News Is Amendment XXVIII a Radical Restriction on Freedom of Speech?

[Hurkyl]

That is an interesting point. Due to the nature of the problem - excessive influence in elections by non-human "persons" - it is conceivable that we have a finite window of opportunity to reverse the damage before it's too late.

Hey, isn't a "person" defined to be a human? [Heh, I checked and it is the first definition.] ... not according to the SC. There is neoconservative logic for you.

http://www.sec.gov/about/laws/sa33.pdf

(I do not know if there is older law defining the term "person")

What was the point of that second paragraph anyways?

 

[BobG]

http://www.sec.gov/about/laws/sa33.pdf

(I do not know if there is older law defining the term "person")

I'm sure there is. Laws often have to define the terms they use, since they're using the terms for one specific purpose within that particular law. That doesn't establish a new definition for the word itself. In other words, that definition is only valid within that particular text.

It's similar to defining the variables in a physics problem.

In this case, for this law, ...

Let "person" = "an individual, a corporation, a partnership, an association, a joint-stock company, a trust, any unincorporated organization, or a government or political subdivision thereof"

It makes the text easier to read if you only use one word instead of writing out all 9 entities the law pertains to over and over throughout the document.

A more general definition from an 1856 law dictionary (A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856). The example you gave would fall under item 3.

PERSON. This word is applied to men, women and children, who are called natural persons. In law, man and person are not exactly synonymous terms. Any human being is a man, whether he be a member of society or not, whatever may be the rank he holds, or whatever may be his age, sex, &c. A person is a man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes. 1 Bouv. Inst. n. 137.
2. It is also used to denote a corporation which is an artificial person. 1 Bl. Com. 123; 4 Bing. 669; C. 33 Eng. C. L R. 488; Woodes. Lect. 116; Bac. Us. 57; 1 Mod. 164.
3. But when the word "Persons" is spoken of in legislative acts, natural persons will be intended, unless something appear in the context to show that it applies to artificial persons. 1 Scam. R. 178.
4. Natural persons are divided into males, or men; and females or women. Men are capable of all kinds of engagements and functions, unless by reasons applying to particular individuals. Women cannot be appointed to any public office, nor perform any civil functions, except those which the law specially declares them capable of exercising. Civ. Code of Louis. art. 25.
5. They are also sometimes divided into free persons and slaves. Freemen are those who have preserved their natural liberty, that is to say, who have the right of doing what is not forbidden by the law. A slave is one who is in the power of a master to whom he belongs. Slaves are sometimes ranked not with persons but things. But sometimes they are considered as persons for example, a negro is in contemplation of law a person, so as to be capable of committing a riot in conjunction with white men. 1 Bay, 358. Vide Man.
6. Persons are also divided into citizens, (q.v.) and aliens, (q.v.) when viewed with regard to their political rights. When they are considered in relation to their civil rights, they are living or civilly dead; vide Civil Death; outlaws; and infamous persons.
7. Persons are divided into legitimates and bastards, when examined as to their rights by birth.
8. When viewed in their domestic relations, they are divided into parents and children; husbands and wives; guardians and wards; and masters and servants son, as it is understood in law, see 1 Toull. n. 168; 1 Bouv. Inst. n. 1890, note.

Obviously, "older" is not always better, since quite a few of these definitions are obsolete, except in the context of understanding laws, or constitutional wording, that's even older than these definitions.

 

[CRGreathouse]

I am uncertain why it is that you would prefer to hold a fictitious person liable for the crimes of real individuals.

That's not what I said at all.

 

[BobG]

Let's say that a corporation yells "Fire!" in a crowded theatre -- or more to the point, it makes absurd and damaging false claims that incite panic. I would want to be able to hold the corporation responsible for that act, not just the board of directors and the corporate scapegoats. Are you suggesting that the corporation be granted immunity in such cases?

I am uncertain why it is that you would prefer to hold a fictitious person liable for the crimes of real individuals.

That's not what I said at all.

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? Is there some specific persons facing prison time or fines? 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).

 

[BobG]

In times of crisis, a President can nationalize a corporation - thus revoking its so-called Constitutional rights. What is the equivalent legal action wrt to a person?

The draft.

 

[Ivan Seeking]

The draft.

True in a sense, but higly constrained. Also, I don't think a company can refuse nationalization. It has no rights in that sense. A person can opt to serve their time in jail.

I wanted to post this response from one of my Senators. Apparently he has received enough emails to justify a specific response.

Thank you for contacting me to share your views about the recent United States Supreme Court decision that affects our campaign finance laws. It is an honor to serve as your Senator, and I appreciate hearing from you.

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. 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.

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.

Thank you, again, for sharing your thoughts with me. I hope you will continue to keep me informed about the issues that matter most to you.

All my best,
Jeff Merkley
United States Senate

Go Senator Merkley!

 

[Hurkyl]

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

 

[Hurkyl]

Attempting to preempt misunderstanding... for the purpose of this (and my previous) post, I don't care what his politics are.

The role of the SCOTUS is, in principle anyways, to judge what the law actually says in the most difficult court cases.

But look at the reason Senator Merkley gives for disagreeing -- it's because he's troubled by perceptions and consequences, and has nothing to do with the law.

 

[mheslep]

Go Senator Merkley!

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

 

[Ivan Seeking]

Attempting to preempt misunderstanding... for the purpose of this (and my previous) post, I don't care what his politics are.

The role of the SCOTUS is, in principle anyways, to judge what the law actually says in the most difficult court cases.

But look at the reason Senator Merkley gives for disagreeing -- it's because he's troubled by perceptions and consequences, and has nothing to do with the law.

He is troubled for the same reason that I am: This threatens the democratic process. This is not just politics; it is about protecting the essence of democracy. This is why there are calls for a Constitutional Amendment to protect our system of government by The People. It may be that the five SC justices indeed honored the letter of the law; that all who came before, including other SC justices, were in error, however that is not the point. We do have the right and the responsibility to amend the Constitution when needed. What is your point, exactly, that we should yield power to corporations and even foreign interests based on some bizarre interpretation of the right to free speech?

The Constitution is all about consequences. "Consequences" are why we have Constitutional protections.

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

He clearly understands the problem - that there is a HUGE problem - and intends to act. It may be foolish for him to engage in discussion of any specifics until some sort of consensus has been reached among the Dems in Congress. Whether he acts or not, we will see. The fact is that his website specifically asked if a response is requested. I checked the "No" option. Yet, not only did I receive an acknowledgment of my email, it was a highly targeted response. For now, I could hardly ask for more beyond a personal letter or phone call.

If he follows through, it will count heavily in his favor in the next election. If he leads the charge, I may becomes a loyal fan and do what I can to help to fund his next election; provided that contributions from us real people still matter.

 

[Ivan Seeking]

I would like to know how an open door to excessive domestic and foreign corporate influence in our election process serves the people, the process, or the country. What exactly would we be protecting if the democratic process itself serves no useful purpose?

I find this entire discussion to be surreal. Ideology has been taken far beyond absurdity.

I would also point out that by stare decisis, the court's decision is anything but conservative. By overturning a century of law, this is about as liberal as it gets when it comes to a court decision. Conservatives? What a joke!

 

[mheslep]

I would like to know how an open door to excessive domestic and foreign corporate influence

I don't follow how this recent decision is suddenly an open door for influence, when we have had billionaires like Soros on a crusade donating http://en.wikipedia.org/wiki/George_Soros#United_States" of dollars to political action causes over the last few years without similar complaint?

 

[Hurkyl]

What is your point, exactly
...?

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.

 

[Ivan Seeking]

I don't follow how this recent decision is suddenly an open door for influence, when we have had billionaires like Soros on a crusade donating http://en.wikipedia.org/wiki/George_Soros#United_States" of dollars to political action causes over the last few years without similar complaint?

Tens of millions for many causes? You think that is excessive influence? How about a billion for a critical 60th seat in the Senate, bought and paid for by non-citizens. You tell me precisely how far the influence could reach given no limits. What are the limits of virtually infinite funding for disinformation campaigns that serve only multinational corporate interests, and in no way serve the interests of the American people.

I don't know anything about Soros so I would have to look at what he has been doing before making a specific comment. I may well object to his level of influence as well.

However, your premise is seriously flawed. Remember that five people overturned a century of law. Many people, including me, Democrats, and Republicans alike, have been worried and complaining about excessive influence for a very long time. That is why we had laws like McCain-Feingold - a bipartisan effort - which was overturned by this decision.

 

[mheslep]

Tens of millions for many causes? You think that is excessive influence?

That's from just one single individual, and what many causes? Soros said he had one primary goal: beating Bush. I'm not concerned at the moment about Soros' influence. I'm concerned that the complaints raised in this thread are really about funding for a particular viewpoint.

How about a billion for a critical 60th seat in the Senate, bought and paid for by non-citizens.

Apparently you are speaking hypothetically? I wasn't. Again my question was why the sudden concern? Why don't you think a billion could go to political action for a Senate seat the day before the Citizens United case?

You tell me precisely how far the influence could reach given no limits. What are the limits of virtually infinite funding for disinformation campaigns that serve only multinational corporate interests, and in no way serve the interests of the American people.

Substitute George Soros, or Hollywood mega stars, or trial lawyers, or ACORN for corporate interests then we can talk. Interesting side note on Hollywood. Former Sen Hollings (D-SC ) (39 years) gave an interview in which he said, paraphrasing: given his semi liberal views, in his state South Carolina he had no prayer of raising the cash he needed year after year. So he made regular trips out to Hollywood to pass the hat.

Remember that five people overturned a century of law.

That's an assertion from the President, not a fact, which I don't accept.

Many people, including me, Democrats, and Republicans alike, have been worried and complaining about excessive influence for a very long time.

Well, in this thread, I have not see a good case for a politically agnostic complaint about influence. The thread topic is an amendment to the US constitution of all things, that somehow wasn't necessary to stop the prior billions donated under McCain Feingold, or proposed in response to the http://www.pbs.org/newshour/vote2008/reportersblog/2008/12/obama_campaign_fundraising_tot.html" g.

 

[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.