Is Amendment XXVIII a Radical Restriction on Freedom of Speech?

[CRGreathouse]

It's not clear at all as to what you mean by "hold the corporation responsible for that act". Who, exactly, is being held responsible?

The corporation -- its assets. Indirectly, its bondholders, shareholders, and employees.

Is there some specific persons facing prison time or fines?

Of course people would be held responsible -- at least you and I both said they would (and should). But just because people are held responsible should not automatically free the corporation from responsibility.

Or is the corporation facing a fine, which, in effect, indirectly fines every stockholder in the company? (A fine is about the only punishment you can enforce against a corporation).

A fine is all I would want to extract from a corporation. Jail time is for real people (and given our bad communication record, I will reiterate that real people should generally be punished, with fines, community service, prison time, etc. as appropriate).

Say for example a corporation has people shot to drive up the price of their shoes. Sure, the corporate assassin should be brought to justice (premeditated murder). Sure, the Vice President planning it should go down (murder/conspiracy to commit murder/accessory to murder/etc.). But the company should bear responsibility as well.

 

[BobG]

My point, exactly, is that criticizing the Supreme Court decision on the grounds that it conflicts with his political agenda -- no matter how well-meaning it is -- shows a flagrant disregard for the reason we have the SCOTUS in the first place.

Thankfully, the constitution protects the SC justices from overzealous politicians.

That might be giving too much importance to a Congressman's reply to a constituent's letter. How many times have you ever gotten a reply from a Congressman that said anything more than "Thanks for writing"? In other words, mshelp's criticism might be more accurate:

Go and do what? He doesn't suggest any action other than that you should keep writing to him.

I think Ivan stated what the letter meant fairly clearly. The Supreme Court decision generated enough attention that the Senator designed a form letter specifically to reply to the letters he received about the decision. The letters he's received have obviously gotten his attention and elevated the issue on his priority list (at least high enough to design a reply; and maybe high enough to realize there could be a backlash if he ignores the issue?)

I wouldn't expect him to lay out a plan of action in that type of letter.

(I wonder if any Congressman in the US has designed a form letter reply defending the Supreme Court decision. Timing may be irrelevant to the Supreme Court, but it might be safer for politicians to wait for a complete recovery from the recession before they advertise themselves as a hero standing up for the rights of corporations.)

 

[Gokul43201]

Yuck. He disagrees with the legal ruling because it doesn't suit his politics?

He also states (implies?), that he disagrees with the ruling because it is at odds with his interpretation of the Founders' intent. I think that's a lot less yuckworthy than you are finding it to be.

Our Founders understood that the success of our democracy requires ...

 

[Hurkyl]

That might be giving too much importance to a Congressman's reply to a constituent's letter.

Maybe. But then again, the only information I have is this letter and stereotypes.

 

[edpell]

The purpose of government is to "promote the common good". If unbridled corporate power does not serve the common good we are free to bridle it. If unbridled individual wealth does not serve the common good we are free to bridle it.

 

[Ivan Seeking]

My point, exactly, is that criticizing the Supreme Court decision on the grounds that it conflicts with his political agenda -- no matter how well-meaning it is -- shows a flagrant disregard for the reason we have the SCOTUS in the first place.

Thankfully, the constitution protects the SC justices from overzealous politicians.

The SC interprets the law and Congress passes the laws. The SC answers to the Constituton, which Congress has a right to amend. This is all entirely in keeping with the democratic process and rule by The People. This is how things are supposed to work. We are not slaves to legal interpretations of existing law. That was never the intent of the framers, nor does it make any sense.

This is not a "political agenda". It is about preserving our system of government. If you mean to imply that this is some sort of liberal agenda, then clearly you would be referring to the Court's liberal interpretation of the law.

 

[Ivan Seeking]

As BobG mentioned, the good Senator's response shows that this issue has risen on his list of prioreties. I can say that, not often, but from time to time I email [wrote, in the old days], my respresentitives. At most one generally gets a acknowledgment of the contact with no specific references. That he responded with a highly targeted letter stating a clear position on the subject - that he strongly disagrees with the Court's decision - is very encouraging.

No response at all from Senator Wyden or my Congressman yet.

If anyone else has written and receved a response from their representitives, please do post.

 

[Proton Soup]

The SC interprets the law and Congress passes the laws. The SC answers to the Constituton, which Congress has a right to amend. This is all entirely in keeping with the democratic process and rule by The People. This is how things are supposed to work. We are not slaves to legal interpretations of existing law. That was never the intent of the framers, nor does it make any sense.

This is not a "political agenda". It is about preserving our system of government. If you mean to imply that this is some sort of liberal agenda, then clearly you would be referring to the Court's liberal interpretation of the law.

it is certainly political. it even teeters on the edge of conspiracy theory.

 

[Hurkyl]

The SC interprets the law and Congress passes the laws. ... This is how things are supposed to work.

That's right. The SCOTUS doesn't get to write law, nor rewrite the constitution. Its role is to interpret the law and rule what the law says, even when -- especially when -- the law conflicts with the latest popular opinions.

If that's what you truly believe, then why are you so fervently defending someone who is criticizing the SCOTUS because it's ruling doesn't favor of his agenda? And doing so by touting how great his agenda is?

This is not a "political agenda". It is about preserving our system of government.

Preserving our system of government is a goal. Politics is how we decide how to attain that goal. I don't see how there can be question about that -- that's pretty much the definition of politics!

 

[BobG]

Now wait, excluding the intro and the closing, he says:

I strongly disagree with the five Supreme Court justices who decided in the Citizens United v. F.E.C. to reverse long-standing precedent by ruling that corporate spending on campaign ads is entitled to the same protections as citizens' free speech.

He disagrees with the Supreme Court and this is why.

Disagreeing isn't enough. Some disagreements are too trivial to bother about.

I have been troubled for many years by the widespread perception that campaign contributors have greater influence in our democracy than ordinary citizens. Therefore, I am deeply concerned that the court's decision validates this view and will open the floodgates for political spending by corporations and special interest groups.

This is why this particular disagreement is worth bothering about.

Our Founders understood that the success of our democracy requires ensuring that special interest voices do not drown out those voices of American citizens. I am committed to working with my colleagues to respond to this ruling and protect the integrity of our elections.

This is what I intend to do to rectify the problem.

The letter is well written, even if it is just a general reply.

Well, except for one thing. He inadvertantly addresses what should have been pro-BCRA people's biggest hurdle - there's a perception that there's a problem, but, unfortunately, we haven't shown examples of how it is a problem.

I don't think the hurdle for restricting speech of corporations needs to be very high, but there does have to be a reason for restricting speech no matter what the source - just because the receivers of any speech are as important as the transmitter of any speech. If at least 75% to 80% of the text were cut out of the decision and they focused only on how this affected the potential receivers of any corporate speech, I think the decision would be legitimate.

What in the world possessed them to wander off into inalienable rights for artificial persons, and to wonder why the press and news media should have more rights than other corporations (because the press is specifically written right into the First Amendment is why!) and to start talking about how corporations are associations of individuals?! And did Alito really need to dedicate so much text to explaining why overruling precedent was a legitimate function of the court? (Pure speculation, but did they come to a decision about the case, and then Scalia managed to get some of his personal reasons into the decision, making it sound like those were the deciding factors? Seriously - 183 pages, 4 opinions, and 5-4 vote. There were some intense arguments going on behind the scenes.)

There's a saying that the Supreme Court doesn't get the final decision because they're always right - they're always right because they get the final decision. And I think some of the logic in this decision is a good example of that.

 

[BobG]

By the way, as convoluted as the logic about why a corporation that owned a newspaper should get preferential treatment over a corporation that didn't own a newspaper was, it at least had one incident that could support it.

In spite of Abraham Lincoln's legend of having been raised in a log cabin, he wasn't some country pauper when he ran for President. His law practice was successful enough that he was able to buy a newspaper and use that newspaper to help support his successful run for President. History of campaign finance reform

It is true that if a corporation wanted to affect the public's attitudes about an issue by broadcasting attack ads, info ads, whatever, they could do so by buying a newspaper or television station. In fact, the Sun Myun Moon did exactly that by buying the Washington Times. The reputation of the Washington Times provides at least a little evidence that that's a tactic unlikely to work. You have to have a little faith that the public will realize the difference between real information and garbage.

Although discussed in a completely different thread, the damage bad publicity did to the Ford Pinto and the Chevrolet Corvair suggest that only having a little faith might be the right amount. You certainly have a situation where corporate money could completely distort elections with garbage information, but you have to show at least one or two examples.

 

[Ivan Seeking]

One suggestion for the basic outline for the 28th Amendment to the Constitution: A "person" is defined to be a human being. All rights and powers reserved to the people are reserved only to real human beings.

Just a radical liberal notion of mine.

Objections?

 

[BobG]

One suggestion for the basic outline for the 28th Amendment to the Constitution: A "person" is defined to be a human being. All rights and powers reserved to the people are reserved only to real human beings.

Just a radical liberal notion of mine.

Objections?

If it takes a Constitutional Amendment to define something a judge should have learned in law school, then I'm voting for the first Miss America contestant that proposes we buy law dictionaries for the underprivileged lawyers of the world.

 

[Proton Soup]

One suggestion for the basic outline for the 28th Amendment to the Constitution: A "person" is defined to be a human being. All rights and powers reserved to the people are reserved only to real human beings.

Just a radical liberal notion of mine.

Objections?

you looking to overturn Roe v. Wade ?

 

[Ivan Seeking]

Amendment I
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.

Note that while some will try to claim that radical proposals like mine would supress the right to a free press, "the press" already has specific protection.

 

[mheslep]

By the way, as convoluted as the logic about why a corporation that owned a newspaper should get preferential treatment over a corporation that didn't own a newspaper was, it at least had one incident that could support it...

Yes there was the Lincoln incident. How in does that support the preferential treatment argument?

 

[Ivan Seeking]

you looking to overturn Roe v. Wade ?

That is an argument about the definition of life and has nothing to do with this debate.

 

[mheslep]

Note that while some will try to claim that radical proposals like mine would supress the right to a free press, "the press" already has specific protection.

So does speech.

 

[Ivan Seeking]

So does speech.

And that right is reserved to whom?

 

[Ivan Seeking]

This isn't about free speech. This is about defining that a corporation has the same rights as a person.

Once we establish that The People, not The Corporations, have Constitutional protections, we can debate about what rights corporations should have. The key is to establish that all rights given to corporations or any other entity are granted by the people. Note also that a free press is a right of the people. This does not define what we mean by "the press". That is left to the people.

 

[BobG]

By the way, as convoluted as the logic about why a corporation that owned a newspaper should get preferential treatment over a corporation that didn't own a newspaper was, it at least had one incident that could support it...

Yes there was the Lincoln incident. How in does that support the preferential treatment argument?

Actually, that was a typo. I meant could get preferential treatment instead of should. A normal corporation can't broadcast political ads. A corporation that owned a TV station could.

In other words, freedom of the press can be abused, since partisans with no real interest in objective news could buy (and have bought) news media. Still, it's written right into the First Amendment, so how can it be unconstitutional, even if it is abused?

 

[Proton Soup]

That is an argument about the definition of life and has nothing to do with this debate.

no, it has everything to do with it. R v. W is not predicated on the definition of life, but of personhood. fetuses are not protected because they are not persons.

the point is the law of unintended consequences. a "small" change like you propose has the ability to unravel a ton of law.

 

[CRGreathouse]

One suggestion for the basic outline for the 28th Amendment to the Constitution: A "person" is defined to be a human being. All rights and powers reserved to the people are reserved only to real human beings.

Just a radical liberal notion of mine.

Objections?

Sure. It interacts badly with newspapers, political parties, universities, etc. This would make censorship (except for personally-published information) just a Congressional vote away. ("The DNC may not advertise"; "All newspaper corporations must print articles supporting the Fatherland"; "Student newspapers are subject to prior restraint".)

Also, this could easily bias what free speech/etc. is used. If only individuals (that is, natural persons) have these rights, then only sufficiently moneyed individuals will, practically speaking, be able to disseminate the information broadly.


I don't like the SC ruling myself -- though like Dredd Scott, the ruling seems legally proper. But your cure fills me with dread. I don't want a cure worse than the disease, thank you.

 

[TheStatutoryApe]

no, it has everything to do with it. R v. W is not predicated on the definition of life, but of personhood. fetuses are not protected because they are not persons.

the point is the law of unintended consequences. a "small" change like you propose has the ability to unravel a ton of law.

I don't see what change Ivan's proposal would make here. The whole debate in R v. W is whether or not a fetus, before a certain stage of development, can really be considered a human being. The current law says no. So the explicit definition of persons, as protected by the constitution, being real human beings would not seem to effect these laws in any way as the fetus before a certain stage of development is not legally considered to be a real human being except in potential.

 

[BobG]

no, it has everything to do with it. R v. W is not predicated on the definition of life, but of personhood. fetuses are not protected because they are not persons.

the point is the law of unintended consequences. a "small" change like you propose has the ability to unravel a ton of law.

Ironically, Ivan's proposal for a Constitutional Amendment defining a person as a human being isn't a change. Check a law dictionary.

Of course, a law dictionary will go on to expand that definition. A natural person is always a human being (with natural person being the default for person). A legal person or juridical person can be an association of individuals, a corporation, a city or municipality, etc. For legislation, a person is assumed to be a natural person unless the legislation specifies they're using a different definition.

The Securities Act Hurkyl linked to is a perfect example. At the start of the document, "person" was defined to be the long list of entities the legislation dealt with. Listing them out every time they were mentioned would make reading the document unbearable.

 

[TheStatutoryApe]

Sure. It interacts badly with newspapers, political parties, universities, etc. This would make censorship (except for personally-published information) just a Congressional vote away. ("The DNC may not advertise"; "All newspaper corporations must print articles supporting the Fatherland"; "Student newspapers are subject to prior restraint".)

Also, this could easily bias what free speech/etc. is used. If only individuals (that is, natural persons) have these rights, then only sufficiently moneyed individuals will, practically speaking, be able to disseminate the information broadly.


I don't like the SC ruling myself -- though like Dredd Scott, the ruling seems legally proper. But your cure fills me with dread. I don't want a cure worse than the disease, thank you.

The press already has protections. The press also tend to be people despite the fact that they may be working for corporations. A reporter who abuses the freedom of press can be held legally accountable and the corporation will only be held accountable, if at all, as the employer and entity that gave the reporter a venue to abuse the freedom of the press. And people need not publish their own materials. A publisher is a business. If a person writes a book and a publisher decides that they would like to publish it there is no speech being made by the corporation. The speech is that of the writer. If the corporation hires a person to produce material by their direction is when it starts to become corporate speech.

Moneyed individuals need not be the only ones with sufficient funds to disseminate materials. Defining only natural persons as those possessed of unlimited freedom of speech does not at all remove the right of persons to associate and organize. They would simply be unable to organize as a corporation and create a separate legal entity to use as their mouth piece. They have their own mouths, have the right to free speech, have the right to associate, always have, and it has not been at all proposed anywhere in this thread that I am aware that these freedoms should be striped of them.

 

[BobG]

Defining only natural persons as those possessed of unlimited freedom of speech does not at all remove the right of persons to associate and organize. They would simply be unable to organize as a corporation and create a separate legal entity to use as their mouth piece. They have their own mouths, have the right to free speech, have the right to associate, always have, and it has not been at all proposed anywhere in this thread that I am aware that these freedoms should be striped of them.

In other words, they'd be personally accountable for their own speech. They wouldn't be using an artificial person to voice their opinions and to take the heat for their opinions (in the event they committed libel, slander, etc).

 

[Proton Soup]

I don't see what change Ivan's proposal would make here. The whole debate in R v. W is whether or not a fetus, before a certain stage of development, can really be considered a human being. The current law says no. So the explicit definition of persons, as protected by the constitution, being real human beings would not seem to effect these laws in any way as the fetus before a certain stage of development is not legally considered to be a real human being except in potential.

you do not think "human being" is a reference to our species?

i have always understood it to be that person means something more than simply human being. otherwise, it would not be possible to perform partial birth abortions. the only thing that separates that human being from a person with rights is which side of the birth canal its head lies on. but, IANAL.

 

[TheStatutoryApe]

you do not think "human being" is a reference to our species?

i have always understood it to be that person means something more than simply human being. otherwise, it would not be possible to perform partial birth abortions. the only thing that separates that human being from a person with rights is which side of the birth canal its head lies on. but, IANAL.

I am not a lawyer either. I decided to do a little looking. Apparently there are no laws or legal definitions making a fetus at any stage a person at all except in potential. The definition of "natural person" even specifies a "living breathing human being". Summery explanations seem to indicate that RvW was decided based on a right to privacy as opposed to any definition of humanity.

edit: also note that I am not speaking here at all except in reference to the law so I am making no judgments as to whether "human being" should properly be descriptive of our species or only "living breathing" individuals.

 

[CRGreathouse]

The press already has protections.

Yes -- even constitutional protections. Your proposed amendment would strip those constitutional protections, so that a normal law (218 + 61 + 1 or 291 + 67) could remove them.

The press also tend to be people despite the fact that they may be working for corporations.

I think there would be a substantial chilling effect if a law was passed that said, "Newspaper corporations can't print news", even though the individual (and, presumably, soon-to-be-unemployed) reporters could report news on their own.

A publisher is a business. If a person writes a book and a publisher decides that they would like to publish it there is no speech being made by the corporation. The speech is that of the writer.

Yes, but now [that is, in the alternate present in which that amendment has been passed] a law that says, "Book publishers can't publish books", or "All material must be approved by the Department of the Kensor before being published (except by sole proprietorships or individuals)" is constitutional.

If the corporation hires a person to produce material by their direction is when it starts to become corporate speech.

That seems a sketchy distinction. I can think of many odd situations involving it... but considering how differently seemingly-reasonable PF members interpret the present state of law, how multifariously do you expect the interpretations of that amendment would be?

Moneyed individuals need not be the only ones with sufficient funds to disseminate materials.

True -- and it's increasingly easy with the Internet. But imagine how much of a power swing that could cause! And of course the real world moves insidiously rather than brazenly: think of recent power grabs like Bush's PATRIOT act (in light of 9/11) or Obama's stimulus plan (in light of the economic crisis). I think restrictions on speech and the press would come about in fairly natural steps.

Defining only natural persons as those possessed of unlimited freedom of speech does not at all remove the right of persons to associate and organize.

I did wonder about that. Under my interpretation of your proposed amendment, I agree: people would be allowed to exercise their freedoms of assembly and speech just as they do now.* But some interpretations of that amendment would allow restrictions. What is corporate assembly if not a union strike?

* Exceptions include:
Time, place, manner [Heffron v. Society for Krishna Consciousness?]
Clear and present danger [Schenck v. United States]
Obscenity [Miller v. California]
Fighting words [Chaplinsky v. New Hampshire]

 

[CRGreathouse]

In other words, they'd be personally accountable for their own speech. They wouldn't be using an artificial person to voice their opinions and to take the heat for their opinions (in the event they committed libel, slander, etc).

So let's say I run a company that sells homeopathic remedies for the flu. I purchase a commercial slot (with the company's money, of course, and with the board's approval) saying that vaccines are unsafe, just to drive sales of my product. Everyone here agrees that I would be accountable for my choice (and, very possibly, the board as well). But are you suggesting that the company be immune to prosecution for my commercial (even if ___, where ___ is "knowingly false", "deceptive", etc.)?

 

[TheStatutoryApe]

So let's say I run a company that sells homeopathic remedies for the flu. I purchase a commercial slot (with the company's money, of course, and with the board's approval) saying that vaccines are unsafe, just to drive sales of my product. Everyone here agrees that I would be accountable for my choice (and, very possibly, the board as well). But are you suggesting that the company be immune to prosecution for my commercial (even if ___, where ___ is "knowingly false", "deceptive", etc.)?

Why would they be immune? Saying a corporation does not have unlimited freedom of speech in no way makes it unaccountable for what ever "speech" it makes. And by defining speech as a thing done primarily by actual people we also perhaps make it more likely that the actual people who plan and perpetrate such a crime as you describe would be held accountable instead of just the corporation.

 

[BobG]

you do not think "human being" is a reference to our species?

i have always understood it to be that person means something more than simply human being. otherwise, it would not be possible to perform partial birth abortions. the only thing that separates that human being from a person with rights is which side of the birth canal its head lies on. but, IANAL.

Until the mid-1800's the only thing separating a human being from a fetus was when it became "formed" or recognizably human, or in terms of when a "person" came into being, that is, infused with a "soul" or "animated." In practice, once the baby was moving, abortion was illegal, since it's impossible to discern the other stuff. (Roe v Wade, Section VI)

In the 1850's the American Medical Association started pushing for states to implement stricter anti-abortion laws. (This is also when religions started adopting more strict anti-abortion philosophies and "life begins at conception" point of view.)

In other words, if there ever was a consensus on that issue, it disappeared in the 20th century and the Supreme Court managed to avoid defining human life when it decided Roe v Wade. (They relied on common law, except for moving the point at which abortions could be banned from "first movement" to "viability".)

 

[CRGreathouse]

Saying a corporation does not have unlimited freedom of speech in no way makes it unaccountable for what ever "speech" it makes.

So perhaps we're not really in disagreement on this point, except in our use of language. Natural persons don't have unlimited free speech either (see the exceptions I listed above, for example).

And by defining speech as a thing done primarily by actual people we also perhaps make it more likely that the actual people who plan and perpetrate such a crime as you describe would be held accountable instead of just the corporation.

Dunno about that -- I think people like to sue companies because companies have money. If the CEO has a million dollars, you're going to win an amount roughly capped at a million dollars. If the company has a billion dollars...

I don't know what would be gained (or lost) by "defining speech as a thing done primarily by actual people". I just don't want to remove free speech or free press from organizations which rely largely on those things (newspapers, political parties, scientific organizations, etc.). I'm actually extremely reluctant to place limits on speech -- there are a lot of unexplored downsides here.

Again, I'm sensitive to the issue and I think I feel fundamentally the same way you do about the core issue (viz., corporations advertising politically). I'm certain that I would phrase my reasoning differently from you: it transforms profit-seeking (good!) corporations into rent-seeking (bad!) corporations. When it's easier to spend money to change the laws in your favor than to actually innovate, we've lost something. I also don't like companies spending their stockholders' money (or, for that matter, unions spending their dues) that way: it's an inefficient use of societal resources. But I'm wary of the unintended consequences of the solutions I've seen so far.

 

[TheStatutoryApe]

Yes -- even constitutional protections. Your proposed amendment would strip those constitutional protections, so that a normal law (218 + 61 + 1 or 291 + 67) could remove them.

How so? The press is specifically mentioned in the constitution. Their protections could not be removed so easily.

I think there would be a substantial chilling effect if a law was passed that said, "Newspaper corporations can't print news", even though the individual (and, presumably, soon-to-be-unemployed) reporters could report news on their own.

A newspaper is just a business. Printing a newspaper does not necessarily amount to speech in and of itself. As I noted it is generally the reporters that are the ones making the speech not the news organizations themselves. Are there articles where the author is noted as AP, Fox News, or Huffington Post? Or is it the author who is credited for the article? The corporation only provides a stage or venue for the speech to happen.

Yes, but now [that is, in the alternate present in which that amendment has been passed] a law that says, "Book publishers can't publish books", or "All material must be approved by the Department of the Kensor before being published (except by sole proprietorships or individuals)" is constitutional.

Same as above. You are taking this way out of context.

That seems a sketchy distinction. I can think of many odd situations involving it... but considering how differently seemingly-reasonable PF members interpret the present state of law, how multifariously do you expect the interpretations of that amendment would be?

Not very sketchy at all. The corporation is a 'legal individual' and so is capable of owning intellectual property. There are movies, books, ect where the original copyright of the material is held by corporations, as if it were the idea of the fictional entity, though we know that actual persons were the creators. There is a definite distinction between material produced by individuals and material produced by corporations. I imagine that it would be easy for a corporation to hire someone and request that they produce something and then tell that person to take credit for the idea but they would be giving up some of their control of the material that way.


sorry I missed this post earlier. I will have to come back to it later. Time to go.