heart of the issue they were ruling on. You can't just insert a new law in between that case and the first amentment in an attempt to block the first amendment's applicability.

 

[russ_watters]

I must admit to not having read up on the recent court decision, but starting into it, it becomes clear that few people here have either. The claimant, Citizens United, is exactly the sort of grassroots political organization that people should want to protect. It isn't a Merck or GM or the UAW, it is an organization that exist precisely for the purpose of pooling individual political influence. It's the sort of thing that people here typically want to exist to counter the power of the corporations and unions.

This is all good stuff. You may want to read the part where they describe the logic behind and the regulations creating PACs:

Before the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibited—and still does prohibit—corporations and unions from using general treasury funds to make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualified federal elections. 2 U. S. C. §441b (2000 ed.); see McConnell, supra, at 204, and n. 87; Federal Election Comm’n v. Massachusetts Citizens for Life, Inc. , 479 U. S. 238, 249 (1986) (MCFL) . BCRA §203 amended §441b to prohibit any “electioneering communication” as well. 2 U. S. C. §441b(b)(2) (2006 ed.). An electioneering communication is defined as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary or 60 days of a general election. §434(f)(3)(A). The Federal Election Commission’s (FEC) regulations further define an electioneering communication as a communication that is “publicly distributed.” 11 CFR §100.29(a)(2) (2009). “In the case of a candidate for nomination for President … publicly distributed means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days.” §100.29(b)(3)(ii). Corporations and unions are barred from using their general treasury funds for express advocacy or electioneering communications. They may establish, however, a “separate segregated fund” (known as a political action committee, or PAC) for these purposes. 2 U. S. C. §441b(b)(2). The moneys received by the segregated fund are limited to donations from stockholders and employees of the corporation or, in the case of unions, members of the union. Ibid. [emphasis added]

In other words, corporate money used for political speech must be explicitly earmarked for that purpose by those who provide the money. I didn't know that, but that covers most of the objections being raised in this thread: the idea that a corporation could use general funds to pay for political ads. The union part seems like a little bit of a loophole to me...

It is interesting how many different arguments they tried and how some of them failed, such as:

In MCFL , the Court found unconstitutional §441b’s restrictions on corporate expenditures as applied to nonprofit corporations that were formed for the sole purpose of promoting political ideas, did not engage in business activities, and did not accept contributions from for-profit corporations or labor unions...

Citizens United does not qualify for the MCFL exemption, however, since some funds used to make the movie were donations from for-profit corporations.

Though CU didn't qualify for that exemption, it is exactly the sort of exemption I think people here would favor.

This is an important point, to me:

Third is the primary importance of speech itself to the integrity of the election process. As additional rules are created for regulating political speech, any speech arguably within their reach is chilled. See Part II–A, supra . Campaign finance regulations now impose “unique and complex rules” on “71 distinct entities.” Brief for Seven Former Chairmen of FEC et al. as Amici Curiae 11–12. These entities are subject to separate rules for 33 different types of political speech. Id. , at 14–15, n. 10. The FEC has adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975.

Now the heart of the ruling - it is straightforward 1st Amendment infringement:

The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” Laws enacted to control or suppress speech may operate at different points in the speech process. The following are just a few examples of restrictions that have been attempted at different stages of the speech process—all laws found to be invalid: restrictions requiring a permit at the outset, Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton , 536 U. S. 150, 153 (2002) ; imposing a burden by impounding proceeds on receipts or royalties, Simon & Schuster , Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U. S. 105, 108, 123 (1991) ; seeking to exact a cost after the speech occurs, New York Times Co. v. Sullivan , 376 U. S., at 267; and subjecting the speaker to criminal penalties, Brandenburg v. Ohio , 395 U. S. 444, 445 (1969) (per curiam) .

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.

Section 441b is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak. See McConnell , 540 U. S., at 330–333 (opinion of Kennedy , J.). A PAC is a separate association from the corporation. So the PAC exemption from §441b’s expenditure ban, §441b(b)(2), does not allow corporations to speak. Even if a PAC could somehow allow a corporation to speak—and it does not—the option to form PACs does not alleviate the First Amendment problems with §441b. PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations...

PACs have to comply with these regulations just to speak. This might explain why fewer than 2,000 of the millions of corporations in this country have PACs...

Section 441b’s prohibition on corporate independent expenditures is thus a ban on speech. As a “restriction on the amount of money a person or group can spend on political communication during a campaign,” that statute “necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”...

Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process. See McConnell , supra , at 251 (opinion of Scalia , J.) (Government could repress speech by “attacking all levels of the production and dissemination of ideas,” for “effective public communication requires the speaker to make use of the services of others”). If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restriction on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect... [someone made precisely that point earlier in the thread]

Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. See, e.g., United States v. Playboy Entertainment Group, Inc. , 529 U. S. 803, 813 (2000) (striking down content-based restriction). Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. See First Nat. Bank of Boston v. Bellotti , 435 U. S. 765, 784 (1978) . As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content...

Next comes the part TSE and I were talking about above: the very applicability of the 1st amendment to corporations:

The Court has recognized that First Amendment protection extends to corporations.(citing Linmark Associates, Inc. v. Willingboro , 431 U. S. 85 (1977) ; Time, Inc. v. Firestone... [then follows a laundry list of cases]

This protection has been extended by explicit holdings to the context of political speech. See, e.g., Button , 371 U. S., at 428–429; Grosjean v. American Press Co. , 297 U. S. 233, 244 (1936) . Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.”...

(“The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster” (quoting Bellotti, 435 U. S., at 783)). The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.” Id., at 776; see id. , at 780, n. 16. Cf. id. , at 828 (Rehnquist, J., dissenting)...

The dissent concluded that deeming a particular group “too powerful” was not a “justificatio[n] for withholding First Amendment rights from any group—labor or corporate.” Id. , at 597. The Court did not get another opportunity to consider the constitutional question in that case; for after a remand, a jury found the defendants not guilty...

There is simply no support for the view that the First Amendment , as originally understood, would permit the suppression of political speech by media corporations. The Framers may not have anticipated modern business and media corporations. See McIntyre v. Ohio Elections Comm’n , 514 U. S. 334, 360–361 (1995) ( Thomas , J., concurring in judgment). Yet television networks and major newspapers owned by media corporations have become the most important means of mass communication in modern times. The First Amendment was certainly not understood to condone the suppression of political speech in society’s most salient media. It was understood as a response to the repression of speech and the press that had existed in England and the heavy taxes on the press that were imposed in the colonies. See McConnell , 540 U. S., at 252–253 (opinion of Scalia , J.); Grosjean , 297 U. S., at 245–248; Near , 283 U. S., at 713–714. The great debates between the Federalists and the Anti-Federalists over our founding document were published and expressed in the most important means of mass communication of that era—newspapers owned by individuals. See McIntyre , 514 U. S., at 341–343; id. , at 367 ( Thomas , J., concurring in judgment). At the founding, speech was open, comprehensive, and vital to society’s definition of itself; there were no limits on the sources of speech and knowledge. See B. Bailyn, Ideological Origins of the American Revolution 5 (1967) (“Any number of people could join in such proliferating polemics, and rebuttals could come from all sides”); G. Wood, Creation of the American Republic 1776–1787, p. 6 (1969) (“t is not surprising that the intellectual sources of [the Americans’] Revolutionary thought were profuse and various”). The Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.

It's a great read. The decision directly addresses virtually all of what has been discussed in this thread.

 

[TheStatutoryApe]

It sounds like you are suggesting that congress could pass a law redefining corporations and following that, re-pass the McCain Feingold act and the next time it comes up for challenge, the USSC would be compelled by the law to uphold it.

That's just so wrong. The legal definition of a corporation was crafted through hundreds of years of jurisprudence and exists as a direct extension of individual rights. If Congress tried what you suggest, the USSC would just get a strike-down two-fer, striking down two laws at once. That definition that you are saying can be rewritten is the entire issue the USSC is dealing with in the case in question and rewriting it would be a violation of the 1st and 14th amendments, not to mention hundreds of years of legal precident!

The defined rights of corporations are different in different locales from country to country and state to state (province to province) despite hundreds of years of precedent in common law. Corporations receive rights only so far as the law that defines them in any given legal jurisdiction allows them such rights. Redefining a corporations rights can only be a violation of the 1st amendment if you cede defacto individual rights to a corporation but the law need not even recognize the existence of the corporation let alone any rights it supposedly has except that it has already agreed to do so by its own laws. And as I already noted the origin of the corporation was in the need to resolve issues of the equitable disposition of accounts and debt in the associated contract law. It has nothing what ever to do with individual rights. It was born of a financial issue, not a rights issue so I have no idea where this concept of it being a 'natural extension of individual rights' comes from.

 

[russ_watters]

There is also some scathing criticism of the dissenting opinion in one of the concurring opinions:

I write separately to address Justice Stevens ’ discussion of “ Original Understandings ,” post , at 34 (opinion concurring in part and dissenting in part) (hereinafter referred to as the dissent). This section of the dissent purports to show that today’s decision is not supported by the original understanding of the First Amendment . The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form...

Though faced with a constitutional text that makes no distinction between types of speakers, the dissent feels no necessity to provide even an isolated statement from the founding era to the effect that corporations are not covered, but places the burden on petitioners to bring forward statements showing that they are (“there is not a scintilla of evidence to support the notion that anyone believed [the First Amendment ] would preclude regulatory distinctions based on the corporate form,” post, at 34–35)...

The dissent says that when the Framers “constitutionalized the right to free speech in the First Amendment , it was the free speech of individual Americans that they had in mind.” Post, at 37. That is no doubt true. All the provisions of the Bill of Rights set forth the rights of individual men and women—not, for example, of trees or polar bears. But the individual person’s right to speak includes the right to speak in association with other individual persons . Surely the dissent does not believe that speech by the Republican Party or the Democratic Party can be censored because it is not the speech of “an individual American.” It is the speech of many individual Americans, who have associated in a common cause, giving the leadership of the party the right to speak on their behalf. The association of individuals in a business corporation is no different—or at least it cannot be denied the right to speak on the simplistic ground that it is not “an individual American.” [emphasis added]

Ouch.

The dissenting opinion itself is very long... I may go through it later.

 

[russ_watters]

The defined rights of corporations are different in different locales from country to country and state to state (province to province) despite hundreds of years of precedent in common law.

As are a host of other laws - yet all must conform to the intent of the Constitution.

Corporations receive rights only so far as the law that defines them in any given legal jurisdiction allows them such rights.

Yes, but what you are missing here is that "the law" in this case is the Constitution itself and "the jurisdiction" is The United States.

Redefining a corporations rights can only be a violation of the 1st amendment if you cede defacto individual rights to a corporation but the law need not even recognize the existence of the corporation let alone any rights it supposedly has except that it has already agreed to do so by its own laws. And as I already noted the origin of the corporation was in the need to resolve issues of the equitable disposition of accounts and debt in the associated contract law. It has nothing what ever to do with individual rights. It was born of a financial issue, not a rights issue so I have no idea where this concept of it being a 'natural extension of individual rights' comes from. [emphasis added]

I know you're just replying to things in order, but read what I've posted from the decision - it is in there, clear as day: It is a simple matter of logic that in order for a single person's freedom of speech to be protected, you must also protect his right to team up with a second (or third or thirty-thousandth) person to pool their resources to excercise that right more loudly, collectively. Re-quoted from above:

But the individual person’s right to speak includes the right to speak in association with other individual persons . Surely the dissent does not believe that speech by the Republican Party or the Democratic Party can be censored because it is not the speech of “an individual American.” It is the speech of many individual Americans, who have associated in a common cause, giving the leadership of the party the right to speak on their behalf. The association of individuals in a business corporation is no different—or at least it cannot be denied the right to speak on the simplistic ground that it is not “an individual American.”

 

[TheStatutoryApe]

There is also some scathing criticism of the dissenting opinion in one of the concurring opinions: Ouch.

The dissenting opinion itself is very long... I may go through it later.

He ignores that a corporation is not merely the 'association of individuals', that a corporation is legally an individual itself with limited rights, and that the issue does not regard individuals in association with one another but rather the corporate individual. This really seems to show that they were ignoring legal nuances in their decision more than anything. I have no idea where he comes to the conclusion that Stevens is wrong to place the burden on those wishing to claim the constitution protects rights for non-natural persons to show evidence of that protection. Again the odd idea that fictitious persons possesses defacto individual rights.

 

[TheStatutoryApe]

As are a host of other laws - yet all must conform to the intent of the Constitution. Yes, but what you are missing here is that "the law" in this case is the Constitution itself and "the jurisdiction" is The United States. I know you're just replying to things in order, but read what I've posted from the decision - it is in there, clear as day: It is a simple matter of logic that in order for a single person's freedom of speech to be protected, you must also protect his right to team up with a second (or third or thirty-thousandth) person to pool their resources to excercise that right more loudly, collectively. Re-quoted from above:

My last response mostly covers this, I was typing while you were posting. The only thing I add is that 'legal persons' do not receive defacto constitutional rights. It is what separates 'legal persons' from 'natural persons'. Legal persons receive rights only so far as the legal fiction defines them, the constitution is irrelevant except where applied to rights enumerated by the laws establishing the legal fiction which of course are not part of the constitution.

 

[mheslep]

I don't think anyone has addressed the operation of the corporate media at large in these (two) threads, which Scalia also draws attention to:

And the notion which follows from the dissent’s view, that modern newspapers, since they are incorporated, have free-speech rights only at the sufferance of Congress, boggles the mind.6

http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf, page 84

 

[TheStatutoryApe]

I don't think anyone has addressed the operation of the corporate media at large in these (two) threads, which Scalia also draws attention to:

http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf, page 84

It has been brought up to some degree. The media is a different issue. They are theoretically providing a service (reporting the news). Theoretically if they were found to not be providing a service (not just reporting the news) but rather running a political campaign then they would be at the mercy of the same laws as any other corporation. Interpretations of freedom of the press are heavily slanted in favour of the press so it would probably be difficult to nail anyone on this.

 

[mheslep]

It has been brought up to some degree. The media is a different issue. They are theoretically providing a service (reporting the news). Theoretically if they were found to not be providing a service (not just reporting the news) but rather running a political campaign then they would be at the mercy of the same laws as any other corporation. Interpretations of freedom of the press are heavily slanted in favour of the press so it would probably be difficult to nail anyone on this.

That was Scalia's point - there is no difference under the 1st amendment - you, me, you and me, press. See footnote 6. The amendment doesn't say 'that provide a important service', or the 'institution' of the press. Whether or not the media provide some role, or what dispensation Congress might give this or that organization is irrelevant.

 

[Skyhunter]

Thanks for the link Russ. I had read the Courts Opinion, but not the partial dissent.

The question of corporate personage is not IMO a Constitutional question. I am still agnostic about the proposed amendment. I think there is a deeper question that should be resolved. I do agree with the Court that speech must not be artificially chilled by the government. But I completely disagree with the idea that legal persons are automatically entitled to the same rights and privileges as natural persons under the Constitution.

That question has not been resolved, and this case does not resolve it. The XXVIII Amendment as written, does not resolve it. I think I would prefer an Amendment that addresses the deeper question, not an over broad reaction to a single ruling.

The defined rights of corporations are different in different locales from country to country and state to state (province to province) despite hundreds of years of precedent in common law. Corporations receive rights only so far as the law that defines them in any given legal jurisdiction allows them such rights. Redefining a corporations rights can only be a violation of the 1st amendment if you cede defacto individual rights to a corporation but the law need not even recognize the existence of the corporation let alone any rights it supposedly has except that it has already agreed to do so by its own laws. And as I already noted the origin of the corporation was in the need to resolve issues of the equitable disposition of accounts and debt in the associated contract law. It has nothing what ever to do with individual rights. It was born of a financial issue, not a rights issue so I have no idea where this concept of it being a 'natural extension of individual rights' comes from.

The http://www.law.cornell.edu/supct/html/08-205.ZX.html" agrees with TSA.

The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante , at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.

The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

Next, Stevens addresses the scope of the case.

The first reason is that the question was not properly brought before us. In declaring §203 of BCRA facially unconstitutional on the ground that corporations’ electoral expenditures may not be regulated any more stringently than those of individuals, the majority decides this case on a basis relinquished below, not included in the questions presented to us by the litigants, and argued here only in response to the Court’s invitation. This procedure is unusual and inadvisable for a court. 2 Our colleagues’ suggestion that “we are asked to reconsider Austin and, in effect, McConnell ,” ante , at 1, would be more accurate if rephrased to state that “we have asked ourselves” to reconsider those cases.

In the District Court, Citizens United initially raised a facial challenge to the constitutionality of §203. App. 23a–24a. In its motion for summary judgment, however, Citizens United expressly abandoned its facial challenge, 1:07–cv–2240–RCL–RWR, Docket Entry No. 52, pp. 1–2 (May 16, 2008), and the parties stipulated to the dismissal of that claim, id. , Nos. 53 (May 22, 2008), 54 (May 23, 2008), App. 6a. The District Court therefore resolved the case on alternative grounds, 3 and in its jurisdictional statement to this Court, Citizens United properly advised us that it was raising only “an as-applied challenge to the constitutionality of … BCRA §203.” Juris. Statement 5. The jurisdictional statement never so much as cited Austin , the key case the majority today overrules. And not one of the questions presented suggested that Citizens United was surreptitiously raising the facial challenge to §203 that it previously agreed to dismiss. In fact, not one of those questions raised an issue based on Citizens United’s corporate status. Juris. Statement (i). Moreover, even in its merits briefing, when Citizens United injected its request to overrule Austin , it never sought a declaration that §203 was facially unconstitutional as to all corporations and unions; instead it argued only that the statute could not be applied to it because it was “funded overwhelmingly by individuals.” Brief for Appellant 29; see also id., at 10, 12, 16, 28 (affirming “as applied” character of challenge to §203); Tr. of Oral Arg. 4–9 (Mar. 24, 2009) (counsel for Citizens United conceding that §203 could be applied to General Motors); id., at 55 (counsel for Citizens United stating that “we accept the Court’s decision in Wisconsin Right to Life ”).

It may be just my limited perception, but it seems there is a disproportionate amount of judicial activism on behalf of corporate rights.

 

[CRGreathouse]

I think I would prefer an Amendment that addresses the deeper question, not an over broad reaction to a single ruling.

Suggestions?

 

[BobG]

As are a host of other laws - yet all must conform to the intent of the Constitution. Yes, but what you are missing here is that "the law" in this case is the Constitution itself and "the jurisdiction" is The United States. I know you're just replying to things in order, but read what I've posted from the decision - it is in there, clear as day: It is a simple matter of logic that in order for a single person's freedom of speech to be protected, you must also protect his right to team up with a second (or third or thirty-thousandth) person to pool their resources to excercise that right more loudly, collectively. Re-quoted from above:

He ignores that a corporation is not merely the 'association of individuals', that a corporation is legally an individual itself with limited rights, and that the issue does not regard individuals in association with one another but rather the corporate individual. This really seems to show that they were ignoring legal nuances in their decision more than anything. I have no idea where he comes to the conclusion that Stevens is wrong to place the burden on those wishing to claim the constitution protects rights for non-natural persons to show evidence of that protection. Again the odd idea that fictitious persons possesses defacto individual rights.

TSA is exactly right. Saying a corporation is an association of individuals ignores the entire purpose of corporations - to separate the individual stockholders from the liabilities that accompany owning a company. A corporation is not an association of individuals that all share the risk of being personally sued, personally held liable to honor contracts they agreed to, etc. The "corporation", the fictional legal person, assumes all of these risks. The stockholders are practically just creditors that loan a corporation money in return for a profit - with the difference being they do have a say in what contracts, what risks, the corporation can undertake.

That was Scalia's point - there is no difference under the 1st amendment - you, me, you and me, press. See footnote 6. The amendment doesn't say 'that provide a important service', or the 'institution' of the press. Whether or not the media provide some role, or what dispensation Congress might give this or that organization is irrelevant.

The press does not have "freedom of speech". Freedom of speech applies to individuals. The press is covered by "freedom of the press", which is a completely different statement that also happens to be in the First Amendment. Being covered in the same amendment doesn't make them the same thing, no more than "freedom of religion", yet another completely separate concept covered in the 1st Amendment, is the same thing as "freedom of speech" or "freedom of the press".

In other words, the 1st Amendment guarantees three completely separate issues:

1) Freedom of speech
2) Freedom of the press
3) Freedom of religion

 

[mheslep]

Freedom of speech applies to individuals.

Says you BobG. SOTUS says it also applies collectively to groups of people acting in concert.

 

[BobG]

Says you BobG. SOTUS says it also applies collectively to groups of people acting in concert.

Perhaps. It's beside the point.

The point is that the press have special rights that are spelled out in the First Amendment regardless of whether it's owned by an individual, a partnership, or a corporation. Scalia's comments about the press were irrelevant at best.

You seemed concerned that no one had addressed why the press had "freedom of speech" while other corporations didn't. The press doesn't have "freedom of speech". It has "freedom of the press", which is spelled out specifically in the Amendment.

 

[mheslep]

Perhaps. It's beside the point.

The point is that the press have special rights that are spelled out in the First Amendment regardless of whether it's owned by an individual, a partnership, or a corporation. ...

There is no special dispensation for partnerships and corporations regarding the press that do not equally apply to speech from others:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

It's just not there.

 

[BobG]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

How is this part, "... or of the press;..." , to be interpreted?

 

[mheslep]

How is this part, "... or of the press;..." , to be interpreted?

I think it is straight forward - no abridgement by Congress of anyone, any company, or any group set up in any manner what so ever that allows that entity to act as an agent of 'the press'. I contend the same type of unrestricted description necessarily applies to speech, at least that's how I read the opinion.

 

[BobG]

I think it is straight forward - no abridgement by Congress of anyone, any company, or any group set up in any manner what so ever that allows that entity to act as an agent of 'the press'. I contend the same type of unrestricted description necessarily applies to speech, at least that's how I read the opinion.

In other words, any company or group has freedom of speech, making the "of the press" part irrelevant and unnecessary? Or was the "of the press" part put in the amendment for a reason, since the "freedom of speech" part wouldn't cover a newspaper publisher?