You'd Think This Would Settle It ...

by hilzoy

In a sane world, the absence of any evidence that the Obama administration was considering reinstating the Fairness Doctrine would have prevented people from talking darkly about the end of talk radio and freedom of speech. Regrettably, we do not live in a sane world. But this exchange seems clear enough to put this particular canard to rest once and for all:

You'd think. But AllahPundit, who posted this, adds:

"Worth posting whether he’s telling the truth or he’s lying. If the former, it’s cause for a collective sigh of relief. If the latter, we should flag it now so that we’ll have something handy later to throw in The One’s face when the march towards Fairness begins."

And the comments are a sight to behold: a few people seem willing to entertain the idea that, in fact, no one is planning to reinstate the Fairness Doctrine, but for the most part the debate is between the following positions: (a) the nominee will be fired tomorrow, (b) the nominee is lying, like all liberals, and (c) this only shows that liberals have figured out some other way to destroy talk radio.

Sigh...

Comments

[JR]

Well, the left came up with some pretty absurd stuff to the Bush years as well, sometimes against obvious facts. Some of them were true of course, but many of them weren't, and ended up only feeding themselves. I don't think this stuff is the sole property of the right, though they are the major shareholders...

[Elemenope]

As a sorta libertarian myself I hang out on a few libertarian boards, and I have to say they have a somewhat monomanical obsession with the Fairness Doctrine and what they believe is its incipient return, despite the general lack of evidence.

I still don't understand why.

[Gary Farber]

"I still don't understand why."

The answer to almost all such mysteries is: "projection." They know that that's what they'd do if they were in the positions Democrats are in, so they're sure that that must be what the Democrats are Sekritly Planning.

Looking at what actual Democrats actually believe is never in their agenda, anyway; only imaginary Democrats are important and useful.

[Elemenope]

I'm pretty damn certain that libertarians would not institute anything approaching the Fairness Doctrine in the extremely unlikely case that they were to gain political power, for fairly obvious reasons. I agree that your hypothesis explains the more government-power-friendly conservatives.

Perhaps it's just spillover from being cozy with the big-government-conservative types for this long. Dance with the devil long enough...

[Warren Terra]

Having just yesterday read a thread at Reason, linked to by John Cole of Balloon Juice and starting with outrage that those darn liberals sometimes refer to Paul Krugman with the honorific "Dr.", and seen the nuttiness that ensued in the comments, especially people willfully misreading a frankly brilliant 2002 Krugman column in which he accurately predicted the housing bubble to instead blame it on him (an argument eviscerated by Yglesias today), I'm beginning to think that "libertarianism" - a philosophy that would seem to have some appeal, especially as I often agree with them on social issues - is just as morally and intellectually bankrupt as the rest of the coalition that has been backing the Republicans.

[Elemenope]

Warren Terra --

If you read more than the one thread (which, BTW is not a particularly representative one), you'd quickly realize that libertarians are about done with backing the GOP.

[Roger Moore]

Perhaps it's just spillover from being cozy with the big-government-conservative types for this long. Dance with the devil long enough...

I suspect that it's not so much cozying up to big-government-conservatives as much as it is a usurpation of the term libertarian. Those "big-government-conservatives" (who, by all rights shouldn't really be called conservatives in the first place) have given conservatism a bad name. Now they're hoping to avoid the stigma of the mess they made of conservatism by misappropriating another term. Many of them have apparently chosen libertarianism. Just wait and watch. In 5 or 10 years, the true libertarians will be greatly outnumbered by people who just call themselves that but are indistinguishable from today's "big-government-conservatives".

[Nell]

JR: Well, the left came up with some pretty absurd stuff to the Bush years as well, sometimes against obvious facts.

Such as?

We hardly had time or incentive to imagine non-existent threats, what with all the actual horrors the regime kept coming up with. But I'd like to know what you were thinking of.

[Sebastian]

Both Reid and Pelosi have at various times voiced interest in the fairness doctrine. So it isn't TOTALLY crazy. Though as we know from the DADT thread, Reid doesn't realize he can introduce legislation, so we're probably safe.

[Elemenope]

Though as we know from the DADT thread, Reid doesn't realize he can introduce legislation, so we're probably safe.

LOL! (psst! Nobody tell him that!)

Both Reid and Pelosi have at various times voiced interest in the fairness doctrine. So it isn't TOTALLY crazy.

Yeah, true, but neither has shown any willingness to spend political capital on the issue, or really do anything other than mention it in passing. It wouldn't be crazy to bet they just do it to see what kind of response it provokes--for the lulz, if you will.

[Fred]

A certain sensitivity to the possibility of impending censorship makes sense; Once you're shut down you can't effectively complain about it. So you have to over-complain beforehand. Call it a pre-emptive strike, if you like.

And if the censorship never appears, you can always claim you prevented it. So complaining about censorship always pays; Try it yourself, it's easy.

[Brett Bellmore]

"I still don't understand why."

It's not exactly irrational to suspect that Democrats plan censorship of their political opposition. We know for a fact, thanks to the whole campaign 'reform' bit, that you're not adverse to political censorship. And it's not like there haven't been plenty of statements in defense of the fairness doctrine over the years, and over the top attacks on talk radio. So the general basis for expecting it is there.

But the specific denials, they've got to mean something. Fair enough, I'd say we should trust them as far as Obama's 'gay' supporters should have trusted his campaign promises. That should be reasonable, right?

[Uncle Kvetch]

In 5 or 10 years, the true libertarians will be greatly outnumbered by people who just call themselves that but are indistinguishable from today's "big-government-conservatives".

This has already happened, AFAICT.

over the top attacks on talk radio

The poor delicate flowers.

Obama's 'gay' supporters

Hmmmm. Do I really want to know the reason for the scare quotes? Probably not.

[Filip Spagnoli]

I don't understand what's so awful about the fairness doctrine. I want it back

[liberal japonicus]

Look, Brett is just showing his deep solidarity with all those LGBT folks. Funny how it only comes when he wants to score points off Obama.

[Brett Bellmore]

The scare quotes are because most of the homosexuals I know are not distinctively carefree and light hearted. And, if you want to call demonstrating that he's willing to break his word "scoring points", have at it. Bush wasn't exactly obsessive about keeping his word, either: Breaking promises is so characteristic of people in politics that it's the odd bird who actually keeps them who stands out.

Forget what they say, look at what they've done. And campaign 'reform' is a pretty good indication that most Democrats are comfortable with censoring the political opposition.

[Jesurgislac]

Uncle Kvetch: Do I really want to know the reason for the scare quotes? Probably not.

You didn't need to ask, did you? From Brett's comment at 07:29 AM, it's the same-old same-old homophobic complaint: "English is our language! It doesn't belong to homosexuals the same way it belongs to NORMAL people!" Or, see the same conversation we had with Brett in May.

[liberal japonicus]

And, if you want to call demonstrating that he's willing to break his word "scoring points", have at it.

Sure, if you use the complaints of a group who generate a feeling of 'creepiness' in you because it is rhetorically expedient, you don't have a lot of room to bitch about politicians 'keeping their word', imo.

[cleek]

I still don't understand why.

apparently it's a fantastic fund-raising tool. at least that's the impression i get from reading the tons of wingnut fund-raising mail i receive. they all scream about it, usually saying something like "THE LEFT WANTS TO SILENCE THEIR CRITICS!"

simple lies for simple minds.

[Brett Bellmore]

You'd be in a much better position to label this a lie, if it weren't for campaign censorship laws, which were driven mostly by the Democratic party, and which are defended by liberals. Democrats/liberals clearly ARE willing to resort to political censorship.

And the left, to the extent it is distinct from liberals, frequently tries to silence it's critics on campus, where it has the clout to do so.

Really, the only question is in what ways liberals want to silence their critics, at any given moment. Willingness to do so is already established.

[cleek]

"campaign censorship laws"

i give up. what is a campaign censorship law ?

are you talking about things like McGOPCandidateForPresident/Feingold ?

the mail i'm talking about always uses the phrase in reference to the Fairness Doctrine. is that a campaign censorship law?

Really, the only question is in what ways liberals want to silence their critics, at any given moment.

i could happily enumerate the many ways "the right" tries to censor/silence its critics, if you'd like. but maybe it'd be best if we just agreed that political factions in general will both try to silence opponents while claiming that their opponents are trying to silence them. it's a human thing.

my point with the fairness doctrine "lie" is that there is no serious effort to revive it, and little chance of it passing if it was revived - and, really, why would any professional Dem want to silence someone like Limbaugh? he's a fantastic illustration of the difference between sane people and the wingnut right. he's the gift that keeps giving.

[chmood]

Brett: "It's not exactly irrational to suspect that Democrats plan censorship of their political opposition."

It is *precisely* irrational to suspect Democrat "plans" for censorship while simultaneously ignoring the Republican track-record. Focusing on chimerae like the Fairness Doctrine is a great way to keep the juices of faux-outrage flowing against "The Other" while minimizing one's own long-standing patterns of behavior. The Bible refers this to as ignoring the log in your own eye while obsessing over the mote in your neighbors' - AKA 'hypocrisy'.

Which leads us to the delicious irony of listening to Congressional Republicans whining about how "unfair" the majority Democrats are, completely unashamed of their 12-year addicition to ruling as if they were the ONLY party in the nation.

Nice way to try an end-run around your stated positions, "Conservatives"!

The real question in all this is: are ANY of the "Conservative" positions honestly held? Or do "Conservatives" know they are lying *while* they are lying?

[Brett Bellmore]

"are you talking about things like McGOPCandidateForPresident/Feingold ?"

Yes, precisely, and that's why I wouldn't think to claim that only Democrats are willing to resort to political censorship; There's a faction of the Republican party that's comfortable with it, too, it's just not as dominant at present. McCain's fondness for that abuse is part of what makes him a 'maverick" in the GOP.

I wouldn't even claim that all Republican opposition to political censorship is principled. A lot of it is due to a calculation that a regime of political censorship is likely to fall a lot harder on Republicans than Democrats. A calculation that's subject to change, though the basis of it doesn't seem likely to change soon.

"but maybe it'd be best if we just agreed that political factions in general will both try to silence opponents while claiming that their opponents are trying to silence them. it's a human thing."

I think we can agree on that, yes.

My point is simply that, given the Democratic party's clear fondness for censorship, expressed dislike verging on hatred of talk radio, and expressions of support for the doctrine among people in the leadership, it's not irrational for Republicans to fear something like that might be in the works. And given the frequency of lies in politics, assurances to the contrary should not be taken too seriously.

I don't expect the fairness doctrine to be revived tomorrow. If a couple of the conservative members of the Court were to die in an auto accident tomorrow, I'd start worrying, though, because they'd be sure to be replaced by somebody who doesn't find political censorship a non-starter.

[Scott P.]

I fail to see how McCain-Feingold is political censorship.

[Sebastian]

I think it is rather obvious that politicians in power are more interested in censorship than those out of power. That is a bipartisan trait. Which is why campaign finance laws always strongly favor the incumbent.

I don't expect the fairness doctrine to becoming back under that name at any time in the near future. The name has too much taint associated with it. But I do expect to see hand wringing concern about speech and proposals to limit it, some political, some not. Rep. Sanchez had something irritating along those lines. I'll look it up tonight.

[rea]

He calls himself, "Brett Bellmore," but we all know the truth . . .

[Uncle Kvetch]

I've pondered a couple of responses to Brett, but nothing I could possibly write would make him look more profoundly silly than his own contributions to this thread.

Please do go on, Brett, this is most interesting.

[Brett Bellmore]

"I fail to see how McCain-Feingold is political censorship."

Talk to the ACLU, they thought it was. There's not much that gets the ACLU and NRA on the same page, but McCain/Feingold did.

[Brett Bellmore]

"He calls himself, "Brett Bellmore," but we all know the truth . . ."

Yes, it's actually Brett Paul Bellmore. Bwah ha ha! I've been playing you for fools all this time.

[russell]

"And it's not like there haven't been plenty of statements in defense of the fairness doctrine over the years, and over the top attacks on talk radio."

Glad to know someone reads my comments. :)

IMO the Democrats should immediately, like before lunch is over, introduce legislation to revive the Fairness Doctrine. In fact, they should submit fresh new versions of the legislation weekly.

Conservatives will immediately focus on that with a laser-like intensity, and will continue to do so indefinitely, because it will threaten the income of their most significant spokespeople.

When Limbaugh speaks, they listen, lest he spank them on the air during drive-time.

In the meantime, the Democrats will be free to do whatever the hell they like on almost any other topic.

[gnomedad]

The scare quotes are because most of the homosexuals I know are not distinctively carefree and light hearted.
Most "black" people I know actually reflect light. Your point is ...?

[Brett Bellmore]

Yeah, but they reflect less of it than the average caucasian. I'm just denying that 'gays' are gayer on average than straights, not that they're not gay at all.

[chmood]

Scott P: "I fail to see how McCain-Feingold is political censorship."

You fail to see it because it's not there to see. It would be much harder to spin up paranoid hysteria the "Conservatives" limit themselves to fact-based arguments an positions.

The hysterical "right" requires straw-men: it's why they never address challenges directly, in clear language, why they drive out of their midst anyone foolish enough to question the Party line It's always alarm, innuendo, and falsified principle and sobriety. The Fairness Doctrine is exactly such a straw man, used consistently in just this fashion; and the "Conservatives" and their flappers deflect any internal examination, all external criticism, bunkered-down with their amen-corner. Always playing the same game, always pretending that no-one can see them, always daring others to dislodge their effrontery, to call them on their intentional deceptions, to blow their cover.

I have "Conservative" acquaintances who love to pronounce - as if it was a universal verity - that all liberals are stupid. It took me most of the campaign season to see what they were getting at: to the left, generally, politics is a debate over principles, public welfare, individual rights, infrasructure, and national direction; to "Conservatives," OTOH, politics is a bar fight - and liberals are suckers for the sucker punch. Why should they fight fair? Why should they EVER fight fair? Why should they EVER take a thoughtful, effective proposal seriously?

Answers to these questions would be worth a great deal.

[Sebastian]

The apparently paranoid and surprisingly conservative ACLU on McCain-Feingold

First off, it contains an unprecedented attack on issue advocacy by nonpartisan groups and organizations. It would basically prohibit unions, corporations and issue organizations from effectively informing the public about the conduct of public officials who are candidates for election by imposing a total blackout on broadcasting any information about an incumbent candidate during the 60 days before a general election and 30 days before a primary. Had this bill been the law during the 2000 elections, for example, it would have effectively silenced issue organizations across the entire political spectrum. The NAACP, for one, would have been effectively prohibited from running its powerful ads criticizing the hate-crimes record of then-Gov. George Bush. The NRA could not have run broadcast ads attacking the gun control positions of members of Congress.

Secondly, the McCain-Feingold legislation would also make it virtually impossible for political parties to engage in all forms of grassroots political activities, such as get-out-the-vote efforts, voter registration drives, voter education, candidate recruitment and development and issue development by totally depriving them of the funding which has sustained such activities.

Even individual citizens who want to join together to engage in such advocacy would be subjected to new and burdensome registration and reporting requirements under McCain-Feingold. And for citizen groups whose message is particularly controversial, such disclosure requirements are tantamount to placing a gag around their mouths and silencing them.

The nation has seen an explosion in recent election cycles of issue advocacy critical of the records of candidates and incumbents. In reaction, Congress now wants to limit the ability of independent issue-oriented organizations to describe positions using the name and/or likeness of a candidate during the crucial days leading up to an election, which is exactly the time when people are paying the most attention to the positions of their elected officials. We believe that if Congress continues to move in this dangerous -- and ultimately unconstitutional -- direction the only people who will be allowed to speak about the record of politicians will be politicians, PACs and the press.

That's why I am delighted - once again - to be here today to join with Sen. Mitch McConnell and our "unusual allies" coalition to yet again renew our perennial battle to protect political speech from being decimated in the name of campaign finance reform. And soon I hope to join Senator McConnell in welcoming more progressive voices to our coalition of organizations opposed to McCain-Feingold and Shays-Meehan, its companion in the House.

This unprecedented government regulation of political speech flies in the face of 25 years of court decisions protecting such speech from government regulation. In our democracy, you shouldn't have to register with the government in order to criticize it.

[Brett Bellmore]

"I fail to see how McCain-Feingold is political censorship."

You ever heard the phrase, "electioneering communications"? Well, "electioneering communications" are free speech concerning elections. You, me, every American, are entitled to advocate the election or defeat of a candidate for public office, at any time. It's a constitutional right.

McCain/Feingold pretends that, somehow, the 1st amendment does not apply if you have to rent a printing press, instead of owning one. If you have to rent a transmitter, instead of owning one.

McCain/Feingold sets a period of time near elections when you spend the least sum to be heard saying something about a candidate for office at your legal peril.

McCain/Feingold is content based censorship of political speech, and nothing else.

[efgoldman]

The problem with campaign finance and expenditure limits and laws is that the Supremes, in Buckley, equated money with speech, wrongly in my view.

A two line amendment (which is never going to happen) would fix it:
Nothing in this Constitution shall be construed to equate "speech" as protected in the First Amendment, with the raising or expenditure of money.

Problem solved.

As to the chimera of the fairness doctrine: I worked for a small Boston station from the late 70's thru the early 90's. What I remember most is huge lobbying by industry groups because the record-keeping and reporting requirements were just hideous (and in those days, remember, everything was filed on paper). I remember our GM spending days on each report. And we were a classical-music station, with very little news or public-service programming.

[Brett Bellmore]

"Problem solved"

Yeah, if you think the fact that people can publish and say things the government doesn't like is a "problem". You do realize, don't you, that with that one little amendment, the government could constitutionally shut down any newspaper in the country, by the simple expedient of forbidding them to spend any money on ink or newsprint?

[Jesurgislac]

Uncle Kvetch: I've pondered a couple of responses to Brett, but nothing I could possibly write would make him look more profoundly silly than his own contributions to this thread.

*stares at 05:59 PM*

You are not wrong.

[russell]

"It would basically prohibit unions, corporations and issue organizations from effectively informing the public about the conduct of public officials who are candidates for election by imposing a total blackout on broadcasting any information about an incumbent candidate during the 60 days before a general election and 30 days before a primary."

Call me a crazy lefty, but I don't see that corporations or unions deserve first amendment protection for their public communications. More than that, actually, IMO they decidedly do NOT deserve it.

Issue organizations whose membership is 100% natural persons, which is to say actual human beings, and whose charter is limited to issue advocacy and issue advocacy alone, different story.

I would also exclude corporations, unions, AND issue organizations from making any financial contribution to a political candidate, party, or PAC. Natural persons only, subject to an annual limit, as we have now.

[Brett Bellmore]

Feh. If you can regulate money spent on speech, without respect to the 1st amendment, then there's no legal obstacle to the government prohibiting expenditure of money on speech it doesn't like.

Which is exactly what McCain/Feingold is all about: Stopping people the government, AKA incumbent politicians, don't want speaking, from being heard. By preventing them from spending money on being heard.

You listen to the justifications for the limits on third party expenditures, that's all it's about: Shutting up people the defender of the law thinks shouldn't get heard.

[mds]

If there's one thing this country has always stood for, it's "one dollar, one vote." It's right there in the Preamble, written above the "promote the general welfare" in the same libertarian-purple crayon with which that part was scratched out.

Don't believe me? Go look at Gary Farber's list in the PATIENTS thread of how much health insurance CEOs make, then look at the opinion polls vs. what Congress is currently actually doing on health care "reform." The richer you are, the more say you're supposed to have. Otherwise the Good Lord wouldn't have written the First Amendment with dollar signs in it.

[Elemenope]

For all the accusations being leveled about conservatives building strawmen and liberals using logic and evidence to build their arguments, on this thread only Brett and Sebastian have made reasonable arguments about McCain-Feingold so far as I can see. If someone would confront their arguments on this issue, I'd be impressed, instead of making snarky comments about dollar signs in the Constitution.

(And while russell's *position* is interesting, it is not much more than a normative assertion.)

[liberal japonicus]

When Brett's 'reasonable arguments' about McCain-Feingold are wrapped up in sentences like 'Which is exactly what McCain/Feingold is all about...' and 'McCain/Feingold is content based censorship of political speech, and nothing else', when the 272(!) page Supreme Court decision had Justices writing dissents to parts of the decision while they were in the majority, I tend to feel they aren't reasonable arguments but unrealistic simplifications, imho.

[chmood]

Thanks to Sebastian for making the case that conservatism and paranoia go hand-in-hand...it explains much that a 'logical, rational' argument would not..

[russell]

"while russell's *position* is interesting, it is not much more than a normative assertion."

I think Brett and Seb make very good points about McCain/Feingold.

I'm not sure what "normative assertion" means in this context. My "position" is that the First Amendment was not intended to, and ought not be required to, protect the speech of "persons" who aren't human beings.

That seems pretty straightforward to me.

[Brett Bellmore]

"when the 272(!) page Supreme Court decision had Justices writing dissents to parts of the decision while they were in the majority,"

Yeah, when you're wrong, and know it, you can whip up quite a sweat with all the hand waving you do to disguise it.

Russell, that is pretty straightforward, and the only point I'd make is that, since corporations are owned by, and run by, people who ARE humans, it makes little practical difference. You can't deprive a corporation of the right to free speech, for instance, without silencing actual people.

I'd also point out that it's a neat little dodge to the 1st amendment, crafting tax and liability laws so that people have to use the corporate form in order to do certain things, and then denying them their rights because they did.

People don't form corporations because it's fun. They do it because, given the state of our tax and liability laws, it's economically infeasible/insanely dangerous to undertake certain activities without forming a corporation.

Find a newspaper larger than a family newsletter, that's not run by a corporation. You can't, and it's no accident.

[cleek]

You can't deprive a corporation of the right to free speech, for instance, without silencing actual people.

whaa?

people who work for corporations do not cease to exist outside of the corporation.

[russell]

"since corporations are owned by, and run by, people who ARE humans, it makes little practical difference."

To which I reply, horse poo.

Quite a number of people who are owners of corporations aren't aware they are owners. Their ownership comes through their participation in mutual funds, etc.

Quite a number of people who are owners of corporations aren't US citizens.

Folks who are US citizens already have their own, personal right to free speech guaranteed by the first amendment. They do not need additional protection via their participation in a corporation.

Last but by far not least, the political positions advocated by the management and/or ownership of a corporation is highly unlikely to reflect that of all, or even most, stockholders and employees in any reliable way.

Corporations aren't people. They aren't a big group of people who happen to get together to do some interesting thing. They are a legal structure with the authority to own property and enter into contracts, and which exist to limit the financial and legal liability of their owners. They are not synonymous with their owners and employees. And their "speech" does not deserve protection under the First Amendment.

I'm talking here primarily about for profit commercial corporations and other organizations, including unions, which are not created for the purpose of political advocacy.

I recognize that organizations such as the NRA, NARAL, etc, which exist specifically for the purpose of political advocacy are also organized as corporations. IANAL but my understanding and assumption is that there is sufficient detail in the US Code to let us distinguish between the two.

Natural human persons -- free speech is guaranteed.

Groups of natural human persons, and only natural human persons, organizing specifically for issue advocacy -- free speech should certainly be guaranteed.

Corporations created for profit or for any purpose other than issue advocacy -- no guarantee.

Commercial corporations, industry groups, and, to lesser but still significant degree unions, command enormous resources. Their participation in the political process distorts it in profoundly undemocratic ways.

I see nothing in the writings or statements of the founders of this nation to indicate that the protections offered under the Constitution were intended for anything other natural, human persons. That is who should receive them, exclusively.

The point about newspapers being corporations is interesting, but I believe the press, specifically, receives its own first amendment protections.

[glasgowtremontaine]

Find a newspaper larger than a family newsletter, that's not run by a corporation. You can't, and it's no accident.

My town newspaper, http://www.dnronline.com/aboutus.php>The Daily News-Record. The publisher is a grandson of http://en.wikipedia.org/wiki/Massive_resistance>Harry S. Byrd. If you can find a corporation that owns the DNR, I would be glad to know of it.

[Nate]

Brett: Bull. Denying a legal fiction like a corporation the rights of "personhood" doesn't affect the people working there. All of them are perfectly able to spend their own time and money on lobbying or otherwise influencing the government, from the CEO on down. But they can't use the company's money to do it. So if the CEO wants a lobbyist, they have to hire them out of their personal cash, not out of the corporate funds.

Also, I've heard lots of conservatives complain about unions doing political lobbying because what about the poor people who are in the union and don't agree with the union line? Why doesn't that same argument extend to corporations, then?

A corporation is not a eprson, and shouldn't have the same rights as a person, especially in regards to trying to influence the government. That's not censorship.

[glasgowtremontaine]

Whoops, I mean Harry F. Byrd. Whatever, same guy.

[Elemenope]

russell:

What I meant by "normative assertion" was that you were asserting that corporations ought not be treated as natural persons for the purposes of free speech. It wasn't an *argument* because you didn't describe why that should be so.

It's interesting to me because I myself question the wisdom of the creation of artificial legal persons for some purposes. On the other hand, Brett makes a good point that the limited liability of such corporations makes certain types of activities (like, say , running a newspaper) more doable.

[Sebastian]

The Daily News Record is owned by the Rockingham Publishing Co, Inc.

See for example here "On Friday, at the 2006 Homecoming Gala, JMU President Linwood Rose announced that the Rockingham Publishing Company, parent company of the Daily News-Record, committed $250,000 over the next five years to the university."

[Sebastian]

And just to be clear, are russel and Nate both contemplating a world where the New York Times doesn't have 1st Amendment rights? And if it does, how about Mother Jones? And if that does, how about Harpo magazine?

[mds]

And just to be clear, are russel and Nate both contemplating a world where the New York Times doesn't have 1st Amendment rights?

An excellent point. If we did somehow succeed in imposing a default rule that corporations didn't count as people for First Amendment speech processes, we'd have to find some way to grant an explicit exemption for "the press." Perhaps an amendment could be introduced to that effect.

[cleek]

It wasn't an *argument* because you didn't describe why that should be so.

i'm sure russell will have a better answer, but IMO, the assertion that a group of people organized for the purposes of making money while being sheltered from personal legal liability should be treated like a person is pretty outrageous. and, the idea that this imaginary "person", with access to all the assets of the corporation (which routinely far exceed the assets of any individual), should then have the right to lobby the government as a person, is doubly outrageous. an immortal "person" with access to billions of dollars clearly has more influence than any real person can ever have. it's a farce.

[Marvin the Paranoid Android]

My "position" is that the First Amendment was not intended to, and ought not be required to, protect the speech of "persons" who aren't human beings.

Humanist.

[russell]

"you were asserting that corporations ought not be treated as natural persons for the purposes of free speech. It wasn't an *argument* because you didn't describe why that should be so."

That should be so because they are not, in fact, natural persons. They shouldn't be treated as natural persons, because they aren't.

We could get into a whole laundry list of pragamatic reasons why treating them as natural persons is a bad idea, but I'm arguing from the results or effects.

I'm arguing from the bald facts.

"are russel and Nate both contemplating a world where the New York Times doesn't have 1st Amendment rights?"

"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."

bolds mine.

[russell]

D'oh!

I'm NOT arguing from the results or effects.

And there are only two 'a's in "pragmatic".

Thanks -

[russell]

"We could get into a whole laundry list of pragamatic reasons why treating them as natural persons is a bad idea"

See cleek's 12:17 for starters.

[Sebastian]

Your quote from the Constitution doesn't help you. The implications of your argument go against what you seem to think.

"The press" is not a special right held by media institutions. It is a right held by the people EXACTLY like the freedom of speech. It isn't THE PRESS (defined just by journalists and professional editors) at all. It is people printing stuff.

The reason why the NYT gets to appeal to the freedom of the press is because it is currently treated as a person.

[Optimus Prime]

It is people printing stuff.

Newsflash: Sebastian thinks the New York Times is staffed entirely by robots.

[russell]

That's an interesting point.

Let me do some homework on this.

[cleek]

The reason why the NYT gets to appeal to the freedom of the press is because it is currently treated as a person.

but that has nothing to do with "corporation=person" concept. one can obviously be part of the press without being a corporation, or working for one.

but, to the idea that corporation are required for newspapers: when did the concept of "corporation=person" officially come into US law. and when was the first amendment written ?

[mds]

It still seems to me that there should somehow be a difference between printing and distributing newspapers and pamphlets, and dropping suitcases of money on the desks of members of Congress. But right now I'm trumped by the originalism whereby the status of Archer Daniels Midland's legal personhood determines whether freedom of the press exists or not.

[Elemenope]

Didn't we just get out of a period where there was serious legal question as to whether blogging counted as press? The problem with the constitutional defense (beyond the point Sebastian made that it is still a right of persons) is that it relies on the state defining what the press is. Such rights can easily be defined right out of existence.

[Sebastian]

"but that has nothing to do with "corporation=person" concept. one can obviously be part of the press without being a corporation, or working for one."

"The press" in the constitution is not a group of people to be part of. Freedom of speech is what people have to use oral speech. Freedom of the press is what people have to use instrumentalities to publish their speech.

The NYT doesn't have access to 1st Amendment protections because it is of a grouping known as "the press". It has access to 1st Amendment protections because corporations are treated as persons for most rights, and people in the US have 1st Amendment rights.

The NYT and other media outlets have often argued that they deserve special 1st Amendment rights (see controversies about the reporter's privilege for instance) but for the most part they have had to get such things protected by statute, not by Constitutional law.

And normatively I believe that is correct. The 1st Amendment wasn't meant to give reporters special rights, it was meant to affirm the rights of all citizens to speak out against the government (both orally and through the written word).

[NDR Martin]

Freedom of speech is what people have to use oral speech. Freedom of the press is what people have to use instrumentalities to publish their speech.

Does a free robot have the right to a free press?

[cleek]

The NYT doesn't have access to 1st Amendment protections because it is of a grouping known as "the press". It has access to 1st Amendment protections because corporations are treated as persons for most rights, and people in the US have 1st Amendment rights.

sure.

my issue is that corporations are not people, regardless of what the law says. and you don't need to be acting on behalf of a corporation to print a newspaper. that corp's are able to print newspapers because the law says they are people is nice for them, but it's still a farce (as is the idea that money is speech). we could easily come up with some other mechanism that gave corporations the right to print papers that didn't involve turning them into people.

[Sebastian]

"we could easily come up with some other mechanism that gave corporations the right to print papers that didn't involve turning them into people."

I suppose we could. But they wouldn't have 1st Amendment protections that way.

[Brett Bellmore]

Treating corporations as people is a shortcut, really. It incorporates ;) by reference a lot of legal tradition about the rights of individuals, without having to independently replicate all that for corporations, too. It's not a perfect fit, but it saved a LOT of work.

The problem is that, as I've mentioned, the law very effectively channels a lot of human activity that's rightfully subject to constitutional protection into the corporate form. Strip corporations of their quasi-personhood, and the law would still force us to use the corporate form for many things, except that the government would have an excuse to not respect our rights while we did them.

If you've got laws which make a constitutionally protected activity infeasible unless you give up that protection, you've got a constitutional problem of the first order.

Oh, and nobody thinks that money is speech. But a lot of the regulation 'of money' in campaign finance regulation is specifically intended to get at the speech, the money is just a legal proxy for attacking the speech. When you're regulating money on the basis of the content of the speech you're using it to publish or broadcast, it's nothing but a transparent fiction that you're not regulating speech.

[Nate]

The New York Times publishing a newspaper is qualitatively different than Exxon giving a bunch of money to Congresscritters. And it's different than Exxon creating a shell "issue" group to shill for it. The only reason this is an issue at all is executives and lawyers have found it convenient to argue otherwise and have shockingly enough, the things people with lots of money want tend to influence laws.

Changing the current system to be less legalized bribery isn't censorship. Seriously. And corporations are legal fictions, not people.

[russell]

"The NYT doesn't have access to 1st Amendment protections because it is of a grouping known as "the press". It has access to 1st Amendment protections because corporations are treated as persons for most rights, and people in the US have 1st Amendment rights. "

I get the issue here, and I still would like to do some homework to understand some of the history and case law.

My question at this point is whether there is a useful way to distinguish between the corporation called the NYT that owns the presses, trucks, etc., and the people who write the content - journalists, editors, columnists.

The latter would *certainly* continue to be protected, because they are natural human beings.

As a practical matter, how would removing 1st Amendment protection from the NYT corporation prevent them from exercising their right?

Could legislation be passed that would, in effect, make it legal for them to write whatever they like, but make it illegal for the NYT as an entity to print and publish it?

Would that legislation pass a constitutional challenge?

(I'll pre-empt your reply, perhaps, and speculate that that is precisely your objection to McCain/Feingold. And I'd say you have a point.)

Given your argument above -- "speech" is for spoken word, "press" for printed and published -- an analogy might be allowing people to engage in public political speech, but outlawing the use microphones and public address systems provided by a public facility owned by a corporation.

Would that stand? Does the right to address a public assembly through a microphone owned by a corporation belong to the speaker, or to the owner of the microphone?

I'm obviously NAL, but it occurs to me that the 1st Amendment protection in the case of the press belongs not to the corporation that operates the physical apparatus of printing and publishing, but to the people who author the content.

I'd be curious to know your thoughts.

"It's not a perfect fit, but it saved a LOT of work."

Actually, it took a few decades of steady and concerted effort to make it so. I don't think it came about as a matter of legal convenience.

At this point it's so ingrained that it would likely take a few decades of equally steady and concerted work to undo.

[cleek]

I suppose we could. But they wouldn't have 1st Amendment protections that way.

we could give them Nth Amendment protections.

[Tony P.]

It's not often that I am torn between Russell's position and Brett's or Sebastian's. It feels weird.

I just want to point out that freedom of speech is not the only 1st Amendment issue in this discussion.

The right of the people peaceably to assemble, and to petition the Government for a redress of grievances, is not limited to natural persons marching in the streets carrying signs. Even if it were, not all natural persons have the same ability to march in the street, any more than natural persons have equal financial resources. The right to assemble vicariously and hire lobbyists to march in the halls of the Capitol seems as worthy of 1st Amendment protection as the right to physically assemble and march in the streets. And it saves a lot of fuss and bother.

True, only natural persons can march in the streets. Corporations can't. Unions can't. But if marching in the streets were the only way to petition government, corporations and unions would hire natural persons to march, for money. I'm not sure on what basis we could forbid ADM to hire people. I'm not sure on what basis we could forbid natural persons who have been hired by ADM to march in the streets.

In short, money will find a way to weigh in, and corporate persons are nothing if not owners of money.

What we rightly restrict to natural persons is the right to VOTE. Corporations can buy politicians with money, but the politicians mostly want the money to buy the votes of natural persons with. It is unfortunate that money can have the practical effect of buying votes, but what exactly can we do about that?

--TP

[russell]

Actually, I'd say that it should be illegal for ADM to pay people to peaceably assemble in the street in order to engage in political speech. They shouldn't pay them, shouldn't give them the day off if they work for ADM, shouldn't offer to give them a ride. Shouldn't circulate emails around the company suggesting that it might be a good idea and encouraging people to show up.

I'd really, really like corporations to be cleanly out of the political process. Unions too, although I support unions. I support corporations, for that matter, in their legitimate purposes. I just want them OUT of the political process.

Natural human beings only. No other money, no other input.

Can you prevent money from leaking in? No. But you don't have to provide the firehose.

[Nate]

On further thought, the problem isn't just one of the "personhood" of legal fictions like corporations. The fundamental problem is the orders of magnitude of difference in concentrations of wealth. A corporation naturally enough has much more resources than almost any person. And therefore, more "speech" available to it.

So one solution to the problem would be to reduce income inequality so the available influence is more equal between people.

But that's as much anathema to "conservatives" as regulating the money = speech setup.

[Brett Bellmore]

Russel, your complaints about corporations seem to ignore that some corporations, like the NRA or ACLU, exist solely for the purpose of people organizing to do exactly what you don't want corporations doing. They're not abusing people who are just there for a job, that's what the people in the corporation are part of it FOR.

[russell]

Hey Brett-

If you read my comments carefully you'll see that I specifically call out corporations that exist for the purpose of political (or other) issue advocacy as deserving 1st Amendment protections. The only thing I'd wish for there is that their membership can only include natural persons.

In other words, NRA is cool if it's only people in it, if Smith & Wesson is kicking in dollars I'm agin it. Or, I'm agin them doing so.

And in that case, I'm not looking to attach 1st Amendment protection to the corporation per se, I'm looking to NOT exclude 1st Amendment protection from folks who are it's members.

For that matter, if 10,000 ADM employees spontaneously want to go assemble peacefully somewhere, fine with me. I just don't want ADM sponsoring it, encouraging it, funding it, or in any way getting involved.

In other words, if natural human beings want to join efforts for the purpose of political activity, I got no problem with that.

When corporations whose charter is making money and shielding investors from liability want to play under the guise of their corporate "personhood", I'm against it.

Natural persons: deserve protection under the 1st (and all other) amendments.

Fictional persons created by law for the purpose of doing business: not really people, and so not deserving of protection.

If I'm not mistaken, the law already distinguishes between these different types of entity for tax and other purposes, so it's not like I'm introducing some weird new concept.

[russell]

Actually, I'll amend the above to make what I'm asking for even more closely constrained.

If the law allows corporations to lobby officeholders, participate in political campaigns and activities, etc., then I might not like but I would recognize it as legitimate. Because that would be what the law said.

What I am asking for is that corporations NOT be able to claim that privilege as a right. If the law changes to exclude them from any of the above, they should have no standing on Constitutional grounds to object by virtue of being "persons".

I, personally, would also like to see corporations excluded from the political process in every possible material way, but that's something to settle as a matter of law.

[Brett Bellmore]

"In other words, NRA is cool if it's only people in it"

It's a pity McCain/Feingold doesn't take that approach. But, it's not an accident. McCain essentially believes that nobody but the candidates themselves should be talking to the public during a campaign.

[Hartmut]

Interestingly in ancient Rome it was the other way around, the candidate (named after his special white outerwear, the toga candida) was not allowed to advertise personally (although he was allowed to bribe the public) and had to let others do the sloganeering etc.
Btw, the idea that only those offically part of a campaign should be talking for the campaign doesn't seem so outrageous to me (at least it would force the 'neutral' proxies to show their colours).

[Gary Farber]

"As a practical matter, how would removing 1st Amendment protection from the NYT corporation prevent them from exercising their right?"

Instead of people suing the NY Times for libel, or the government suing for prior restraint, all those individual truck drivers, printers, reporters, cafeteria employees, etc., would have to come up with money to pay their lawyers themselves.

[Brett Bellmore]

We're not talking about "talking for the campaign", I'm perfectly comfortable with holding that a third party, (Not talking about the LP here.) falsely claiming to be talking on behalf of the campaign, should be subject to a lawsuit for fraud.

McCain's position is rather more extreme: That nobody but the candidates should be butting in at all.

[russell]

"Instead of people suing the NY Times for libel, or the government suing for prior restraint, all those individual truck drivers, printers, reporters, cafeteria employees, etc., would have to come up with money to pay their lawyers themselves."

I think what you're talking about here is holding all employees of the corporation liable for the actions of some. Which falls, I think, under the heading of a liability shield for the corporation's employees, rather than 1st Amendment protection.

If the 1st Amendment protection is attached to the author of the offensive content, rather than to the corporation that physically prints and distributes the medium that carries it, I don't see that employees of the corporation are vulnerable.

[Sebastian]

But the reporter and editor and anyone else who worked on the piece would still have to defend themselves in court and pay for that out of their pockets. The 1st Amendment protection (if available) will indeed be available to them--and is now. But we won't know how that plays out until they spend tens of thousands (and maybe a hundred thousand or so) of dollars for a trial.

And think how effective that could be if the person being 'libeled' was rich. You could punish people for speech you didn't like rather easily.

[russell]

So the reason for giving 1st Amendment protection to corporations, and recognizing corporate personhood generally, is because corporations are the only entities that can afford to defend themselves from a libel charge?

What do private individuals do now if they are subject to criminal charges for activities that they believe are protected under the Bill of Rights? Are they defenseless unless, somehow, a corporation rich enough to pay for a rack of lawyers is also named as a defendant?

How has the Bill of Rights survived until now? Has it only endured because corporations have stepped up to defend when their rights have been challenged?

[Brett Bellmore]

The reason for giving 1st amendment protection for corporations, is that corporations are just one of the ways real flesh and blood people organize themselves to get things done. There's nothing there BUT people, to deny 1st amendment rights to.

[Gary Farber]

"So the reason for giving 1st Amendment protection to corporations, and recognizing corporate personhood generally, is because corporations are the only entities that can afford to defend themselves from a libel charge?"

I certainly wouldn't say it's "the" reason, but it's a reason.

"What do private individuals do now if they are subject to criminal charges for activities that they believe are protected under the Bill of Rights?"

The flip side is that often individuals aren't sued because the damage they can do with alleged libel just isn't worth the effort: it's swatting a fly with a sledgehammer to sue. But certainly there are plenty of instances where an individual would have been hard pressed, if not found it impossible, to come up with the resources to defend themselves against a major corporate or governmental suit, despite the existence of occasional pro bono publico help.

For instance, perhaps New York Times Co. v. United States would have gone the same way if it was only individuals having to defend themselves, but I hardly think that's a sure thing.

Could the individual journalists have afforded their legal expenses in Westmoreland v. CBS?

L. B. Sullivan won $500,000 in Alabama. That's a lot to pay if you're an individual reporter, and then you want to appeal.

Most free speech cases seem -- and I'm perfectly willing to be corrected by lawyers who know more than I do if my impression is incorrect -- to have been won by corporations. It's not clear to me this is by accident.

[Sebastian]

My name is Sebastian, and I approve of Gary's message. ;)

[russell]

"There's nothing there BUT people, to deny 1st amendment rights to."

This is actually not true. Corporations are a legal entity -- a "person" -- distinct from the people who participate in it either as owners or employees.

That, in fact, is the point of corporations, commercial ones at least.

"Most free speech cases seem -- and I'm perfectly willing to be corrected by lawyers who know more than I do if my impression is incorrect -- to have been won by corporations."

That's an interesting point, and one that shouldn't be ignored.

The flip side of all of this is that commercial corporations exert enormous influence on public policy in this country. Unions too, for that matter, but I'll pick on corporations because I don't think unions are given the same status of personhood or the same Constitutional protections that corporations, commercial or otherwise, enjoy.

Corporations can wield this influence because they have, literally, billions of dollars to bring to bear.

They do not do this is in the public interest. They do this in the interest of accumulating wealth. Those two things are not, by far, one and the same.

I recognize that corporate personhood has ingrained itself into our laws and institutions so thoroughly that it would be extraordinarily difficult to remove it. But IMO it's the most profoundly undemocratic aspect of modern American life.

Commercial corporations *are not* people, and they are not simply groups of people who band together to do some interesting or useful thing. The NRA, NARAL, and the Sierra Club, frex, all fit that definition: Lockheed Martin, Monsanto, and ADM do not.

The status and influence of commercial corporations in this country *profoundly* undermines popular sovereignty. I don't expect to see it change, frankly, because there's too much money involved, but it will be the demise of this country long before any of the other stuff we worry about will.

[JanieM]

My name is JanieM and I approve of Russell's message. ;)

[JanieM]

For a long time, when I was younger, more naive, less cynical, and probably less discouraged, I used to tell myself that as long as they couldn't force me to buy things, I still had a certain amount of a precious and very endangered kind of freedom.

Then Monsanto sued Oakhurst Dairy (I know at least one farmer in my neighborhood who sells milk to Oakhurst, so this is very local for me) to try to force Oakhurst to stop saying, on their milk labels, that they used milk from cows that had not been given bovine growth hormone, on the grounds that there was no scientific proof (according to Monsanto) that GBH was bad for people.

So notice right off the top: Monsanto is not in favor of free speech, except its own. I have a "right" (morally, if not legally) to know what I'm buying, and if I want to trust something that Monsanto (not self-interested at all, is it?) says hasn't been proven, that's my business, not Monsanto's.

Monsanto and Oakhurst settled out of court with an agreement that (if I rememer correctly) Oakhurst could say what they had been saying as long as they added a disclaimer saying that there was no proof....

This case came out somewhere in the middle, but if Monsanto had its way, my freedom to know what I'm buying and to make a choice informed by my values instead of theirs would be gone. If you can't know what you're buying, then that little sliver of freedom that I used to think I could keep forever just by not buying stuff is gone.

Okay, so I went to look for some cites on that case and came up with this, which includes this:

Updates. April 3, 2007: Monsanto Inc. filed a complaint to the US Food and drug Administration, asking it to ban labels identifying products as coming from cows not injected with artificial hormones.

I didn't even read the whole thing and I'm not going to chase down what has happened with that complaint to the USFDA, because I need (among other things) to go back to grieving for that young woman in the video Spartikus linked to in the other thread, and all the other Iranians who are taking their courage and their lives into the streets today.

But I'll just repeat:

What Russell said.

[Brett Bellmore]

"This is actually not true. Corporations are a legal entity -- a "person" -- distinct from the people who participate in it either as owners or employees."

I think you're confusing legal fictions with reality. The law treats a corporation as a legal entity distinct from the people who participate in it. BUT, it is none the less evident that if no people participated in it, there wouldn't be any corporation anymore.

Corporations don't speak with voice synthesizers, somebody opens their mouth and starts yacking. They might be paid to spout off, but nothing in the 1st amendment even suggests that you lose your right to free speech just because you're being paid to say what you're saying.

You can't silence a corporation without silencing actual people. There's nothing else there talking to silence.

[Gary Farber]

"... on the grounds that there was no scientific proof (according to Monsanto) that GBH was bad for people."

This is a complete digression, but do you have a pointer to some proof that isn't from Monsanto that GBH is bad for people? (Note: the question isn't whether it's bad for cows.)

"I have a 'right' (morally, if not legally) to know what I'm buying, and if I want to trust something that Monsanto (not self-interested at all, is it?) says hasn't been proven, that's my business, not Monsanto's."

Wait, so the FDA and the Consumer Product Safety Commission shouldn't have the (moral) right to limit commercial speech? If you want to trust whatever corporations or people say, that's your right, and no one should be able to morally, at least, if not legally, limit what they claim?

Possibly you may wish to narrow your claimed right here? (See here for some discussion of law on this, if interested.)

Russell, I have no disagreement whatever with your comment of 02:40 PM, but you seem to have jumped completely off the topic of your question June 19, 2009 at 03:27 PM: "As a practical matter, how would removing 1st Amendment protection from the NYT corporation prevent them from exercising their right?"

Can I take it that I've answered your question? Or no?

[JanieM]

Gary, I already said I am not going looking for more cites about this, and proof isn't really the point anyhow.

Maybe I didn't make it clear: Oakhurst was not saying that GBH was bad for people. They were just saying that there was none given to the cows they got their milk from.

That leaves it up to me to decide who I want to believe about whether GBH is harmful to people. Monsanto was trying to make sure I did not get to make that decision myself. (And in fact I do also care about whether it's harmful to cows, among other beings. Monsanto doesn't want me to get to decide about that either in relation to products I buy.)

If Oakhurst had been asserting that GBH isn't harmful, that would be a different case, but that's not what they were doing.

[Gary Farber]

"BUT, it is none the less evident that if no people participated in it, there wouldn't be any corporation anymore."

Robot-hater.

"There's nothing else there talking to silence."

Actually, there's usually an awful lot of money talking, as well. The real issue is the power of money to overwhelm the power of one person, one vote.

[JanieM]

s/b "If Oakhurst had been asserting that GBH is harmful...."

Again, Oakhurst had a label that said "Our milk comes from GBH-free cows."

Monsanto said, "Don't let them say that, because there's no proof that GBH is harmful."

I say: For a whole raft of reasons, I (and many other people) don't want to buy milk from cows that have been given GBH, and Monsanto is trying to prevent me from having the information I would need to be able to carry out that intention.

[JanieM]

Let me put it yet another way: Monsanto is trying to prevent me from knowing what I'm buying.

It is trying to prevent me from knowing a fact (no GBH in Oakhurst's cows).

Oakhurst's label was making no "claims" about GBH one way or another. Monsanto in fact was the entity making "claims" ("no proof it's harmful"), and demanding that that "claim" be put on another company's products.

[Jesurgislac]

Let me put it yet another way: Monsanto is trying to prevent me from knowing what I'm buying.

Yes. If you knew what you were buying, you might not want to buy from them, and you can't be allowed to do that.

Monsanto has webpages explaining how EU policies about GM products are "protectionist" and "against free trade". What this adds up to is:

1. EU legislation requires that all ingredients shall be clearly labelled/sourced.
2. Most people prefer to buy food products which are 100% non-GM.
3. So food makers and sellers, now unable to disguise the use of GM soya/other ingredients, prefer not to buy it.

Monsanto objects to this because allowing Europeans consumer choice, when they use it to reject buying from Monsanto, is "protectionism". How unfair.