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March 02, 2018

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Time to watch "Planet of the Apes" again!

Corporations do not deserve the Constitutional protections that belong to natural human persons.

That's my point.

And I'm totally on board with that. It's going further that I have reservations about.

Trump is a good wealth-extractor, er ... I mean, businessman.

http://theweek.com/speedreads/759755/trump-charged-hundreds-thousands-dollars-last-year-campaign-use-virtually-empty-room-trump-tower

On the other hand...

"Fifty-four years ago today, the Supreme Court issued its landmark First Amendment ruling in New York Times Co. v. Sullivan. At issue was a libel complaint filed by Montgomery, Alabama, City Commissioner L.B. Sullivan against the New York Times Company because the Times had run a full-page advertisement that charged Montgomery police with violating the rights of civil rights activists."
Today in History: SCOTUS Protects the Corporate Speech Rights of The New York Times: Marking the 54th anniversary of New York Times Co. v. Sullivan

FWIW, corporations have been around a long time, and have at various times in their existence been *extremely* limited in scope. And have existed without having the natural, inalienable rights that we recognize in natural persons, recognized in them.

They still don't. They have some but not all of those rights. Due process, some but not all First Amendment rights, some but not all rights of the accused, no right to vote, right to trial by jury, right to confront hostile witnesses and accusers, due process. No part of the census for proportional representation. I'm not sure they have the right to refuse to incriminate. I just responded to a full-on grand jury subpoeana to one of my clients and my criminal lawyer told me we had not 5th amendment rights.

It's the 1st Amendment and handing out the money that gets up some folks' nose. That wasn't the case back when the NAACP absolutely needed anonymity to do its job. It was right then and right now, even though I much prefer the NAACP's side of the story than I do Goldman Sachs'. Some don't like the Kochs, others don't like Soros. Some don't like the New York Times, others don't like Fox News. Whatever. Public figures and politicians have no business deciding what is a legitimate journalistic voice and what is not. I don't like a certain party taking buses to old folks' homes, filling the buses up and taking everyone down to early vote with instructions to pull the straight party lever for a particular party. But, it's legal and the societal cost of trying to write a law that makes it illegal is too great. So, I live with it. We live with a lot of stuff we don't like because we are a basically free society.

Government has no business suppressing speech under any circumstances, which was the point of Citizens United.

Government has no business suppressing speech under any circumstances,

Libel? Slander? Blackmail?

Incitement to imminent violence/fighting words? Copyright? Obscenity?

False advertising? Threats?

I mean, there are a bunch of restrictions on speech, no? Some with more basis in the Constitution (copyright) than others (libel).

Moreover, there are other values/rights at stake in the campaign finance debate other than speech, thus there needs to be some balancing, one would think.

I mean, there are a bunch of restrictions on speech, no? Some with more basis in the Constitution (copyright) than others (libel).

There is prior restraint, i.e. straight up censorship, and post-speech remedies (civil and criminal) in very limited circumstances, none of which were remotely at issue in Citizens United, which was clearly the topic in CU. Prior restraint/censorship of political speech is never the province of government whether it's a private citizen acting in that capacity or a group of private citizens using the corporate form to advance their views anonymously while also seeking to avoid being hounded out of their jobs by an intersectionalist twitter mob.

Prior restraint/censorship of political speech is never the province of government whether it's a private citizen acting in that capacity or a group of private citizens using the corporate form

And yet the latter sort of thing was upheld as recently as 2003, only to be overturned in 2009 in CU (after Roberts/Alito replaced O'Connor and Rehnquist), from the syllabus to Citizens United:

In McConnell v. Federal Election Comm’n, 540 U. S. 93, 203–209, this Court upheld limits on electioneering communications in a facial challenge, relying on the holding in Austin v. Michigan Chamber of Commerce, 494 U. S. 652, that political speech may be banned based on the speaker’s corporate identity.

You may have the better view (or not), but let's not pretend this has "never" been the province of government, here or (especially) elsewhere.

the notion that corporations have free speech rights (and that money is speech) are both recent inventions. there's nothing natural about either (in the sense of the natural rights the Founders were concerned with).

also: every poor put-upon white, male, conservative Christian should intuitively know what "intersectionalism" is about. i get how such a person might not like that other people would speak up about the various forms discrimination they face in their own lives. but still.

Ugh: "
You may have the better view (or not), but let's not pretend this has "never" been the province of government, here or (especially) elsewhere."

Me, repeating myself for clarity purposes: Prior restraint/censorship of political speech is never the province of government whether it's a private citizen acting in that capacity or a group of private citizens using the corporate form to advance their views anonymously while also seeking to avoid being hounded out of their jobs by an intersectionalist twitter mob.

Spending limits are not prior restraint and are not censorship, at least not in the form directly before the court in CU. I realize the argument is that spending limits are an attenuated form of prior restraint, and, as a 1st Amendment enthusiast, I'm on board with that, i.e. I agree it is an attenuated form of prior restraint and is constitutionally prohibited. But, straight up censorship of political speech is not/should never be a governmental function in a free society.

But let's say the feds lock some one up or close down a television station or a newspaper to silence them on a matter of political speech: is that in any way constitutional? Ever? How do you square that with 1st A? With just a generic notion of a free society?

i get how such a person might not like that other people would speak up about the various forms discrimination they face in their own lives. but still.

I agree. It is totally fine to define disagreement with intersectionalism as hate speech and twitter mob an employer until the bigot is fired. Once everyone understands that if they don't get on board with the right-thinking intersectionalists, they will starve along with their families, the world will be a much better place.

this is the part where i would normally look up a bunch of examples of wingnut internet mobs causing people to lose their jobs, which you would then ignore.

so let's just skip that part.

it's nice that you've learned a new word, though.

Well you started with the following, which was what I initially responded to:

Government has no business suppressing speech under any circumstances, which was the point of Citizens United.

Thus focusing on CU, then you mentioned trying to differentiate b/t individuals and corporations, which was also part of CU, so I responded with the prior case law saying that was just fine.

But this:

But, straight up censorship of political speech is not/should never be a governmental function in a free society. But let's say the feds lock some one up or close down a television station or a newspaper to silence them on a matter of political speech: is that in any way constitutional? Ever? How do you square that with 1st A? With just a generic notion of a free society?

I agree that that would be bad, though I think we've reached that point in some terrorism cases, and possibly in the matter of wikileaks.

OTOH, would you say Dinesh D'Souza was locked up (in a way) on a matter of political speech? Can we or can we not have campaign finance laws?

I'd also argue that locking someone up for leaking national security information is a 1st A violation.

We should not confuse the actual case of Citizens United and the far-reaching conclusions SCOTUS drew from that. On a pure constitutional base CU should have won its original case because their actions were ethically highly questionable but nonetheless covered by the 1st Amendment.
What SCOTUS made of that is a different thing and imo counts as an abomination.
A properly composed court in the future should overturn that part while leaving the specific case decision standing.

it's nice that you've learned a new word, though.

Just using the word in a sentence doesn't mean they know what the word means...

"Just using the word in a sentence doesn't mean they know what the word means."

Unnecessary, really.

How so? McKinney has said several times that he doesn't know wnat intersectionalism is or means, so it's more than a bit ironic that he's deploying it as a pejorative. I really doubt he's taken any time to enlighten himself about the term. He's like an anti-vaxxer looking thru medical research.

If he had any interest in it, I'd be happy to talk about it as I think several others would. But deploying it as a way of trying to make an argument without understanding what it means is off. I mean, we all shoot the shit from time to time, but to do it to pick a fight? Like (this is from memory) 'all medical advances are because of the free market' or the latest '[the] Government has no business suppressing speech under any circumstances' is not an attempt at discussion, it's just bullshit and should be classified as such. cf this

And it is certainly not just conservatives who do this, here's an example of a person often esteemed by liberals doing the same thing.

https://www.thenation.com/article/waiting-for-steven-pinkers-enlightenment/

Thing is, I don't have to buy Pinker's book, but I do have to clean up after McKinney's shooting the [bull]shit arguments. I realize that it may cramp some folks style to realize that the way they argue, which may be perfectly fine where they work, is not really appreciated or wanted, but it would be nice if some awareness could be stumbled upon.

but I do have to clean up after McKinney's shooting stirring the [bull]shit arguments

FTFY.

Well, *I* don't know what "intersectionalism" is, either; but don't try to construct arguments based on it.

It might have something to do with quantum decoherence. Or backwards-masking algorithms. Maybe both. Every field has its own impenetrable jargon.

So that the initiates can point and laugh "Yer d00n it rong!" Which is worth it for its own sake.

Just using the word in a sentence doesn't mean they know what the word means...

true!

i should've said "learned a new way to sound like you listen to Sean Haannity too much"

We should not confuse the actual case of Citizens United and the far-reaching conclusions SCOTUS drew from that.

thank you.

for the record, i am and have long been fine with natural human persons engaging in political speech when acting collectively under the corporate form, when the corporation is created *for that purpose*.

and, the US code has a finely wrought taxonomy of corporate types to account for that.

the rights belong to the humans involved.

as far as NYT v Sullivan, I don't see that a corporate right to free speech is required. The NYT doesn't have an opinion, it doesn't engage in speech, it doesn't say anything. it owns a lot of capital stock, it employs people and it marhals those resources to manufacture newspapers for sale.

the *editorial board of the NYT*, natural persons all, are entitled to publish their collective opinion in the pages of the NYT or any other paper and to enjoy 1st A protection while doing so.

"the *editorial board of the NYT*, natural persons all, are entitled to publish their collective opinion in the pages of the NYT or any other paper and to enjoy 1st A protection while doing so."

I am at a loss as to why the Editorial Board of the N.Y. Times is different than the board IBM or Google or the owner of Hobby Lobby, natural persons all.

Or are you saying those natural persons only have that one right?

using campaign email to pay your hooker bills?

swamp drainin!

heh. not campaign. organization. (which Cohen has also previously denied)

oh shit.

i'm going back to bed

If there is freedom of the printing press and money is speech, why is printing money not covered by the 1st Amendment?

heh. not campaign. organization. (which Cohen has also previously denied)

Now Cohen is claiming that it's OK that he used his Trump Org e-mail to arrange the payment because he also used it to e-mail family, friends, etc. on matters not related to the organization. (Because even if it was the organization, it would still violate election law.)

Voter ID seems to me to be a violation of the First Amendment right to unfettered anonymous free speech.

I don't see the difference between anonymous free speech with the money doing the talking under CU and say, my right to bribe a building inspector with pictures of Ben Franklin.

If XYZ Corporation can pay a candidate to allow the former to pollute a National Park one way or another, why doesn't my park entrance fee include the right to take a dump right on the trail and leave it unburied, without an additional fine, because like a corporation/person, I get to talk thru my ass too.

While we're at it, I find Hipparchus' latitude and longitude lines superimposed on the globe subjective claptrap.

Daylight savings time? Who said?

State, county, township boundary lines? City limits?

Who made those up? Not me.

I'd say if the Daily Stormer sitting in the bottom drawer of a Republican Congressman's Capitol Hill desk calls for the elimination of Jews and the schvartzes, then it is a little late to start kicking all of their asses physically once they actually start implementing the plan, if only because they've misappropriated Yiddish like the blockheads they are.

Taxes are nothing less than coerced speech.


Voter ID seems to me to be a violation of the First Amendment right to unfettered anonymous free speech.

I must have missed the "anonymous" caveat in the First Amendment.

Taxes are nothing less than coerced speech.

by taking away my speech-facilitating cash, taxes are also censorship!

https://www.theobjectivestandard.com/2014/09/citizens-united-anonymous-speech-rights-violating-disclosure-laws/

If damned John Jay and the damned who won't damn him can influence government via anonymous writings as Publius, and may give money, influence peddle, to campaigns anonymously as the Publius Anonymous PAC with a mail drop in Waco, without the quality of his countertops being questioned by immigrant Filipina Twitter mobs, why can't the nice ladies manning the polls on election day accept my word as Countme-Anonymous without troublesome government ID being presented?

I know who I am.

I'm Teddy Roosevelt on some days and Professor Irwin Corey on others.

And Trump is Professor Harold Hill -- albeit without the class. (Or, probably, the singing voice.)

I am at a loss as to why the Editorial Board of the N.Y. Times is different than the board IBM or Google or the owner of Hobby Lobby, natural persons all.

If the members of the board of IBM want to pool their own personal money and run an ad expressing their opinions, I'm fine with it. Note the "use their own money" part. The assets of IBM are not the personal property of the board. If they want to write articles or letters to the editor, or engage in interviews, or assemble publicly, or go to DC and lobby their representatives to advocate for their point of view, I say go for it. Just spend your own money, and do it in your own name, individually or collectively.

Ditto Google.

If the owners of Hobby Lobby want to worship Jesus in the church of their choice, I think that's great. If they want to abstain for using contraception that seems, to them, morally hazardous, I applaud them for respecting their consciences. The collective pool of assets that is known legally as "Hobby Lobby", however, doesn't believe or worship anything.

I'm continually baffled at how difficult this seems to be to grasp.

Natural human persons have rights. Legal entities constructed under law to engage in specific activities don't.

They may be entitled to do certain things by statute, but they have no claim on inalienable human rights.

My checking account has no inalienable human rights. I do. I can use my money to engage in activities that are expressions of my rights. I can't use my employers money to do that. And my checking account sure as hell can't sit up on its hind legs and do that of its own volition.

The Bill of Rights and subsequent amendments were and are intended to protect natural human persons. Not accumulations of capital.

I'm continually baffled at how difficult this seems to be to grasp.

maybe it's not difficult to grasp. maybe it's just inconvenient to admit.

I am at a loss as to why the Editorial Board of the N.Y. Times is different than the board IBM or Google or the owner of Hobby Lobby, natural persons all.

the NYT is in the business of printing news and opinion. it's why the NYT exists. it's the product they sell.

IBM is in the business of business machines, not opinion.

the NYT is in the business of printing news and opinion. it's why the NYT exists. it's the product they sell.

IBM is in the business of business machines, not opinion.

Does that mean that NYT should be privileged over other corporations just because they have printing presses?

Being in the business of conveying news is a business, it has no more to do with the Editorial boards first amendment rights than the computers have to do with the IBM boards rights.

In each case real human beings are in charge of corporate assets that either can or cannot be used for political speech based on the first amendment.

There is no daylight between the rights of those two groups of humans.

Does that mean that NYT should be privileged over other corporations just because they have printing presses?

yes.

"the press" is, after all, called out explicitly in the first amendment. it's a special kind of business.

There is no daylight between the rights of those two groups of humans.

corporations are not the people who work for them.

I am at a loss as to how the Editorial Boards of the Daily Caller, and the Drudge Report, and the Sinclair Broadcasting Props Department are any different from the hand and thrown voice of Putin's Kremlin up the back of their puppet smocks?

Being in the business of conveying news is a business, it has no more to do with the Editorial boards first amendment rights than the computers have to do with the IBM boards rights.

I think a few things need clarification.

First, Sullivan v NYT did not involve the opinion of the owners, management, or editorial board of the NYT. The information that was objectionable was an advertisement, paid for by a committee organized for the purpose of engaging in protected political speech and action. The suit brought by Sullivan claimed that some of the information was false (some of it was, by a quite narrow definition of "false"). The outcome of the case established that malice was required to establish libel.

Libelous speech is not (I don't think?) protected. The question was whether the advertisement, bought and paid for by a group with an explicitly political and social agenda, amounted to libel.

The freedom of the press that was enabled in Sullivan was the ability for newspapers etc. to publish reports on the civil rights movement in the southern US without being subject to harassing lawsuits.

Second, the press is specifically called out in the 1st A as deserving protection. Business machines are not, nor are hobby stores. The government may not interfere with the press, or more broadly other news organs, from printing, publishing, or broadcasting politically protected speech. That applies whether the organization doing the printing, publishing, or broadcasting is doing so for profit or not. And, for that matter, whether they do so under the corporate form or not.

It is not the corporation that is protected - or, in my opinion, not the corporation that *ought* to be seen as owning the protection - but the institution, and the individuals who speak through it.

So, daylight.

The collective pool of assets that is known legally as "Hobby Lobby", however, doesn't believe or worship anything.

I think you could make a case that Hobby Lobby, like all for-profit corporate entities, worships Mammon. But I never heard that Mammon has an opinion on abortion -- or anything else other than accumulating wealth.

it's probably worth keeping in mind that, when the 1st A was written, the idea that corporations are 'persons' and should therefore entitled to the rights of natural persons would've been laughed out of the tavern.

that we're trying to figure out if all corporations should be entitled to free speech rights is not something the Constitution actually addresses. because the notion that a corporation is any kind of person didn't come about until all the founders were long dad. and it's pure bullshit.

dead, dad, evs

I don't even think Hobby Lobby worships Mammon. It's just a company that sells hobby stuff.

Oddly enough, I don't really have anything against corporations as such. They're a useful institution.

I object to *people* making use of the resources of corporations which were not organized for purposes of engaging in political or social activity, to further their own preferred political and social ends. It ain't their money, and it wasn't intended to be used for those purposes.

And I *strongly* object to constitutional protections intended to defend the rights of human beings being used to enable that kind of abuse.

The board of IBM and Google and whoever else can spend their own personal money, and act on their own personal behalf, if they wish to participate in the political process.

"the press" is, after all, called out explicitly in the first amendment. it's a special kind of business.

This concept shouldn’t be hard. Newspapers aren’t other things, and other things aren’t newspapers. And not that it’s a constitutional thing, but why should one kind of corporation, like one that grows and harvests corn, be given a subsidy that isn’t available to those that make bicycles? Distinctions are just so troublesome!

With respect to nothing on this thread, except it is an open thread, I felt I should have covered East Nashville in the other thread. Just because I ran across it.

We call the Founding Fathers long Dad for short.

Libelous speech is not (I don't think?) protected.

Libel is not protected, although NYT v. Sullivan and its progeny makes libel against a public figure virtually impossible to establish. Although there are very good reasons for that, I think there are problems with it too. The fake news defaming Hillary Clinton and her murderous ways, for example, would be libel for any private person. Also, when does a person become a "public figure"? Etc. That ruling is extremely problematic.

There are a lot of issues like this in the law.

I don't have a huge problem with corporations having certain rights. Due process is a right that comes from our government that is intrinsic in legitimizing whatever action the government takes against people or entities. (Clearly, it should also apply to ICE actions, which at the moment it doesn't seem to.)

I happen to think the bigger problem is speech = money. That is wrong, IMO.

"I happen to think the bigger problem is speech = money. That is wrong, IMO."

It's even worse than that: money = speech = money.

Some kid (in Boston IIRC) got convicted of "material support of terrorism" for publishing articles in favor of Al Qaida.

I think it might be worthwhile making false accusations of criminal activity libel, even when the target is a "public person". Need some details around what level of support is the threshold (e.g. you don't need "beyond a reasonable doubt"). Also, I think, on which kinds of criminal activity -- just because the law varies from place to place. But still, it would help to deter the worst slanders.

Some kid (in Boston IIRC) got convicted of "material support of terrorism" for publishing articles in favor of Al Qaida.

I think I remember that we talked about that here at the time. This, from Wikipedia. This from Cornell United States Code website.

I think there is a national security interest in not having people stoking up an enemy that we're fighting. That's one of the tensions of the First Amendment that we can argue about. Rights aren't absolute.

That's why the Second Amendment absolutists are also full of s6it.

Trying again with that first link.

I don't have a huge problem with corporations having certain rights

i have no problem whatsoever with corps having privileges of all sorts as a matter of statute.

not rights, in the "inalienable" sense.

not rights, in the "inalienable" sense.

I see due process as a duty of government, even though it's categorized as a "right" in the Bill of Rights. If a government agent acts without due process, the action is illegitimate. Procedural due process is, in fact, substantive. Due process is a right of any entity who/which is being taken to task by the government. The rest of the Bill of Rights is not so clear.

look, i'll put it this way.

the bill of rights does not grant or bestow the rights they enumerate. they are a recognition of rights that are assumed to already exist, that are inherent in the fact of being a natural human being.

they are prior to and superior to law per se, and cannot be denied or alienated by law, as evidence for which note that laws are struck down if they are found to violate the rights enumerated in the bill of rights and subsequent amendments.

they are inherent. they are not a creature of law, and are not granted by law. the law merely recognizes them.

corps, by contrast, are entirely a creature of statutary law. nothing about corps deserves the status of "inalienable". they are a category of thing to which that concept does not apply. there is nothing whatsoever inherent about them, every aspect of their existence is a legal and social construction.

so, imo, no constitutional right should be recognized in corps. only in people.

The word "inalienable" doesn't exist in the Constitution. It's a Declaration of Independence thing. It's an aspirational, wish-it-could-be-so kind of thing.

So, yeah, the Bill of Rights was a petition by "the people" that was approved by "the people" having nothing to do with "inalienable" because "the people" could alienate them by Constitutional amendment. In other words, the Bill of Rights isn't the Bible. It's a founding document of our legal system.

Corporations are entities created by state statute. I work for a not-for-profit Virginia corporation. I wouldn't expect anyone to come storming into my office to check out my Quickbooks program without notice. I would want some notice, and a hearing. That's due process. That seems fine to me, not only as the right of the entity I work for, but also as a duty of government (except, of course, by other due process, such as some kind of criminal procedure with wiretapping, search warrant, etc.)

Should have reversed that: search warrant, wiretapping, etc. All that is fine, with the appropriate due process as required by the Constitution, statute, and case law.

some time ago, on a previous pass around the mulberry bush on this topic, brett bellmore noted that a lot of the problem was that the corporate form was required to cover so many different kinds of things. there were too many things that could not, as a practical matter, be done outside the corporate form.

i'm sure brett wasn't taking that observation to the same places i would, but i thought, and think, that it was more than apt.

engaging in advocacy for political or social causes occurs via the same vehicle as selling hobby supplies. not precisely the same vehicle, but not different enough to let us distinguish between the protections that, frex, sapient's non-profit should enjoy, vs what, frex, exxon mobil should enjoy.

that's a problem.

and if it's not intuitively obvious how the two examples differ, perhaps no point in going further with the discussion.

on russell at 09:38 PM
I presume you are no Platonist then ;-)
Wouldn't it be nice, if a lobbyist would argue in front of SCOTUS that corporations are a preexisting concept, an idea, in the Platonian sense and as such as inalienable as any other right recognized by the Constitution? And to then hear some of the justices argue that the founders were indeed steeped in Plato's philosophy and that therefore no doubt could be possible concerning their original intent on this topic.

I'm actually fine with the corporate form. The problem isn't the idea of corporations, it's the fact that certain people in our country are using them as a hidey hole to protect them from nefarious acts. That's entirely fixable, but the usual suspects don't want to fix it.

Instead of talking about corporations, I'd like to focus on Stormy Daniels.

I'm a huge believer in people having their own personal lives. Paying hush money? Comedy of Dennisons? I hope Trump drowns in this. Sure, I'd rather people care about our country, but that's taking a really long time.

The problem isn't the idea of corporations, it's the fact that certain people in our country are using them as a hidey hole to protect them from nefarious acts.

Yes.

I have exactly zero issue with corporations and/or the corporate form per se. People - human beings - abuse the corporate form to shield them from the consequences of their personal, real-life, natural human bad behavior.

I don't see a solution for that as long as corporations are considered to be constitutional persons. If you do, all good.

I'd like to focus on Stormy Daniels.

IMO there would be no greater poetic justice than for Trump's undoing to be a dalliance with a porn star, gone sideways.

Ms Daniels appears to know her onions, so Trump, Cohen, and company had best bring their best game.

Popcorn's a-popping.

IMO there would be no greater poetic justice than for Trump's undoing to be a dalliance with a porn star, gone sideways.

Yes.

And isn't it typical of Trump's devil-may-care approach to everything that he neglected to sign the NDA? Thus (probably) rendering it void. At minimum, the courts will rule it valid, so she can't talk. But it's in the (public) filing of her court action, so it's out there that he did so anyway.

Bring it the fuck on

I was particularly struck by the line about how the Democrats lost the Civil War, and would lose the next one. Cheerfully ignoring the fact that the Democrats who lost the first one are all Republicans now. So he's half right: the same people who lost the first one would lose another one. Only the labels have changed.

Those who are (determinedly) ignorant of history are doomed to repeat it.

Wait a minute! How did I get transferred to this thread????

You were body-snatched.

Can I blame Hilary...?

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