Is Amendment XXVIII a Radical Restriction on Freedom of Speech?

[Skyhunter]

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.

I disagree with that assessment. The Washington Times' op-eds are constantly cited as sources in political discussions. Their "stories" are picked up by other right-wing media and parroted until eventually they are picked up by the MSM.. The Times was one of the original right-wing media outlets, and is still a huge contributor to the right-wing noise machine.

The nearly $2 billion the Times has lost has been repaid many times over by the prestige it affords Moon internationally. Through the Times, and the access it affords him to Republican lawmakers has helped Moon become a billionaire.

It always tickles me how the right wails and moans about the evil Soros, while spouting talking points from the Moonies.

BTW - Guess whose favorite newspaper was the Washington Times.

Betcha didn't know Ronald Reagan was a Mooney did you?

 

[Skyhunter]

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?

The Washington Times is a case in point.

 

[Skyhunter]

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 agree with Ivan that this has no bearing on R v.W. I disagree that we need an amendment to define a person.

The definition of a natural person already exists. What needs to be clearly defined, in order to reign in these corporate activist judges is the inferred rights of fictitious persons.

I think that should be easy. Fictitious persons have only those rights specifically granted by the laws that create these fictitious persons.

 

[mheslep]

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

Tend to be? What else could they be?

 

[mheslep]

* 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]

Nice summary of relevant First Amendment cases! What are you using for reference material CRG? Or have you been funding your posts in the math forum via your legal practice on the side?

 

[mheslep]

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

Jumping in here as this has come up before. Yes the press is specifically mentioned in the First A. just as speech is specifically mentioned. My take is the newly proposed amendment would revoke any first amendment protections for corporations, allowing, if a legislature (state or Congress) passed the law - no speech, no news gathering published as speech, no funding for, say, buses to assemblies - nothing protected under the first.

 

[Ivan Seeking]

I agree with Ivan that this has no bearing on R v.W. I disagree that we need an amendment to define a person.

The definition of a natural person already exists. What needs to be clearly defined, in order to reign in these corporate activist judges is the inferred rights of fictitious persons.

I think that should be easy. Fictitious persons have only those rights specifically granted by the laws that create these fictitious persons.

As I understand it, the court ruled that real people cannot limit the rights of fictitious people. I don't think anything besides a Constitutional Amendment can reverse this decision. They took away our right to regulate corporations in this respect. All laws violating this premise are moot.

We must be very careful, it may be possible to murder a corporation now. We don't want to engage in murder plots. That would be a crime.

 

[Ivan Seeking]

Jumping in here as this has come up before. Yes the press is specifically mentioned in the First A. just as speech is specifically mentioned.

And those rights are reserved to whom? Are we the people entitled to these rights, or was it intended that any and all artificial and exotic legal constructs of a person that we might imagine, are also entitled to those rights? May I make up another type of legal person who also has inalienable rights?

My take is the newly proposed amendment would revoke any first amendment protections for corporations, allowing, if a legislature (state or Congress) passed the law - no speech, no news gathering published as speech, no funding for, say, buses to assemblies - nothing protected under the first.

I wasn't aware that anyone was defending the original proposal. Are you arguing in general or specific terms?

 

[Hurkyl]

I'm curious now -- what benefit does incorporation bring to an assembly of people assembled for political purposes?

(This question isn't rhetorical -- I really want to know)

As I understand it, the court ruled that real people cannot limit the rights of fictitious people.

Real people couldn't before -- only Congress could.

 

[mheslep]

And those rights are reserved to whom? Are we the people entitled to these rights, or was it intended that any and all artificial and exotic legal constructs of a person that we might imagine, are also entitled to those rights? May I make up another type of legal person who also has inalienable rights?

I approach this differently. I don't view the main issue as one of giving rights to fictitious entities. A corporation is simply a financial device, something I might set up to hold investments for me and/or others granting certain liability limitations. As such, the issue of whether or not the Mheslep Corp acts as a person is meaningless to me. I similarly use, say, my home as an investment vehicle (in addition to shelter). I'm free to flip-out and sell that house to finance http://www.hillarythemovie.com/" " without worrying about whether or not my house has the right to free speech.

I wasn't aware that anyone was defending the original proposal. Are you arguing in general or specific terms?

I'm commenting on your XXVIII amendment, at least the last sentence in #117:
"All rights and powers reserved to the people are reserved only to real human beings. "
which has been under discussion at the moment with CRG, TSA, et al. I have other problems with it, but at the moment I'm addressing its application to the press. There have been a couple posts here imagining that because the First Amendment specifically mentions 'the press', then somehow the press is treated differently from speech by the Ivan Amendment. No, it is not. The english is simple enough and contains no modifiers.

 

[TheStatutoryApe]

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.

Why would it cause a power swing? As is the wealthy are just as capable as anyone else, if not more so, of creating a corporation to use for political purposes. Any advantage that the less than wealthy gain is easily negated especially if any corporation, including for profit corporations, are capable of throwing money at elections to try to get their [wo]man in.

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?

Then the amendment would need to be worded in such a fashion that will not be easily misinterpreted and used against individuals.
And note again that there is a difference between a corporation and the people who belong to it. That distinction is the whole point. I am not going to throw up my hands and allow the world to turn to treating corporations as though they have natural rights just because if someone really wanted to they could misinterpret the attempt at making a distinction and start stripping rights from individuals.

Jumping in here as this has come up before. Yes the press is specifically mentioned in the First A. just as speech is specifically mentioned. My take is the newly proposed amendment would revoke any first amendment protections for corporations, allowing, if a legislature (state or Congress) passed the law - no speech, no news gathering published as speech, no funding for, say, buses to assemblies - nothing protected under the first.

As a legal fiction corporations are not to have any rights not allowed them by the laws governing the formation, rights, and duties of corporations. As non-natural persons the constitution is not supposed to cover them except where otherwise specified. Laws can be, and have been, put in place to allow them rights appropriate to their function as a legal construct. So there is no reason to believe that suddenly all rights afforded corporations would evaporate simply because it has been clarified that only natural persons are naturally protected by the constitution.
And again, there is a difference between the actions of individuals and the actions of corporations. A reporter is an individual doing a job. They may be employed by a corporation but they are not necessarily acting as an agent of the corporation with their speech. Their speech is attributed to them as individuals and the corporation may be held responsible for abuse only because they are the reporter's employer and responsible for providing the venue for the abuse.

 

[CRGreathouse]

Then the amendment would need to be worded in such a fashion that will not be easily misinterpreted and used against individuals.

I was hoping that someone (you?) would propose a better wording so that it could be discussed here.

And note again that there is a difference between a corporation and the people who belong to it. That distinction is the whole point. I am not going to throw up my hands and allow the world to turn to treating corporations as though they have natural rights just because if someone really wanted to they could misinterpret the attempt at making a distinction and start stripping rights from individuals.

That distinction may be the whole point to you, but everyone else here is discussing financial interest in politics vs. limitations on 1st amendment rights. I feel that what is lost in the latter in your proposal does not make up for what is gained in the former. Like mheslep, I don't see corporations as anything more than devices to do something; I'm not concerned with what rights are imputed them, only what effect that has on real people. Your concern with that makes your concern rather than mine seem starry-eyed and unrealistic.

 

[mheslep]

So there is no reason to believe that suddenly all rights afforded corporations would evaporate simply because it has been clarified that only natural persons are naturally protected by the constitution.

That's been stipulated already (mainly by CRGr I believe) - the amendment doesn't change anything by itself - it is the future laws allowed by the amendment that could censure anyone acting via (or funded by) a corporation.

And again, there is a difference between the actions of individuals and the actions of corporations. A reporter is an individual doing a job. They may be employed by a corporation but they are not necessarily acting as an agent of the corporation with their speech. Their speech is attributed to them as individuals and the corporation may be held responsible for abuse only because they are the reporter's employer and responsible for providing the venue for the abuse.

That line is drifting into libel and slander law which I suppose is relevant but funding for political purposes is currently the top of the show bill. The closest press analogy I can conjure to Citizen's United's Hillary, The Movie film is a 'reporter' who broadcasts - on air or cable - some expose on a candidate. Both actions only take place with the funding of the backing corporation. Pull the plug on corporate involvement and both actions probably go away, the latter certainly does. Caveat: one might argue that the reporter didn't have a political motive but that's so subjective (and counter factual in today's media) as to be useless for any kind of legal foundation.

 

[TheStatutoryApe]

Like mheslep, I don't see corporations as anything more than devices to do something; I'm not concerned with what rights are imputed them, only what effect that has on real people.

The issues go hand in hand in my opinion. Corporations are supposed to simply be legal devices. They are becoming more than that. They are creating a social atmosphere where people do not question that they have rights, that they may own intellectual property, that they may influence the government to advantage corporations over individuals, and they can apparently manipulate elections. How does this not effect people?

The specific case that created this particular interest in the issue overturned a law designed to prevent corporations from attempting to swing (or "buy") elections. Do you not think that it can effect people such as you and me that now any corporation (including Pepsi, Coca Cola, Enron [if they still existed], ExxonMobile, ect) can swoop in in the last few weeks of an election when the candidates have already spent most of their money and drop a few million or so in advertising to shift the popular trend? Grisham wrote an interesting novel about a large corporation going to great lengths to illegally fund the election of a judge to a supreme court before their appeal on a tort case came before the court. Now we can just let them do it legally? and its unrealistic to think that this could be a problem?

 

[Proton Soup]

big corps have always been an issue, and the way we have dealt with them historically is to bust them up into smaller pieces when they get too big.

 

[TheStatutoryApe]

That's been stipulated already (mainly by CRGr I believe) - the amendment doesn't change anything by itself - it is the future laws allowed by the amendment that could censure anyone acting via (or funded by) a corporation.

Aside from this court decision that seems to indicate that corporations are possessed of natural rights like any real person such laws could have been, and have been, made already. A corporation has no rights except as prescribed by law. The court is now saying otherwise. Corporations now supposedly have defacto rights. THAT is what has changed. An amendment which clarifies the issue would only change things back to the way they were.

That line is drifting into libel and slander law which I suppose is relevant but funding for political purposes is currently the top of the show bill. The closest press analogy I can conjure to Citizen's United's Hillary, The Movie film is a 'reporter' who broadcasts - on air or cable - some expose on a candidate. Both actions only take place with the funding of the backing corporation. Pull the plug on corporate involvement and both actions probably go away, the latter certainly does. Caveat: one might argue that the reporter didn't have a political motive but that's so subjective (and counter factual in today's media) as to be useless for any kind of legal foundation.

From what I understand Citizens United were the principal creators of the film. That is to say that the film was corporate speech, it was not someone else's speech being funded by CU. It was also rather obviously being created specifically for political purposes. It seems to me a rather different situation than a reporter reporting the news.

 

[mikelepore]

the First Amendment shall not be construed to limit the authority of Congress and the States to define, regulate, and restrict the spending and other activity of any corporation, limited liability entity, or other corporate entity

Good idea. Corporations and all forms of limited-liability association were created by acts of government in the first place.

Without limited liability, for example, if a business were to pollute the environment, and it is discovered that the pollution shortens human life, then all of the stockholders of the company may go to prison for homicide. The capitalists didn't like the idea of the owners of businesses being legally responsible for the actions of their businesses, therefore government invented the artificial concept of limited liability. In 1909, the Marxist Daniel De Leon, a former Columbia law professor, commented that "nine-tenths of the corporations of the country have no reason for existence other than lifting someone above the law."

But whatever government creates out of thin air, government also has the right to regulate.

The corporations are the government's own Frankenstein monsters. It is hardly excessive for government to rein in its own monsters.

 

[mheslep]

From what I understand Citizens United were the principal creators of the film. That is to say that the film was corporate speech, it was not someone else's speech being funded by CU.

People were the principal creators of the film, and just a few of them. US citizens. They funded the thing out of the proceeds of this small corporation, which allowed, among other things, for them to insure that creditors couldn't seize their house, car, and kids college funds if the company went bust. So? What's the point of the labels?

It was also rather obviously being created specifically for political purposes. It seems to me a rather different situation than a reporter reporting the news.

Yes, the former was more straightforwardly and honest about being political.

Moot discussion. Any amendment that enables a "that's different, your speaker is political but mine is not so I can speak and you stifle" argument is never going anywhere in the US, won't carry a single state, nor should it.

 

[TheStatutoryApe]

People were the principal creators of the film, and just a few of them. US citizens. They funded the thing out of the proceeds of this small corporation, which allowed, among other things, for them to insure that creditors couldn't seize their house, car, and kids college funds if the company went bust. So? What's the point of the labels?

What is the point of making the film the creative property of a corporation rather than individuals?

Yes, the former was more straightforwardly and honest about being political.

Moot discussion. Any amendment that enables a "that's different, your speaker is political but mine is not so I can speak and you stifle" argument is never going anywhere in the US, won't carry a single state, nor should it.

The argument is "your speaker is a fictitious proxy for your political agenda but mine is a real person reporting the news as a service".

 

[Vanadium 50]

I'm curious now -- what benefit does incorporation bring to an assembly of people assembled for political purposes?

(This question isn't rhetorical -- I really want to know.)

One person might not be able to afford a printing press to make pamphlets promoting their political views, but 10 like-minded individuals together could. A corporation provides a legal framework for these people to act together.

 

[Ivan Seeking]

Funny!

Democrats and Tea Party Activists Find Common Ground
Katie Connolly

Zachary Roth at Talking Points Memo is reporting that tea partiers are railing against the Supreme Court decision in the Citizen's United case, which removed major restrictions on corporate spending on political campaigns. Running counter to RNC Chairman Michael Steele's praise of the decision, Dale Robertson, the leader of TeaParty.org told the Reid Report:..

http://blog.newsweek.com/blogs/thegaggle/archive/2010/02/03/democrats-and-tea-party-activists-find-common-ground.aspx

Maybe the tea party movement can find common ground with President Obama's agenda..

http://www.chicagotribune.com/news/opinion/ct-oped-0127-page-20100126,0,5726772.column

The logic for the rights enjoyed by a corporation is based in the argument that by denying rights to the corporation, the rights of those who comprise the corporation, financially, are denied. So, the government cannot excute unreasonable searches, confiscate land, deny due process, or in any way violate the rights of the shareholders. However, in the case of limiting political speech, the rights of the shareholders are not denied because they do not have a democratic voice in the process. In fact, there is no guarantee that shareholders would even be aware of political spending by the company. The assumption seems to be that having common economic interests constitutes a legal agreement to allow political representation. I don't sign onto a political agenda when I buy stock, nor do the companies in which I own stock represent my views. Speaking as a stockholder, my rights are being violated if the company speaks for me without my permission. So whose rights are we trying to protect here. I own stock in a number of companies and that is where our relationships end. By protecting free speech of the corporation, my rights are certainly not being protected. Instead we are giving the elite few who run the company a voice funded by many, without the approval or permission of the many.

Or, is it the opinion here that financial investements should automatically require that one surrender their rights to the political objectives of the company of interest? If I want to invest in widgets by investing in a publically held company, I also have to invest in the X political party or agenda; an agenda that could represent the political objectives of only a few people, or one person, or perhaps even no one?

 

[Hurkyl]

I don't sign onto a political agenda when I buy stock
...
If I want to invest in widgets by investing in a publically held company, I also have to invest in the X political party or agenda;

This whole argument makes it sound like you are trying to use legislation as a back-door means to coerce your investments to behave the way you want rather than, I don't know, using whatever privileges your holdings grant you, or by withdrawing your $$$ if you dislike its behavior.

 

[BobG]

The assumption seems to be that having common economic interests constitutes a legal agreement to allow political representation. I don't sign onto a political agenda when I buy stock, nor do the companies in which I own stock represent my views. Speaking as a stockholder, my rights are being violated if the company speaks for me without my permission.

This is the logic behind including unions in the ban on financing political speech. If a majority of the employees have established a union, all employees wind up contributing union dues whether they wanted a union or not.

In both situations, either the stockholders or the employees can quit if they disagree with the actions of the corporation or union, but that's something they can do to prevent future conflicts. They had no choice in how money they already contributed was spent and they have no way to recover money that was spent for something they didn't want to do.

I think I only partially agree with that logic. If a corporation or union suddenly starts a broadcast campaign for or against abortion, I think you could say they're doing something none of the stockholders or employees could have anticipated and that they'd have a right to be upset about how their money was being spent. If a corporation or union was supporting or opposing an issue that affected the company's profits/losses or employee taxes, etc, then the corporation or union is performing normal functions that they were delegated to do, whether or not the stockholder/employee agreed with that particular action.

In other words, that line of logic takes you to a point where an employee might strongly believe his company can't be trusted and wants pay raises now; not a promise of retirement benefits in the future. The union might feel getting a promise of retirement benefits in the future is more attainable than getting pay raises now. The union taking an action the employee doesn't agree with doesn't mean the employee's rights have been violated and that his union dues should be refunded to him.

Banning a corporation/union from political speech at least is a ban on something that lies only on the edge of what a corporation/union might do, since making political speeches isn't a core function of either, but it's not a perfect line of logic, either. In other words, if it's legal, then I'd expect both to dabble in it at least a little.

I still think this centers on voters' rights more than the rights of corporations, stockholders, or employees.

Is corporate money distorting the elections for the voters or is the ban denying the voters valuable information?

 

[Skyhunter]

One person might not be able to afford a printing press to make pamphlets promoting their political views, but 10 like-minded individuals together could. A corporation provides a legal framework for these people to act together.

And the law affords them the opportunity to create a http://en.wikipedia.org/wiki/527_Organization"

 

[mheslep]

What is the point of making the film the creative property of a corporation rather than individuals?

Again:

which allowed, among other things, for them to insure that creditors couldn't seize their house, car, and kids college funds if the company went bust.

 

[Hurkyl]

One person might not be able to afford a printing press to make pamphlets promoting their political views, but 10 like-minded individuals together could. A corporation provides a legal framework for these people to act together.

What, exactly, does it provide? I can speculate at details, but I would some non-speculative knowledge here.

 

[mheslep]

...Marxist Daniel De Leon, a former Columbia law professor, commented that "nine-tenths of the corporations of the country have no reason for existence other than lifting someone above the law." ...

Don't you find a contradiction in citing a representative of Marxist philosophy, which has the stated goals of destroying all sense of the individual, in support of an individual rights amendment?

 

[Skyhunter]

Don't you find a contradiction in citing a representative of Marxist philosophy, which has the stated goals of destroying all sense of the individual, in support of an individual rights amendment?

Where does Marx state such goals in his philosophy?

Also, it is a fallacy to attack the source instead of addressing substance.

 

[mheslep]

Where does Marx state such goals in his philosophy...

It is prominent throughout the http://www.marxists.org/archive/marx/works/download/manifest.pdf"

[The Proletariat] have nothing of their own to secure and to fortify; their mission is to destroy all previous securities for, and insurances of, individual property.

And the abolition of this state of things is called by the bourgeois, abolition of individuality and freedom! And rightly so. The abolition of bourgeois individuality, bourgeois independence, and bourgeois freedom is undoubtedly aimed at.

From the moment when labor can no longer be converted into capital, money, or rent, into a social power capable of being monopolized, i.e., from the moment when individual property can no longer be transformed into bourgeois property, into capital, from that moment, you say, individuality vanishes.

You must, therefore, confess that by "individual" you mean no other person than the bourgeois, than the middle-class owner of property. This person must, indeed, be swept out of the way, and made impossible.

 

[TheStatutoryApe]

Again:

Those things have nothing to do with one another. Publishers and production companies produce material based on manuscripts created by individuals all the time. I have no doubt that they have protection from liability despite not being the creator of the material themselves and that the individual creators have no liability for debt incurred by the production companies.

So, again, what is the point of copyrighting the material in the name of the corporation? Do you think it may have something to do with the fact that they were targeting a politician who might attempt to sue them for slander and libel? Perhaps they wanted her to have to sue the corporation and not be able to sue the individuals responsible?

 

[Skyhunter]

It is prominent throughout the http://www.marxists.org/archive/marx/works/download/manifest.pdf"

Marx is advocating the destruction of bourgeois individuality, not all sense of the individual.

I am not arguing for or against, just trying to keep it real.

 

[mheslep]

Those things have nothing to do with one another.

They do. The makers of the film need to raise money to make the film, which they intend to sell later for an income. As this entails risk, they incorporate, so that if the enterprise fails bad things don't happen to their personal assets. So then the C.U. Incorporated sends its financial officer off goes to, say the bank, to raise money to make the film. What does the new Inc. offer in the way of an asset for the new capital? Title to the film. If CU Inc fails to repay its loans, the creditors, who loaned to CU Inc, can seize rights to the film.

 

[TheStatutoryApe]

They do. The makers of the film need to raise money to make the film, which they intend to sell later for an income. As this entails risk, they incorporate, so that if the enterprise fails bad things don't happen to their personal assets. So then the C.U. Incorporated sends its financial officer off goes to, say the bank, to raise money to make the film. What does the new Inc. offer in the way of an asset for the new capital? Title to the film. If CU Inc fails to repay its loans, the creditors, who loaned to CU Inc, can seize rights to the film.

Still does not require that the corporation be the one to hold the original copyright. It only needs to possesses rights transferred by the original copyright holders.

 

[Skyhunter]

They do. The makers of the film need to raise money to make the film, which they intend to sell later for an income. As this entails risk, they incorporate, so that if the enterprise fails bad things don't happen to their personal assets. So then the C.U. Incorporated sends its financial officer off goes to, say the bank, to raise money to make the film. What does the new Inc. offer in the way of an asset for the new capital? Title to the film. If CU Inc fails to repay its loans, the creditors, who loaned to CU Inc, can seize rights to the film.

That is a bad example. CU is a 501c4 corporation. A 501c4 is not formed to protect the individuals, they are formed for the promotion of social welfare. Unlike 501c3's, a 501c4 can lobby for legislation and participate in campaigns.

Interestingly, they could have aired the ads. All they needed to do in order to comply with the law was reveal the source of their funding.

Without a disclosure requirement, foreign interests could fund 501c4's, and even completely control them anonymously.

 

[mheslep]

That is a bad example. CU is a 501c4 corporation. A 501c4 is not formed to protect the individuals, they are formed for the promotion of social welfare. ...

That confuses the qualifying legal requirements for some types of corporations with the basic definition of any type of corporation: An entity that has http://dictionary.reference.com/browse/corporation" My example shows the definition in play, and applies to any type of corporation. The fact that there are many different type of non profit corporate charters that grant additional tax benefits, etc, does not change the basic idea of what a corporation is.