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January 18, 2012

Comments

Seb, I have some thoughts on this but want to see a representative range of pro-speech limitation responses to your post first.

Given that this is a corporation trying to influence the outcome of the legislative process directly rather than indirectly, I would sooner compare this to lobbying than to buying political ads during an electoral cycle. That may be a difference without distinction, though.

The problem with corporations using their resources to affect public policy isn't, and never has been, the mere fact that they do so.

The problem is, and always has been, the anonymity of their influence, and the overwhelming disparity between how loudly they can speak to Congress (via campaign contributions) versus how loudly non- or anti-corporate voices can speak.

Citizens United made legal and overt what has been covert: "freedom of speech" has been subverted to "money = speech," so that the only voices which are heard, and the only agendas which are considered relevant, are those with millions of dollars behind them.

Also, and crucially, there is no longer any law or regulation requiring the contributors of those millions of dollars to show themselves.

The coordinated protests against SOPA and PIPA are "just like" major corporations anonymously and disproportionately funding political candidates and policy debates only if you're high and half-blind.

There are two very different things under discussion:

1. Corporation uses well-positioned web page to discuss issue and encourage citizens to participate and talk to legislators - ("bill X is a bad idea and here's why").

2. Corporation buys ads for, gives money to, or otherwise uses company resources to promote a particular candidate - no doubt out of the goodness of their heart, and favorable votes or bill sponsorship from the politician down the road will surely be entirely coincidental. Wink, wink.

Number 2 is the one suspiciously akin to "corruption". Number 1 is just more or less positive and open participation in democracy.

Now, I'm fairly sure that we're capable of distinguishing between issue advocacy and candidate advocacy/contributions at a basic legal level. So there's no technical difficulty about making a law applying to one and not the other.

The contention seems to be that there is a slippery slope in operation. You can't possibly restrict #2 without also risking #1. I'd like to see more evidence for that claim. (Particularly since I don't really see any evidence for the claim that politicians would shut down "this kind of thing" if they could.)

"There must be ways to attack corruption in politics without attacking free speech."

Indeed. The critical question is whether any of those ways involve legislation written by already corrupt politicians.

I believe that's why campaign 'reformers' focus so relentlessly on corruption of Congress by outside influences. Admitting that the corruption flows the other way makes the whole project of reform by legislation look terminally foolish: The reformers can be as high minded as they like, the implementation will be handled by people who make your average mobster look like a paragon of virtue.

"I'd like to see more evidence for that claim. (Particularly since I don't really see any evidence for the claim that politicians would shut down "this kind of thing" if they could.)"

McCain/Feingold, which was written to NOT disintguish between for profits like ADM, and non-profits like the ACLU or NRA, even though the authors had people constantly pointing out to them they were making a 'mistake'. Why? Because it wasn't a mistake, it was deliberate: They meant to shut down 'this sort of thing'. ADM was the excuse, NRA was the real target.


My thoughts:

Bravo for an interesting question.

I'm trying to come up with an analogy for a non-web company. Basically, I see it this way: you see this message if you are a google user. So, let's imagine a scenario involving the EPA regs on mercury. Instead of Google, we have a power company that relies on coal-fired plants. What is the equivalent to what Google did? Sending a flier out with this month's bill complaining that the EPA regs will raise their costs and, thus, your bill?

How would I feel about that? Aside from being opposed to the content of the message, the same. You know who the messenger is and can, if you choose, examine whether your interests really align with theirs.

"The contention seems to be that there is a slippery slope in operation. You can't possibly restrict #2 without also risking #1. I'd like to see more evidence for that claim. (Particularly since I don't really see any evidence for the claim that politicians would shut down "this kind of thing" if they could.)"

Your number one is "issue advertising" your number two is "candidate advertising". Campaign finance laws have nearly always attempted to limit both. Campaign finance politicians treat issue advertising as merely an end run around rules about candidate advertising.

It is easy to see why. In an important campaign you want to be able to say things like "we are against torture, George Bush isn't". But you can't identify which candidate is for or against torture if you can't name candidates in your advertising.

McCain/Feingold

I may be missing something, but none of the blackout sites I've seen single out any candidates up for election inside of 2 months, so McCain/Feingold would not seem to apply (if it was still in effect, that is).

And that's by design: M/F was intended to target "electioneering" (hence the part about mentioning of candidates by name in close proximity to elections), not "this sort of thing" (legitimate issue advocacy).

Using google's protest as an example of the beneficial effects of corporate speech is a bit problematic, since SOPA itself is clearly a product of corporate lobbying. Thus, given that corporate corruption already exists, it's a good thing that corporations are speaking up in those cases where they agree with the public.

In some sense I think a straightforward "Google endorses Barack Obama for President" or "Exxon endorses Mitt Romney for President" ad would be just fine. The problem is in this area, corporations want to have it both ways. On the one hand they want to curry favor with/elect politicians to advance their business interests, on the other hand they know that if they did do the above they would be alienating a huge portion of their customer base.

So they do this indirectly by, e.g., giving money to the U.S. Chamber of Commerce, or the Business Roundtable, or some more anonymous vaguely noble-sounding group like "Americans for Mutha Fukkin Jobs" or what have you. Thus, they obscure what they're doing from the general public while still promoting politicians that advance their business interests.

Whereas in the present case there is no question about what Google's doing and why.

I'll speak as the anti-Seb on this point.

I don't think it's corruption. The more relevant question is whether it's constitutionally protected speech.

In russell's imaginary perfect world, it might not be. It would depend on whether corporations were extended the privilege of engaging in speech on public matters by law. As opposed to as a matter of constitutional right.

Does this mean that Google might be prohibited from putting their very eloquent black band on their logo? Yes, it might. I personally could live with that.

Not just live with it, I don't think it would bother me at all.

In any case, what would absolutely be protected would be the right of Sergei Brin and Larry Page, frex, or the members of the Board of Directors of Google, to buy all of the ad space they wanted to buy, on any medium or combination of media they wanted to buy it on, to say whatever they wanted.

Including publishing an image of the Google logo covered by a black ban.

All they would have to do is pay for it with their own money, and sign it.

Likewise, if 1,000,000 users of the Google search engine wanted to chip in $5 each and do the same, mazel tov.

Also protected would be the entirety of Wikipedia, because unlike Google, which is a tool, Wikipedia is content, authored by humans, and offered, for free, in the public space.

Also protected, blogs, for the same reason.

Long story short, I would trade Google being able to put a black banner on their logo in exchange for corporate Constitutional personhood in a heartbeat.

Great question Seb, I always end up on the other side of the fence from you on this, but I also always appreciate your thoughts and comments.

Your number one is "issue advertising" your number two is "candidate advertising". Campaign finance laws have nearly always attempted to limit both. Campaign finance politicians treat issue advertising as merely an end run around rules about candidate advertising.

I'm certainly no expert, but as noted above, I'm not convinced this is the case. Or if it is, McCain/Feingold isn't an example. I mean, some "issue" advertising clearly is a circumvention attempt, and M/F just sought to draw a workable line around it. That's the exact opposite of evidence that anyone views all issue advertising as an end run around the rules.

Even under M/F, the SOPA blackouts would be perfectly legit. As would most actual issue advocacy, which usually takes a form something like "here's why you should think XYZ, please call your legislators (Sens. P & Q and Rep. R) and tell them they should too," and tends to occur far outside the proscribed electioneering periods.

Now, M/F may or may not have been exactly the best place to draw that line, but I do think there's a line you can draw somewhere in there. You can't necessarily catch ALL the corner cases, but there's nevertheless a not-so-subtle difference between "call your legislator and tell them you support X" and "vote for/against Q because of their stance on X".

Google's protest, and the corporate lobbying which produced SOPA, are similar in that both are examples of corporations trying to influence legislation. But the similarity ends there. Google is being quite open about what it is doing and that it is the company doing it.

Can anyone name (without doing a web search) the companies which pushed for SOPA? Me neither. Because they were hardly being forthright about what they were doing.

On balance, I can live with companies (or, more accurately, their CEOs and Boards) having opinions and making them known. I can live with them asking their customers to contact their legislators on the subject. But having them giving funds to legislators, to their campaigns, or to PACs which are nominally (but only nominally) independent -- that's a difference of kind, nota difference of degree.

"Americans for Mutha Fukkin Jobs"

Ugh funny.

This is not simply a protest of corporations, but of individuals darkening their own personal sites to illustrate the potential effect of SOPA. As such, they use their supposedly Constitutionally protected freedom of speech to help draw attention to potential censorship -- and that is so far from corruption that it can't see it over the horizon. It is not just a 'corporate protest'.

How does freedom of the press, as opposed to freedom of speech, figure in, if at all (lack of by-lines?), when it comes to Google and other websites?

Can anyone name (without doing a web search) the companies which pushed for SOPA?

Warner Brothers. Universal. Sony. Really any member of the MPAA.

Because they were hardly being forthright about what they were doing.

Actually, I think the MPAA at least has been very public about their advocacy of SOPA/PIPA. And they're the public front for the big movie studios. They're not hiding it at all.

To second Russel's view: even though I don't find actions in the style of the SOPA blackouts problematic, I do NOT believe that this kind of corporate speech is constitutionally protected.

I don't see any conflict in those positions.

Also: to add to my first comment, much of what, e.g., the MPAA, does is in distinct category #3: lobbying.

Lobbying is tricky. It's sometimes problematic, but it's also not necessarily wrong. In principle, lawmakers should seek input from industry experts, issue interest groups, and so forth. But they should also know how to weigh them against each other and the public interest, which they often fail to do.

In theory, I think if we could remove the inappropriate quid pro quo aspects of campaign contributions and lobbyist access, lobbying wouldn't necessarily be such a bad word. (Politicians might still make stupid decisions based on personal bias and faulty information, but that's a different problem.)

(Oops, that's Russell's view, obviously.)

Some questions:

(1.)If money=speech, then how can anyone have the unmitigated gall to decry corruption in the first place? The asserted equivalence dismisses the idea of corruption out of hand.

(2.)If slopes are slippery, how is their direction determined? What makes more sense: Laws against corporate speech result is silly contradictions that limit corporate 'speech' in other realms; or the fact that more money concentrated in fewer hands speaking 'freely' will lead to the increasing concentration of economic and political power and the strangulation of democracy?

(3.)Why is a regulation limiting corporate speech imposing an unconstitutional limit on free speech, but outlawing the secondary boycott is not?

(4.) Why does Russell always say sensible things?

It's not that money equals speech. It's that regulations of money equal regulation of speech, if the regulations are contingent on the content of the speech.

We're not talking about a ban on advertising during the relevant period. We're talking about a ban on advertising which happened to mention McCain or Feingold. Because they didn't like what was being said about them.

There's a school of thought that the only people who ought to get to say anything during a campaign are the candidates themselves, and everybody else ought to STFU. I can understand why candidates take this position, and try to write it into law.

But why would anybody else treat it with anything less than the contempt it deserves?

Money equals speech is just shorthand for the idea that you don't get to circumvent real Constitutional rights by just banning the transactions of money surrounding them.

I take you would be ok with regulations stating that while the right to an abortion remains untouched, no doctor may charge for one and no woman may pay for one?

Does that mean that money equals abortion?

A better analogy might be that you say no doctor may charge more than one million dollars for an abortion and no woman may pay more than that for one. Of course, that won't prevent anyone from getting an abortion, just as limits on campaign contributions won't prevent anyone from saying anything he or she likes.

Random questions to myself:

Would I have a problem with Warner Bros, Universal, or the MPAA supporting SOPA on their corporate websites? No. Why the hell should I?

When B(ritish)P(etroleum) buys TV ads touting its good works in the Gulf of Mexico (without mentioning that little spill that made the good works necessary or any legal obligations that make the good works compulsory) should I give a damn? I can't see why.

If GM decided to ship every car with a "Re-elect Obama" bumper sticker already on it, would I have standing to object? I dunno. FTR, I am not a customer, employee, or stockholder of GM -- I am simply a citizen of the US.

--TP

Does that mean that money equals abortion?

Depends. Are we starting from the premise that abortion is an individual constitutional right, like speech?

--TP

Well, I think we could safely say that prohibiting a corporation from paying any money to get an abortion for itself would not interfere with any person's ability to get one.

Politicians have always hated folks with their own press (or radio station or television station or internet site). The adage of "don't pick a fight with a man who buys ink by the barrel" clearly needs to be updated.

Why is Chris Dodd allowed to lobby his colleagues? I thought they had rules for that.

Hey, McKinney - happy with your "representative range of pro-speech limitation responses" so far?

Prosecutors and federal courts have also been heading the other direction on the money=speech equation...that is speech=money.

Speaking "favorably" about Hamas = material support = federal felony.

And thus is the First Amendment truly killed off.

Less snarkily, I will go so far as agreeing with the first paragraph of Brett's most recent comment, and more or less the whole of Sebastian's.

The problem with both is the unstated that assumption that corporations have an implicit right to unrestricted free speech, constitutional or otherwise.

Sebastian asked:

"Does that mean that money equals abortion?"

Colbert needs to have Sebastian on his show as a guest. A suspect, Sebastian being a satirist in his own right, he would get Colbert's deal, unlike many of the nincompoops who agree to be torn to bits by Colbert (or Stewart's kids, or the Smothers Brothers, for that matter) while maintaining clueless and gravely earnest expressions on their faces.

But to answer the question with another, I don't know, when Intel kills a start-up project under their corporate supervision, is that abortion?

When WalMart put the pillow of scaling comparative advantage over Mom and Pop's dozing faces down the street, was that euthanasia?

Corporations ... who have corporations, are the luckiest people in the world, are they not?

And, natch, if money is speech and money is abortion, then abortion is speech.

Which makes Citizens United a veritable Planned Parenthood.

I'm not too fond of abortion or money, and people aren't too far behind.

But I love babies and little kids. Like shiny new pennies they are, until they grow up to be hundred dollar bills and can buy votes.

Actually, I think the MPAA at least has been very public about their advocacy of SOPA/PIPA. And they're the public front for the big movie studios. They're not hiding it at all.

They absolutely haven't. Their strategy has plainly been to draw as little attention to this bill and get it through as quickly as possible. There is evidence that news outlets owned by pro-SOPA media companies have mentioned the bill significantly less.

Which is not to say they conceal their position. Obviously they can't do that. The people that matter, sympathetic politicians and business leaders, need to know how MPAA feels about this. But public attention is another matter; they know they have extremely little sympathy to gain there.

There are a few things in this area where any kind of legislation will fail. The modern way is not to bribe an elected official with money but to threat him (or her) with withholding the bribe while supporting his or her rival. Given that elections are hideously expensive even in well-regulated countries with free-of-charge access to the broadcast media during election season such threats work even with no money changing hands. And there is no way to ban a 'denial of support' in a free society. Also on the distinction between issue and candidate advocacy there are numerous ways to circumvent that that are impossible or near impossible to prevent, especially in a two-party system like the US. Typically candidates differ on issues. Let's simplify it for a moment to yes/no on any given issue. Each candidate will have a pattern of yes/no for a set of issues that can be deducted by any normal person. Even with a limited number of issues it is likely that each candidate will have a pattern distinct from any other. Advocating for a specific candidate can thus be done by advocating for that specific pattern without mentioning a candidate at all (provided the target audience knows this which in most cases can be taken as given). Unless it is extremly blatant (although it often is) there is not much one can do against that (again: in a free society).
The main problem I see is the disparity of means to use those methods. An influential preacher or a controller of large sums of money can play this game far more effectively than the average person.
As for Brett's standard counter that the effective flow of corruption is predominantly outwards not inwards, I'd say it's mutual and inseparable. The one can and will not exist without the other*. At best it is balanced on a low level, at worst it is an arms race or both sides simply merge. But even in the last case the corruption simply moves to other places with those on the levers intriguing against each other. The only way out would be a robot king controlling everything while not being controlled in the slightest by anything beside itself.

*if those in had no power there would be no need to influence them from without.

While this is pretty much 'What Russell said' comment, I do want to thank Seb for posting. I was going to try and fulfill my New Year's resolution of a regular mid week post with something about the Jodi Cantor book about the Obamas, which would have just been the king thread in a different key, I think.

Jack Lecou points out the notion of 'electioneering' and I'm always perplexed why the US can't do something that deals with something in close proximity to the election. I realize that it is an arbitrary line, but here in Japan, everyone has to shut it down 12 days before the election and various forms of election advertising are highly restricted. It gets a bit strange (laws have been interpreted to ban all forms of Internet election advertising) While I don't think the Japanese gerentocracy is something that the US should be emulating, and the effect of a lot of these laws is to benefit the incumbent, it seems like the US has no idea of trying to deal with electioneering (I also think that's why the Virginia ballot caused so many problems, because a lot of the Republican candidates seemed to assume they could just walk a couple of weeks before and put their name on the ballot, so I guess everything has a silver lining) Any idea why this is so?

"Well, I think we could safely say that prohibiting a corporation from paying any money to get an abortion for itself would not interfere with any person's ability to get one."

Really? Blue Cross/Blue Shield isn't a corporation? The things you learn...

I don't think it's not that independent expenditures can't be part of something corrupt. Sure, media corporations should strike an under the table deal with members of Congress, that they pass incredible expansions of copyright, and give the corporations the power to shut down any site on the web which so much as mentions bittorrent...

But the idea that you're going to basically shut down independent expenditures during the part of the campaign when they matter, based on a presumption of corruption? It gets the burden of proof backwards.

There is evidence that news outlets owned by pro-SOPA media companies have mentioned the bill significantly less.

FWIW, I was actually surprised when I heard Time Warner's support plainly stated yesterday on CNN International, but it's also mentioned in the links to the CNN website if a google search is done for CNN and SOPA. Which makes it all the more interesting that Wolf Blitzer's segment didn't disclose that fact, I suppose.

Really? Blue Cross/Blue Shield isn't a corporation? The things you learn...

Well, it's certainly a corporation.

If you think it's likely to happen, I'll let you go ahead and let me know when it gets pregnant. That would seem like a precondition for getting itself an abortion...

"Well, I think we could safely say that prohibiting a corporation from paying any money to get an abortion for itself would not interfere with any person's ability to get one."

Really? Blue Cross/Blue Shield isn't a corporation? The things you learn...

See if you can figure out what you did wrong here. I've provided a helpful hint.

A corporation could of course get an abortion for itself in exactly the same way that a corporation speaks--by doing so for some of its members.

But it goes much further. Before Citizens United, the DOJ argued that corporations could not spend money on any instrumentality that contributed to the banned speech--that it would be a violation for a publishing corporation to spend money on printing presses that published such speech, or ink, or paper. That means that even if the corporation is not funding the speech itself, it can't participate in the regular activity of commerce surrounding the speech (it could not for example sell the book written by someone else, or ship the book if they were Amazon). The abortion analogy would be that corporate owners of building could be banned from providing space where abortions would be performed. That would obviously be attacking the right to abortion, and just as obviously the DOJ was assaulting freedom of speech.

Now notice what I did there? I said that the Department of Justice did something. Of course the Department of Justice can't DO anything. It has people to do that. In this case the person who argued that position in front of the Supreme Court was Elana Kagan. She is now a Supreme Court Justice.

...in exactly the same way that a corporation speaks--by doing so for some of its members

Sure. Much as a corporation owns assets by assigning the rights to shareholders. Or takes on debts by parceling out payment obligations to shareholders. Or faces criminal penalties by passing those penalties on to shareholders.

Oh. Wait.

Thanks, but I remain unconvinced by the argument that an entity whose sole purpose of existence is to not be identical with its constituent human beings nevertheless necessarily becomes such when it comes to speech.

The abortion analogy would be that corporate owners of building could be banned from providing space where abortions would be performed.

Incidentally, unless I misunderstand the DOJ argument you relate (which is possible), you meant to write:

"The abortion analogy would be that corporate owners of building could be banned from providing space where illegal abortions would be performed."

Which does not seem extraordinarily unreasonable. (And does not in itself seem to be much of an [additional] attack on abortion - since the affected abortions are ones already prohibited.)

Before Citizens United, the DOJ argued that corporations could not spend money on any instrumentality that contributed to the banned speech--that it would be a violation for a publishing corporation to spend money on printing presses that published such speech, or ink, or paper.

I'd be interested to read that argument, Sebastian. Would you mind providing a link or a cite?

Hey, McKinney - happy with your "representative range of pro-speech limitation responses" so far?

I think I do. Below are the two dominant themes on the left.

In some sense I think a straightforward "Google endorses Barack Obama for President" or "Exxon endorses Mitt Romney for President" ad would be just fine.

Does this mean that Google might be prohibited from putting their very eloquent black band on their logo? Yes, it might. I personally could live with that.

Not just live with it, I don't think it would bother me at all.

The school's are 'content' and 'ban'. The 'content' school is that it's ok for corporations to say some things, but not others. The 'ban' school says that corporations can only say as much or as little as the state permits because, as corporations, they have no free speech rights(and by extension, no constitutional rights at all). But, the 'ban' school is really 'content' unless, in Russell's world, all corporate speech, including commercial advertising, can and should be legally banned.

Anything short of outlawing any form of corporate speech invites, if not requires, state policing of speech content. All roads lead to this result, eventually.

Which is why I continue to marvel at these discussions. Each proponent of some kind of limit on corporate speech has his or her own lines on when, what and how a corporation might be allowed to say something that has a political ring to it, but these are all simply matters of degree, not kind.

Ultimately, the state would be the arbiter of what can and cannot be said.

This fundamentally statist position scares the crap out of me. I don't believe for a minute that anyone here thinks of their solution(s) as anything but benign field-leveling.

An individual's good intentions, however, don't carry forward to the state. Seb has documented how extreme the Obama's administration was in its quest to suppress speech of any and all kinds by any and all corporations. The administration's position on speech is coequal with the worst tyrannies. That virtually no one (except Ral, as I recall) even pauses to consider what Seb has said, and to express outrage about it, illustrates the problem: vesting that degree of power in the state isn't really that much of a concern in for many here, if the higher goal of controlling corporations is served. Or, putting it differently, the end justifies the means.

Or, as I've put it in the past, liberals want to forge the govenment into a sword with which to slay their enemies, and never stop to think for a moment that their enemies will someday get their hands on that sword.

Some days I think they're just short sighted. Others I think it's because they don't just mean to slay their enemies metaphorically. This attitude does make a bit of sense if you figure on winning the battle for good, on fundamentally changing the system so that your oposition can never replace you.

The Constitution is, I think, in it's end game. Perhaps liberals are looking beyond the next election, to the final score?

This fundamentally statist position scares the crap out of me.

Statist? You mean that state that is the mother of the corporation? You don't think a mother should be able to exert control over her unruly child?

Ultimately, the state would be the arbiter of what can and cannot be said.

First of all, that sentence is supposed to read:

"Ultimately, the state would be the arbiter of what can and cannot be said by corporations."

Which, to me, renders it far less scary right off.

But secondly, maybe I'm just not as paranoid, but it seems to me the state (broadly construed) is already pretty much in the business of being the arbiter of what can and cannot be said [and when, and where, and how]. Most of these restrictions we find pretty reasonable or necessary: The classic yelling 'fire' in a crowded theater. Or prohibiting a judge from making political endorsements from the bench. Or restricting the publication of child pornography. Or prohibiting the use of a sound truck in a residential neighborhood after midnight. Or putting up an excessively distracting billboard on a busy street. Etc. Etc.

Even if you don't agree with all of those, most people probably agree with some. The principle that there needs to be at least some rules and arbitration is common-sensical.

All of this messy business with details and fine tuning certainly means that, as with every other aspect of good government and democracy, we can't just put free speech on autopilot. We have to be vigilant, and there's necessarily some leeway in the system where overreach or abuse can creep in.

But it doesn't really support paranoia about unusually steep and slippery slopes either.

Corporate political speech certainly seems pretty akin to some of the other categories of regulated speech to me. As with sound trucks or child pornography, there's some harm to the public going on. And as with, e.g., judges saying stuff in their official capacity, there're elements of inappropriate/unfair use of resources or position, as well as the fact that prohibiting judges [officers/shareholders] from saying things in their capacity as a judge [as a corporation] does not interfere with their free speech rights as a private citizen.

Or, as I've put it in the past, liberals want to forge the govenment into a sword with which to slay their enemies, and never stop to think for a moment that their enemies will someday get their hands on that sword.

You fundamentally misunderstand liberals, Brett, unless by "enemies" you mean things like poverty/hunger, racism, and such. Those enemies, I think it's fair to say, liberals would like to slay. Most (damn near all) recognize that they probably won't ever be slain, but can be combatted vigorously.

But that's not what you meant. You meant political opponents. At which I can only roll my eyes. As the GOP fights to harm groups that tend to support Dems (unions, fer instance), in the aftermath of Citizens United, you look on and say to yourself "the liberals have nearly succeeded in their dastardly plot to turn the US into a 1-party state!"

Really? Wow.

Or, as I've put it in the past, liberals want to forge the govenment into a sword with which to slay their enemies, and never stop to think for a moment that their enemies will someday get their hands on that sword.

A strawman. I assure you liberals think very hard about the downsides of swords.

It's just that we also think about the fact that the "enemies" who are plaguing us tend to already have swords. Or maces. Or crossbows. Or flamethrowers.

So worrying about what they might one day do if they go their hands on it isn't really sensible. You still kind of need that sword. Better to forge the sword and just try to hold on tight.

(Which I daresay is better than the "small government" approach, which, in the spirit of the above, we could characterize as: laying the sword down on the ground and hoping that 1. nobody else picks it up, and 2. that von Mises or Rand or whoever was right about swords working pretty well on autopilot if you just leave them alone...)

Hmm. Like Rob, I took "enemies" to mean broad human problems like racism, hunger or corruption.

Did you really mean political enemies, Brett? If so...ugh.

Oh, yes, he meant exactly that, and actually believes it. Even while he himself stockpiles guns, just, you know, in case.

Anything short of outlawing any form of corporate speech invites, if not requires, state policing of speech content. All roads lead to this result, eventually.

Which is why I continue to marvel at these discussions. Each proponent of some kind of limit on corporate speech has his or her own lines on when, what and how a corporation might be allowed to say something that has a political ring to it, but these are all simply matters of degree, not kind.

Ultimately, the state would be the arbiter of what can and cannot be said.


(emphasis added)

By your standard, it already is. After all, last I checked corporations aren't allowed to e.g. make death threats, and and are held liable for libel. So unless you're saying these are unreasonable and unacceptable limits of the free speech rights of Statutory Americans (and by corollary, Uterine Americans), you're arguing for your own personal line on where corporate speech can be limited.

(And the above examples can certainly be done within the domain of "political speech", so no backsies trying to scale down your grand generalization to something a slight degree more easily defended.)

(...or what jack said...)

McTx: Seb has documented how extreme the Obama's administration was in its quest to suppress speech of any and all kinds by any and all corporations. The administration's position on speech is coequal with the worst tyrannies.

And the ability of states to abolish corporations altogether would bee coequal with....?

Ultimately, the state would be the arbiter of what can and cannot be said.

liberals want to forge the govenment into a sword with which to slay their enemies

I think it's because they don't just mean to slay their enemies metaphorically.

Hard to know how to reply to this stuff.

Here's what I want. I want to be able to set limits on whether, and to what degree, corporations are allowed to engage in the American political process.

Simple as that.

We intend to have a government by, of, and for the people. Human beings are people, corporations are not.

So, people can participate in any way they like. Corporations, only to whatever degree we, the people, decide to allow.

That's about it. Nothing more or less complicated than that.

You show me anything that I have written, said, or done, anywhere, anytime, that calls for the rights of any human being to be limited in any way.

Then you can call me a statist, or am endorsing censorship, or claim that I'm looking for a "sword" to "slay my enemies".

Until then I call bullsh*t. Or, more accurately, until then I am not going to bother engaging the topic with the two of you.

Seb I don't mind discussing this with, or Farber, or folks who are actually interested in talking about the pragmatic reasons that it might be a bad idea to limit corporate personhood.

You guys, with the weird paranoid fantasies of Absolute State Control, I have no idea how to have a conversation with. Because you're not talking about anything I'm talking about.

I distinguish between humans, and legal instruments created to aggregate capital and engage in commerce. Legal instruments which exist, in fact, specifically to legally NOT BE the people they are a proxy for.

I distinguish between those things. So does the law. So should you.

And not for nothing, but the enemy slaying talk ain't coming from my side. So give that a freaking rest.

I'd like to slay the enemy that is the outsized influence of large sums of money on our political process, which mainly comes from corporations, since they have more money than individual people.

I know, I'm practically Stalin, right?

I want to be able to set limits on whether, and to what degree, corporations are allowed to engage in the American political process.

Then you can call me a statist, or am endorsing censorship

You guys, with the weird paranoid fantasies of Absolute State Control, I have no idea how to have a conversation with. Because you're not talking about anything I'm talking about.

I am not going to repeat myself (much), but I would request that you reread my comment and think it through. If a corporation is allowed to advertise at all, i.e. speak in its corporate capacity, the inevitable next question is "what is the corporation saying, what imagery is it projecting?" Suppose a corporation, in the midst of an unpopular war, chose to embellish its advertisement with American flags and a small statement, "We support our troops." Isn't this in some degree political? It might be minimally political, it might be the kind of political speech that is sufficiently neutral as to cause you no personal angst, but that is not how laws are written. There has to be, if you are going to have a law, some definition of what is or is not political speech. Once you have that law, the state becomes the decider of what can and cannot be said by corporations, period. Including the print and air media.

As history amply demonstrates, once the state outlaws something by drawing a line, people and companies, and their lawyers, figure out a way around or over or under the state-drawn line. If the state moves to stop the end-runs and whatnot, it has to pass more laws and limit speech further. When new loopholes are found, newer laws get written, at least in theory, to close those loopholes (or, we've simply created a silly mass of do's and don'ts that accomplish very little substantively).

Each of these laws necessarily would address speech content: has the corp slipped from purely commercial speech to quasi or implicit political speech?

I don't impute bad motives to any who comment here. I tried to make that clear. But, if it is offensive to say that Russell's approach, or Ugh's, or anyone else's, would have the unintended effect of potentially promoting a level of state intrusion into the realm of speech that exists only in dictatorships, is that out of bounds at ObWi? Because if it is, I am pretty sure I can find many, many examples of me being accused of a much more personal mal-intent by a number of commenters here.

I would also suggest that Seb's detailed discussion of what this administration has actually advocated before our supreme court be read and comprehended for its incredible breadth. If that isn't scary, I don't know what is. And it isn't paranoid speculation about a worst case future, it's what actually happened. It was statism, through and through.

Including the print and air media.

Freedom of the press is listed as a right as something distinct from freedom of speech, no?

But, if it is offensive to say that Russell's approach, or Ugh's, or anyone else's, would have the unintended effect of potentially promoting a level of state intrusion into the realm of speech that exists only in dictatorships, is that out of bounds at ObWi?

Not out of bounds, but patently silly. How does my freedom of speech depend on that of a corporation?

"Here's what I want. I want to be able to set limits on whether, and to what degree, corporations are allowed to engage in the American political process.

Simple as that."

But it isn't as simple as that, cannot be as simple as that, when every newspaper, every book, every radio program, every TV program, every magazine, is published through the agency of a corporation. The power to silence corporations IS the power to silence everybody, save in groups so small and unorganized as to be meaningless.

It can't be as simple as that, when "corporations" include not just money making enterprises such as ADM, but also groups of Americans who've gotten together to advance viewpoints, like the NRA.

No, it can never be as simple as that, unless you trust government to an insane degree. Or expect to be controling it yourself...

There has to be, if you are going to have a law, some definition of what is or is not political speech.

McK, unless I am mistaken, this exists now.

But it isn't as simple as that, cannot be as simple as that, when every newspaper, every book, every radio program, every TV program, every magazine, is published through the agency of a corporation.

Again: Freedom of the press is listed as a right as something distinct from freedom of speech, no?

That, and the individual right to freedom of speech applies to most of those situations. The corporation is not speaking - the radio host or guest is, the book's author is, the person who wrote the article is, the TV show host or guest is.

Yes, all of that potentially allows corporations to get around some things to some degree, but it still beats letting them spend as much as they want on political endorsements of candidates for elected office.

It can't be as simple as that, when "corporations" include not just money making enterprises such as ADM, but also groups of Americans who've gotten together to advance viewpoints, like the NRA.

Why don't the proponents of corporations having rights identical to humans ever address the fact that but for the state, corporations wouldn't exist. People can associate in all kinds of ways, but the corporate form is a very specific statutory creation that shields people from personal liability. So, don't use that personal liability shield mechanism, otherwise known as a corporation, as your free speech mechanism.

Let's abolish corporations entirely. Then we don't have the problem. Repealing corporation statutes isn't unconstitutional. The NRA could still have a convention, and NRA members could say whatever they wanted, as members of an organized unincorporated association.

Just joking, of course. There are lots of good reasons to have corporations so that people can engage in business enterprises. But not so that corporations can be fake "people" with the rights, but not the corresponding liabilities and risks that real humans have.

But it isn't as simple as that

Well yeah, it bloody well is.

The government has to get a warrant to tap your phone. Or, they used to, anyway. Why? Because you, a human being, have a 4th Amendment protection against unreasonable search and seizure.

The phone company doesn't hold the right, you do. But the government cannot make the phone company do stuff without the warrant. At least, as noted above, until fairly recently.

The fact that a corporation publishes a book, or produces and distributes a TV show, etc etc etc, does not mean that those corporations have to hold the 1st Amendment right to speech in order for you, the author, to write the book or the TV program script, or act in the TV show, etc etc.

And I believe I am long, long, long, long, long since on the record as regards groups of human beings organizing to collectively engage in protected speech.

And yes, we can distinguish between corporations organized to engage in business, and corporations having memberships limited to rights-holding US persons and organized for specific purposes. We do it right now, each and every day.

Go look at the weird smorgasbord of organizations available under the 501(c) laws. If there is one thing we are already good at, it is distinguishing between types of corporate entities and what they can and cannot do.

This is not some weird Martian innovation pulled out of my butt. We do this stuff now, just not applied in the particular way we are discussing.

Or expect to be controling it yourself...

Just want to add that this kind of paranoid aspersion applied to myself always makes me, literally, laugh out loud.

Yes Brett, I am a closet Stalinist. I'm just waiting for you to drop your guard and forget to load your gun so that I can have you whisked away to a FEMA camp in Idaho.

I don't mean to be picking on you, but seriously, do you believe this stuff?

Only Hannah Bumpass has gotten a bigger chuckle out of me today.

McK, unless I am mistaken, this exists now.

Not really. The only instance I can think of quickly is the 503(c) limitation on "political activities" or some such, without defining what that is. The gray areas are huge. If you look at what Seb has documented, you come away with an assertion of federal power over speech that dwarfs the issue of "is a corporation a person for the purposes of free speech (or any other constitutional right)?"

Whether a statement is political is entirely subjective and contextual. You could have a candidate look-alike saying something silly in a commercial context two weeks prior to an election--political or not? The state decides. And, if the Obama administration had is full sway, every entity in the line of commerce leading up to that commercial is in hot water.

Or better, you could have individuals sponsor an add telling outright lies about a corporation and it relationship with a candidate or an issue and the corporation could not respond in the media, or at least, would have to tailor its response so as to avoid state scrutiny.

All of the above would clearly be statist, totalitarian conduct if applied to individuals. If true for individuals, it is true for corporations, the difference being that it is, apparently, ok to treat corporations in this way. And, I assume you mean all corporations, profit and nonprofit, publicly traded and privately owned--or, would some corps have rights that others do not?

And, as a final note, I am well aware that you harbor no desire whatsoever to limit personal freedom. Yet, your regime would do exactly that, at least to a degree. One of the reasons why membership lists in private organizations cannot be obtained by the state is to allow individuals the right to band together in anonymity to advance causes that, if their involvement were known, could affect their employment and other relations or produce retributive acts by the state. As in, for example, the various civil rights groups in the 60's.

To reprise an earlier discussion:

So we're f*cked then, right?

If that isn't scary, I don't know what is.

Oh, get up off the fainting couch, granny. The existence of the "Department of Homeland Security" alone is 10,000 times as scary as the desire to get corporate money out of politics.

Or better, you could have individuals sponsor an add telling outright lies about a corporation and it relationship with a candidate or an issue and the corporation could not respond in the media, or at least, would have to tailor its response so as to avoid state scrutiny.

The president of said corporation is, presumably, an actual human being -- in all likelihood a wealthy one! with signifacnt personal money to spend on TV ads! -- who has free speech rights of his own.

All of the above would clearly be statist, totalitarian conduct if applied to individuals. If true for individuals, it is true for corporations,

So, if a corporation is found guilty of murder, can we sentence it to life in jail (i.e., dissolve its operations)? If true for individuals, then true for corporations, right?

Why don't the proponents of corporations having rights identical to humans ever address the fact that but for the state, corporations wouldn't exist.

Yes. I've gotten tired of asking about that small bit of trivia, myself.

And, I assume you mean all corporations, profit and nonprofit, publicly traded and privately owned--or, would some corps have rights that others do not?

Why not? Some people have rights that others do not.

Yet, your regime would do exactly that, at least to a degree.

And your's wouldn't? After all, your "regime" will lead inexorably to increasing concentration of power as the wealthy use the government to increase their wealth and then use that wealth to enhance their power to pass more laws enabling more economic rent seeking, looting, etc. That is what YOUR regime(s)has been doing for the last 40 years. So I guess that makes you responsible.

Like Rob said, I guess we're just f*cked then, because your absolutist position leads logically and inevitably to the ultimate arbiter....political violence.

Sigh.


Not really.

If you say so. You're the lawyer, not me.

If true for individuals, it is true for corporations, the difference being that it is, apparently, ok to treat corporations in this way.

We could add it to the list of 10,000 other ways in which we treat corporations and individual human beings differently.

And, I assume you mean all corporations, profit and nonprofit, publicly traded and privately owned--or, would some corps have rights that others do not?

Please see my 3:33 to Brett.

bobbyp makes a good point, the 1st Amendment is not the only Constitutional right/provision at play here.

And further to russell's 4:09, there are limits that can be placed on speech consistent with the 1st Amendment, so it's not like McCain-Feingold was some sort of un-explored ground.

Did you ever stop to think that it isn't just the corporation which is a creation of government, but also the need to use corporations? That it isn't just an accident or a fad that so much of our life is funneled through these institutions, but rather, it's a result of the way laws are written? Written so as to make much of our lives infeasibly expensive or perilous if we don't use corporations to accomplish them?

What good it it to say that, if you want your publishing to be protected by the 1st amendment, you need merely not do it through a corporation, if the law makes sure nobody can keep a non-corporate publisher in business? What good is it to say that, if you want to join with other people to petition your government for redress of grievances, or influence the outcome of an election, you need merely not do so through a corporation, if the government has set up a system where doing so will leave you open to being sued into oblivion?

How DARE the government which herds us into these institutions use our response to it's pressure as an excuse to restrict our rights! Maybe if we were free to publish and so forth without forming corporations, there might be some excuse. But not in THIS world.

Why don't the proponents of corporations having rights identical to humans ever address the fact that but for the state, corporations wouldn't exist.

Yes. I've gotten tired of asking about that small bit of trivia, myself.

I haven't addressed this because it doesn't really mean much, at least not to me. But for individuals, states wouldn't exist. In a democracy, saying something is a product of the state is no different that saying it is a product of the people.

And, no one is saying that corporations have rights identical to individuals, only that corporations have most of the same constitutional rights as do individuals. The constitution is a limited document. States can do things to corporations the feds can't. Some rights can't be exercised by corporations.

Russell, the Nike case is a commercial speech case. The article notes how the lines are blurred, it points out all kinds of problems that arise when courts try to evaluate and regulate speech content. And, it does not define political speech. And, it is a state court opinion apply state law.

I did see your 3:33, but after the fact. I am afraid that what seems simple in theory becomes remarkably complex in practice. Today, 503(c)'s are forbidden from political activity. Do you think the NAACP, the ACLU, Planned Parenthood and the NRA are apolitical? That preachers don't preach politics from the pulpit? The prohibition against political activities is rarely actually enforced because it is so damn difficult to do so and doing so inevitably raises the specter of state bias: if the state goes after 503(c)'s that criticize the current administration, or doesn't go after 503(c)'s that support the administration, you have selective enforcement, which is, to me, about as bad as you can get: the state permitting favorable speech and persecuting unfavorable.

503(c)'s are supposed to be non-profit. Yet, many of them make money, i.e. show a profit. Do you want the state doing an end run on unpopular speech by selectively auditing 503(c)'s who it doesn't like? I don't.

What good it it to say that, if you want your publishing to be protected by the 1st amendment, you need merely not do it through a corporation...

What good is it to say that, if you want to join with other people to petition your government for redress of grievances, or influence the outcome of an election, you need merely not do so through a corporation...

Who is saying such things?

So Brett are you saying that the government created corporations as a means of herding the citizenry into forming such corporations to protect their rights, only to turn around and extract political rents from the corporations subsequently formed? Or what?

Russell, the Nike case is a commercial speech case.

Yes, exactly right.

My point in citing the article was because it contains a good, concise discussion of the history of the regulation of commercial speech, including reference to various SCOTUS cases in which the distinction between commercial and political speech makes up some significant part of the case itself.

In other words, the distinction between political speech, which has very strong protections under law, and commercial speech, the protections for which are weaker, is no novelty. It has existed for quite a while.

I am afraid that what seems simple in theory becomes remarkably complex in practice.

Yes, that's true, but somehow we muddle through.

I don't mean to minimize your point, which is a valid one, I'm just noting that making the kind of distinctions you refer to is something we already do. Every day.

One option would be to simply say that legal persons of any and all types are persons for purposes of Constitutional rights, all speech is equally protected speech, and let the chips fall where they may.

It's all good, as it were.

What you end up with is just an extension of what we have now, where for-profit corporations literally write laws to be rubber-stamped by the Congresspeople they have bought and paid for.

It does have the advantage of being uncomplicated, I will give you that.

And no, you can't allow issue advocacy by corps but not allow lobbying, because it's all protected activity. Lobbying is petitioning for redress of grievances, and if you try to shut that off you will be met by a Constitutional challenge there as well.

McTx: States can do things to corporations the feds can't. Some rights can't be exercised by corporations.

So the argument is, if I understand it correctly, if a state creates a certain means of pooling assets, the feds can't interfere with that mechanism, at least in terms of the mechanism's ability to express itself (though the methods in the mechanism's organizing documents)?

In Brett's Libertopia, where the nasty ole guvmint would NOT be so meddlesome as to grant limited liability to corporations, I wonder whether Brett would ever buy a share of stock.

I would be happy, myself, to grant Brett his apparent wish and let every business be a partnership, every investor be personally liable. But I'm a goddam communist who hates the free market. What's Brett's excuse?

--TP

503(c)'s are supposed to be non-profit. Yet, many of them make money, i.e. show a profit.

That's not, technically, the case. If 501(c)(3)'s make more money than they use for expenses, they aren't allowed to distribute it to shareholders. It goes in the bank for future needs, maybe allowing the organization to rely less on contributions the following year. Sometimes the executives might get a bonus, or there might be some distribution of part of the extra money to staff, but this should absolutely be subject to scrutiny.

I haven't commented as to the subject of Sebastian's post, but I think that public issue advocacy (not monetary support for particular candidates) which is disclosed as such, and directly related to a corporation's purpose should be allowed, not as a Constitutional right, but because it makes sense in the context of a business. But the idea that a state-personal liability protection scheme (which exists for good reasons that I support) should have Constitutional rights is absurd.

Oops

(Italics begone?)

Anyway. Yikes. Go away for a while to get some work done, and look what happens.

I don't have much to add: No, associations != corporations or vice versa; yes it would be wrong to effectively prohibit a particular book from being printed - but that's because the rights of the author - an actual human being - would be infringed; yes, we actually can make up somewhat vague definitions about things like "political speech" and enforce them in the corner cases using the imperfect and mercurial judgement of human beings - I'm not aware of any government which runs as a computer program, are you?

It's the last point I find most interesting, as it, or the principle underlying it, seems to be at the core of the split here.

AFAICT, Brett and McKinney have been persistently ignoring the fact - pointed out ad nauseum - that government already regulates speech. Instead, we get statements like:

No, it can never be as simple as that, unless you trust government to an insane degree. Or expect to be controling it yourself...

Like Russell, I really struggle to understand the viewpoint which could lead to such a statement.

Trusting the government to regulate speech is not, to me, "an insane degree". It is nothing more or less than trusting the government to do its job. In the case of regulating speech, a job it has performed essentially since its inception.

Not always perfectly of course. Never perfect. Because we fallible, stupid, ignorant, corrupt human beings are the ones who are actually in there spinning the wheels of government. Which is why "trust" is probably much too strong a word to use. But there are many jobs which need to be done. Jobs for which a government constituted of humans and their judgement is the only remotely suitable employee at hand, however unreliable an employee it may sometimes be.

Setting ground rules and managing this employee is therefore also frightfully difficult, requiring never ceasing vigilance. And this is itself a task conducted by human beings - and therefore almost invariably performed imperfectly.

But I cannot even begin fathom what the alternative is supposed to be.[1]

There are, to the best of my knowledge, no governments which run on cleverly constructed clockwork mechanisms, or orderly computerized rules -- nor any good reason to believe that such a government would, in practice, be fairer or more humane than the ones we have.

Ultimately, we just have to keep plugging away.

There's also the related tendency to assume that a "can" is necessarily an "is already". The apparent assumption (examples are easy to find above) that the mere power to regulate some forms of speech, corporate or otherwise, is tantamount to the end of free speech altogether, or at least rampant political abuse of the enforcement power. [2] (Again, contra to observed facts on the ground. Namely the actually existing practice of regulating various kinds of harmful or inappropriate speech, or other acts, and the marked tardiness in the subsequent collapse of the rest.)

----
fn1.: There are, I suppose, various utopian "alternatives" such as libertarianism. But even in the most charitable interpretation, these are simply sweeping the problem under the rug by wishfully assuming a much simpler and more orderly model of human motivation and behavior than anyone who's ever actually seen a real-live human being has any right to expect.

fn2.: It's basically ignoring any possible chance of future agency or decision points. It's like saying that your front walk leads to the street, which leads to the crossroads, which leads to the highway, which leads to the seashore, where there's a ship, which goes to Greenland, so opening the front door is tantamount to being in Greenland! Don't open the door!

What you end up with is just an extension of what we have now, where for-profit corporations literally write laws to be rubber-stamped by the Congresspeople they have bought and paid for.

I think you are conflating lobbying with the broad range of political speech in which corporate entities engage. Lobbying can't be stopped, and probably shouldn't, but it is subject to regulation. Forex, several of my clients have strict policies barring any form of gift giving or entertainment. Senior employees have been fired within these companies and outside counsel such as myself have lost all of their business. This is the kind of thing that can be done, without impairing speech, and, at a minimum, because it is far less intrusive, it should be done first. Granted, PAC's and whatnot can still fund supportive campaign advertising. That certainly could influence law making. Disclosure mitigates this to a degree.

I think you minimize the complexity of regulating speech content. That isn't something that we do all the time, other's views notwithstanding. The limits on speech are minimal: fighting words, "shouting fire in a crowded theater", child pornography, defamation of private citizens, and possibly a few other categories, none of which come close to evaluating and suppressing political speech.

if a state creates a certain means of pooling assets, the feds can't interfere with that mechanism, at least in terms of the mechanism's ability to express itself (though the methods in the mechanism's organizing documents)?

Every state, and most foreign countries use the corporate form. It is a universal phenomenon. They are not odd quirks of this or that state. Corps are separate and distinct legal entities whose function requires that they have the same "rule of law" rights as individuals, including constitutional rights. Once you get to that point, you have to have a definable constitutional principle that allows the feds to restrict one constitutional right--speech--but not all of the others, e.g. due process, right to counsel, etc. The natural person distinction is a "distinction", but it doesn't have any constitutional significance. The first amendment speech right is simply granted, not to people, not to corporate entities or any other association. It is just there. As a matter of (sound) constitutional law, every part of that document is applied and construed in the same manner. If a particular right, e.g. due process, is found to extend to corporate entities, then there has to be some valid constitutional reason for not extending all other rights of which a corporation is capable of exercising. Not liking what a particular company has to say, or what many companies have to say, that is disapproving of the content of a company's speech is the polar opposite of a valid constitutional principle. The entire free speech body of law turns on the idea that every idea, every thought, every position is of equal dignity and it is for the listener to decide what to accept and what to reject. It's called the 'marketplace of ideas.'

There are non-corporate publishers all over America, Brett. For realsies.

And, no one is saying that corporations have rights identical to individuals, only that corporations have most of the same constitutional rights as do individuals.

And yet the punishments for crimes are different for corporations than they are for individuals.

Some rights can't be exercised by corporations.

Why not? I mean, seriously, I'm asking you - and not for the first time! - why should ExxonMobil (or the NRA or the NAACP or Google or Apple) NOT have the right to vote? If they have a legitimate interest in particular candidates winning office such that they have a Constitutional right to say so publicly, why shouldn't a designated officer of the corporation be permitted to cast a vote on behalf of the corporation?

I'd actually like an answer to the question, please.

Conservative: You cannot infringe on the absolute freedom of political expression, including that of corporations.

Liberal: We need to regulate this. I know unwarranted corruption when I see it.

Liberal: You cannot infringe on the absolute freedom of artistic expression, including that commonly called pornography.

Conservative: Yes we can. Think of the children. I know pornography when I see it.

Also I might add that Seb's idea of free abortions is a good one. Kudo's to him for a change.

Granted, PAC's and whatnot can still fund supportive campaign advertising. That certainly could influence law making. Disclosure mitigates this to a degree.

I still maintain that a commercial endorsing a particular candidate is an in-kind donation and should be counted as such against any limits on giving to candidates.

AFAICT, Brett and McKinney have been persistently ignoring the fact - pointed out ad nauseum - that government already regulates speech. Instead, we get statements like:

Not me. Repetition doesn't make a statement true. As I stated above, the very few limits on speech are far removed from political speech.

Child pornography isn't political speech. It is suppressed criminally. Which is not to say that there isn't a body of law dealing precisely with the extent to which child pornography is within 1st amendment protections. IIRC, the argument was made that drawings of children having sex, or of being depicted sexually, were protected. Further IIRC, I think the SCt said "no", but I don't think the decision was unanimous. I could be wrong here.

Let me shift the question: give me an example of a legal definition of political speech and a law, rule or court decision that authorizes suppressing it or regulating it that passed constitutional muster.

You first. Why shouldn't ExxonMobil have the right to vote? How is society served by preventing it from doing so?

I'd be ok with giving ExxonMobil one vote. But they'd have to show ID. And the guy actually showing up to do the voting doesn't get to vote on his own behalf.

Actually, I'll spot you: Morse v. Frederick. http://en.wikipedia.org/wiki/Morse_v._Frederick

Now you.

Why not? I mean, seriously, I'm asking you - and not for the first time! - why should ExxonMobil (or the NRA or the NAACP or Google or Apple) NOT have the right to vote?

And I answered your question the first time. Voting is clearly reserved to natural persons who must also be "citizens". Art. I, Sec. 2 refers to "free persons including those bound to Service for a Term of Years, and excluding Indians not taxed, and three fifths of all other persons" for the purpose of determining apportionment of representatives.

Voting first appears in the 15th Amendment where the right to vote cannot be denied to any "Citizens" "on account of race, color or previous condition of servitude."

Voting next appears in the 19th amendment wherein the right to vote cannot be denied on account of sex and then again, in the 24th amendment, voting is referred to as the "right of citizens" and then again in the 26th amendment, the right to vote in federal elections is extended to "citizens" 18 years or older.

A "citizen" is a natural person with rights that "persons", including "natural persons" do not have.

Contextually, sex, age, race, color, and servitude are conditions of natural persons. The constitution further applies, in this context, only to citizens.

A further reason, if one is needed, for not allowing corporations to vote is that anyone, for a modest fee, can create literally as many corporations as he/she can dream up names.

If that doesn't answer the question, I give up.

I didn't ask you for a dissertation on the state of the law. I asked a question beginning with "why."

But that last paragraph gets closest to an actual reason why they *shouldn't* be permitted the vote. Now let's see if the ease with which one can whip up corporations out of thin air might serve as a reason to keep them on a tight leash in other areas.

Back to another subject, does Brett realize that every time he posts here he's creating content on a non-corporate publisher?

Actually, I'll spot you: Morse v. Frederick. http://en.wikipedia.org/wiki/Morse_v._Frederick

Phil, this is lame. Your example, (1) is not political speech case, (2) it does not define political speech and (3) it does not authorize suppression political speech.

Your example does raise one of several examples of real friction between free speech--by individuals, not by corporations--and other "compelling state interests". Public schools and the military are two situations in which some speech can be and is suppressed. Its a rocky area of constitutional law that, quite frankly, I had forgotten about until I saw your example. It is permissible for employers, including the military, and schools during school hours, to restrict political activity. But note: this is not suppression by the feds, other than by attenuation. The military is a federal entity, obviously. Schools are largely state and local entities. The free speech analysis changes dramatically and more liberally at the college level outside of the classroom, where it is virtually unfettered, as it should be.

To make my point about the lameness of your example, here is a quote from your source:

One scholar noted that "by its plain language, Morse's holding is narrow in that it expressly applies only to student speech promoting illegal drug use".[3] She adds, however, that courts could nonetheless apply it to other student speech that, like speech encouraging illegal drug use, similarly undermines schools' educational missions or threatens students' safety. "Further, Morse arguably permits viewpoint discrimination of purely political speech whenever that speech mentions illegal drugs - a result seemingly at odds with the First Amendment."[3]

I didn't ask you for a dissertation on the state of the law. I asked a question beginning with "why."

You asked "why" in the constitutional sense: the constitution only preserves the right to vote for natural persons who are citizens. If that wasn't made clear before, I am making it clear now. There is nothing in the constitution that can even unreasonably be construed as extending the right to vote to a non-natural person who must also be a citizen.

Calling for the legalization of marijuana -- even in a juvenile, ham handed way -- is not political speech???!? On what planet?

Also, I CTRL-f'ed for the word Feds or Federal in here and seemed to have missed it. Can you help me?

"Let me shift the question: give me an example of a legal definition of political speech and a law, rule or court decision that authorizes suppressing it or regulating it that passed Constitutional muster."

As I stated above, the very few limits on speech are far removed from political speech.

That doesn't seem right. Just to use examples from earlier, are you saying that things like billboards and sound trucks are not regulated if the speech happens to be political? Things like judges or other officials making political endorsements in inappropriate contexts are not noxious precisely because they are political?

And note that if you are claiming there is special leeway in some circumstances for political speech, that requires doing exactly what you are claiming is so difficult: namely distinguishing political speech from other kinds.

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