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

[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.

 

[Skyhunter]

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.

Why cherry pick the definition?

I think that creates more confusion than defining non profits. Better to post the entire definition and highlight. (not everyone clicks links)

an association of individuals, created by law or under authority of law, having a continuous existence independent of the existences of its members, and powers and liabilities distinct from those of its members.

I prefer the informal definition:

Informal. a paunch; potbelly.

 

[Ivan Seeking]

Bill Moyers provided a personal commentary on this issue, at the end of his show last Friday.

BILL MOYERS: Over the course of a long career in journalism, I've covered this story of money in politics more than any other. From time to time, I've been hopeful about a change for the better, but truth is, it just keeps getting uglier every year.

Those who write the checks keep buying the results they want at the expense of the public. As a reputedly self-governing democracy, we desperately need to address the problems that we‘ve created for ourselves, but money makes impossible the reforms that might save us.

Nothing in this country seems to be working to anyone's satisfaction except the wealth machine that rewards those who game the system. Unless we break their grip on our political institution, their power to buy the agenda they want no matter the cost to everyone else, we're finished as a functioning democracy.

In this I am sympathetic to the people who show up at tea party rallies asking what happened to their jobs, their pensions, their security — the America they believed in. What's happened, says the political scientist Sheldon Wolin, is the increasing cohabitation of state and corporate power.

This is why I find the supreme court ruling so preposterous and ominous. Five radical judges have taken a giant step toward legitimating the corporate takeover of democracy. "One person, one vote" — stop kidding yourself. As I once heard a very rich oilman tell congress after he paid $300,000 to the democratic party to get a moment of President Clinton's ear, "Money is a bit more than a vote." The huge sums of money that already flood our elections will now be multiplied many times over, most likely in secret.

Just this week, that indispensable journalistic website Talking Points Memo.com reported that an influential Washington lobbying firm is alerting corporate clients on how to use trade associations like the Chamber of Commerce as pass-throughs to dump unlimited amounts of cash directly into elections. They can specifically advocate or oppose a candidate — right up to election day — while keeping a low profile to prevent "public scrutiny" and negative press coverage. We'll never know what hit us, and like the titanic, we'll go down but with even fewer lifeboats.

http://www.pbs.org/moyers/journal/02192010/transcript4.html

I agree completely with Mr. Moyers. We are being sold out and tricked to believe, through blind ideology, that it is in our own best interest.

 

[mheslep]

Bill Moyers provided a personal commentary on this issue, at the end of his show last Friday.

http://www.pbs.org/moyers/journal/02192010/transcript4.html
[...]

Bill Moyers calling SC judges radical? Whatever. I find his argument unconvincing. He cites a personal donation from an oilman, having nothing to do with corporations, as a reason for the evils of corporate funding. Regarding secrecy, he piles on the same train of those blaming the courts for not doing the job of Congress. Congress has every authority to demand every dime contributed be reported, and posted on the net if they like. Congress should do so.

 

[Ivan Seeking]

Bill Moyers calling SC judges radical? Whatever. I find his argument unconvincing. He cites a personal donation from an oilman, having nothing to do with corporations, as a reason for the evils of corporate funding. Regarding secrecy, he piles on the same train of those blaming the courts for not doing the job of Congress. Congress has every authority to demand every dime contributed be reported, and posted on the net if they like. Congress should do so.

"Radical" is precisely the right word [nice pun in that one!]. That is the word used when you overturn a century of law. How is that not radical? It is both liberal and radical.

And what "argument" do you find to be unconvincing? He was stating an opinion based on his long career in journalism.

 

[Hurkyl]

And what "argument" do you find to be unconvincing? He was stating an opinion based on his long career in journalism.

So there is no argument? Maybe that's why it's unconvincing!

 

[russ_watters]

"Radical" is precisely the right word [nice pun in that one!]. That is the word used when you overturn a century of law. How is that not radical? It is both liberal and radical.

It's not radical because it fits the intent of the Constitution. It was radical when 40 years ago (or whenever that case was that was overturned...) the USSC made a decision not in fitting with the Constitution. It is not radical to fix the error.

The founding fathers may have been radical when they wrote the 1st Amendment, but it isn't radical to uphold it now.

He was stating an opinion based on his long career in journalism.

That's hilarious, Ivan. I can't believe you used that as an argument! That could take us into a big discussion about the huge problem that is an activist media! (Oh wait, we already have that discussion: Fox=activist conservative = bad, Everyone else=activist liberal = good...right). I'm confused, though - how is the USSC so broken that they didn't consult the experts in the media before making their decision? Ehh, I guess we could fix that by appointing reporters to the bench of the USSC from now on.

In all seriousness, though, why post a rant with no relevance? I've already linked the opinions of the foremost subject matter experts for you to base an argument on (the dissenting opinion of the USSC). And if you want 3rd party opinions, at least go for one that actually addresses the issue. Nowhere in that rant does he mention the Constitution or the 1st Amendment. He doesn't like the way things work now? Fine. But if he wants to change it, he has to show that the change fits with the Constitution (or argue that we amend it).

What boggles my mind is that on this issue liberals are in favor of a pretty radical restriction in freedom of speech. That seems to go against the general idea of liberalism. I'm thinking that the reason people such as Moyers make no relevant arguments is that they don't want to go down that road, so they pretend their position doesn't take us there. It's easier to convince people to give up their liberty if you argue it obliquely.