Is Amendment XXVIII a Radical Restriction on Freedom of Speech?

[mheslep]

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

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

 

[Ivan Seeking]

you looking to overturn Roe v. Wade ?

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

 

[mheslep]

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

So does speech.

 

[Ivan Seeking]

So does speech.

And that right is reserved to whom?

 

[Ivan Seeking]

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

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

 

[BobG]

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

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

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

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

 

[Proton Soup]

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

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

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

 

[CRGreathouse]

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

Just a radical liberal notion of mine.

Objections?

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

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


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

 

[TheStatutoryApe]

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

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

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

 

[BobG]

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

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

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

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

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

 

[TheStatutoryApe]

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

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


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

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

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

 

[BobG]

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

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

 

[Proton Soup]

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

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

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

 

[TheStatutoryApe]

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

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

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

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

 

[CRGreathouse]

The press already has protections.

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

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

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

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

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

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

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

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

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

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

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

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

 

[CRGreathouse]

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

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

 

[TheStatutoryApe]

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

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

 

[BobG]

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

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

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

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

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

 

[CRGreathouse]

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

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

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

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

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

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

 

[TheStatutoryApe]

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

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

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

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

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

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

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

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


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

 

[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.