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Opinion

Opinion

Amendment would have radical impact

May 7, 2012

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— Washington — Controversies can be wonderfully clarified when people follow the logic of illogical premises to perverse conclusions. For example, two academics recently wrote in the British Journal of Medical Ethics that “after-birth abortions” — killing newborn babies — are matters of moral indifference because newborns, like fetuses, “do not have the same moral status as actual persons” and “the fact that both are potential persons is morally irrelevant.” So killing them “should be permissible in all the cases where abortion is, including cases where the newborn is not disabled.” This helpfully validates the right-to-life contention that the pro-abortion argument, which already defends third-trimester abortions, contains no standard for why the killing should be stopped by arbitrarily assigning moral significance to the moment of birth.

Now comes Rep. Jim McGovern, D-Mass., with a comparable contribution to another debate, the one concerning government regulation of political speech. Joined by Minority Leader Nancy Pelosi, 26 other Democrats and one Republican, he proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government’s power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say most campaign-finance “reforms” are incompatible with the First Amendment.

His “People’s Rights Amendment” declares that the Constitution protects only the rights of “natural persons,” not such persons organized in corporations, and that Congress can impose on corporations whatever restrictions Congress deems “reasonable.” His amendment says it shall not be construed “to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people, which rights are inalienable.” But the amendment is explicitly designed to deny such rights to natural persons who, exercising their First Amendment right to freedom of association, come together in corporate entities to speak in concert.

McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America, or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.  

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern’s amendment, could regulate religious practices at most houses of worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern’s scythe would mow down the Fourth and Fifth Amendments, as well as the First.

The proposed amendment is intended to reverse the Supreme Court’s Citizens United decision, which affirmed the right of persons to associate in corporate entities for the purpose of unrestricted collective speech independent of candidates’ campaigns. The court’s decision was foreshadowed when, in oral argument, the government’s lawyer insisted the government could ban a 500-page book that contained one sentence that said “vote for” a particular candidate. McGovern’s amendment would confer upon Congress the power to ban publishing corporations from producing books containing political advocacy, when Congress considers a ban reasonable — never mind the amendment’s rhetoric about the “inalienable” rights people enjoy until they band together to act in corporate entities.  

A decade ago, then-Rep. Dick Gephardt said of George Soros’ spending in support of liberal causes: “It is not consistent with campaign reform, but it is consistent with what the Constitution says about freedom of speech.”  

 As the editors of National Review note, liberals control unions and most of academia and the media. Yet such is their evident lack of confidence in their powers of persuasion they are desperate to control the speech of others.

By proposing his amendment, McGovern helpfully illuminates the lengths to which some liberals want to go. So when next you hear histrionic warnings about tea party or other conservative “extremism,” try to think of anything on the right comparable to McGovern’s proposed vandalism of the Bill of Rights.

— George Will is a columnist for Washington Post Writers Group.    

Comments

jhawkinsf 2 years, 7 months ago

We are in the process of getting the government we deserve. If I were religious, I'd say, "God help us".

SnakeFist 2 years, 7 months ago

Funny how conservatives want to count corporations as persons with constitutional rights, but have no problem busting unions, or, as Will would say it, "persons organized as unions".

This issue (like many others) is a loser for conservatives - no one would be outraged by Exxon, Haliburton, or Walmart not being able to spend millons influencing elections and buying politicians.

gudpoynt 2 years, 7 months ago

with the possible exception of those who have become wealthy off the profits of Exxon, Haliburton, and Walmart :)

SnakeFist 2 years, 7 months ago

Its also interesting how Will combined the issue of infants not being persons and therefore not having a right to life, and corporations being persons. What's the message here - that corporations have a right to life?

jafs 2 years, 7 months ago

There's a clear and important distinction between groups that are formed to act as collective voices for their members, which garner 1st amendment rights because of that, and groups that are not formed in that manner, and cannot be said to be collective voices for the members.

The 1st group is deserving of 1st amendment rights, in my view, while the 2nd is not.

jafs 2 years, 7 months ago

None - I just speak for myself.

You gotta problem with that?

jafs 2 years, 7 months ago

You can join any sort of group you like, and combine your voice with theirs - the NRA, ACLU, etc.

If you choose not to do so, that's your choice as well.

jhawkinsf 2 years, 7 months ago

Why do you make a distinction between business interests advocating on behalf of their interests and unions who advocate on behalf of their best interests?

jafs 2 years, 7 months ago

Because a union is composed of people who join together with the aim of combining their voices and exercising their individual right of freedom of speech in concert with one another.

If it's a voluntary one.

A corporation isn't formed around that idea - it's formed around the idea of making money. So there are undoubtedly a number of differing opinions among the shareholders, etc. about politics.

If you don't believe in what the union advocates, you simply choose to not belong to it.

However, with a corporation, it's more complicated - you may like the returns on investment, but disagree with the political ads. And, because your reason for buying stock isn't political, why should you have to sell your stock because the corporation puts out an ad you disagree with?

I'll give you an example - let's say I'm the president of the Lawrence bridge club - does that give me the right to take dues and buy a political ad about abortion (either side), claiming that it is the view of the LBC?

I say it doesn't, unless that ad truly represents the collective opinion of the members.

So, if a large multination corporation can demonstrate that their political ad is in fact a collective expression of all of their shareholders, then I might change my view. But, I think that's extraordinarily unlikely to happen.

Other groups like unions (voluntary) would be the NRA, ACLU, Americans for Prosperity, etc.

Unions are a little more complex, in that they also exist to negotiate with management - as such, somebody might want that ability, but disagree with the political advocacy - because of that, many unions will rebate part of their dues for those that want the workplace advocacy but not the political part, which seems eminently reasonable to me.

ebyrdstarr 2 years, 7 months ago

But shouldn't it be up to the other members of the LBC to say, "Hey, we don't like that ad," rather than the federal government to just prohibit the ad in the first place?

As to the union vs. corporate employer argument, if a union is in your mind a collective voice who can come together to back political causes, why on earth wouldn't it's negotiating counterpart, the corporation that employs the union members, also have a right to influence the political process? If it's clear that a labor union could support policies and candidates that would benefit unions, why wouldn't the same be true of the corporation?

I just don't think your voluntary distinction holds any water. Participation in a corporation, whether as a stockholder or employee, is also voluntary. If the purpose of the corporation is to turn a profit, well, we have ample evidence to show that government policies have lots and lots to do with profit, so it stands to reason that a corporate entity whose sole function is to make more money would most definitely want to be involved in political discourse, encouraging policies that would enable them to maximize profit.

jafs 2 years, 7 months ago

No - because it's already been taken out, and my money has been used in a way I disagree with, and my voice has been portrayed incorrectly.

I think the president of the LBC has the obligation to demonstrate they're speaking for the group first in order to do so.

Well, if the union allows those who don't agree with the political advocacy to withhold part of the dues, then the corporation should do the same somehow.

They shouldn't be able to use shareholder money to speak for shareholders that don't agree with their speech.

Voluntary matters because a group that isn't voluntary, like a union in a closed shop state, isn't functioning as a collective voice (unless they allow members to withhold dues for political advocacy).

There's a lot of disagreement about what's best for businesses - so, while all shareholders might want government policies that increase their return on investment, they may disagree in a variety of ways about what government policies should be enacted to ensure that.

Also, if corporations back particular candidates, then those candidates might have other positions that shareholders strongly disagree with, other than their economic policies.

ebyrdstarr 2 years, 7 months ago

There will always be disagreements among organizations. Not envy PETA or NRA member agrees with every statement issued by those organizations. But that doesn't mean the organizations don't have the right to issue those statements. They don't have to achieve 100% agreement before expressing organizational opinions.

Likewise, a corporation's shareholders may hotly debate some company policy, take a vote that came down to 52%-48%. The corporation can then take the action. It doesn't have to be unanimous. Whether that action is buying a company or taking out a political ad. It is then up to each organizational member or corporate shareholder to decide for him/herself whether this action is something that individual can live with or whether the disagreement is so fundamental such that it is time to break ties with the organization or corporation.

No collective voice entity will ever have unanimous agreement on all points. That shouldn't mean they are denied the right to participate in the political process.

As for your bridge club example, that sounds like a problem between you and the president of the club, but not a justification for infringing on the right to speech in the first place. What's to stop you from speaking out and saying, "I did not and do not agree with that and I have severed ties with that organization?"

jafs 2 years, 7 months ago

Well, if the "organizational opinions" aren't in fact the opinions of the members, whose opinions are they?

I suppose one could argue they represent the opinion of the majority, if that's the case.

Corporations don't take votes about political ads, that's part of the problem. The argument that if a majority agree, then it's ok is a new one for me - I'll have to think about it.

But, in order to determine that, they'd have to vote on the ads, which I don't think they do right now.

The basic point is that an organization that's acting as a collective voice should have to show that's what they're doing in order to claim it - if we say that a 51% majority qualifies as collective enough, that's a judgment call.

It's too late to stop them from speaking "for me" incorrectly and with my money. And, again, my general argument is that organizations gain the "right" of speech simply as an extension of the individual rights of the members. On their own, the president of the LBC has no right to "speak for me" unless they're actually doing that. They could certainly spend their own money on an ad, one which doesn't claim to be the view of the group.

ebyrdstarr 2 years, 7 months ago

The government can't go around requiring permission slips from each organization member or each shareholder before allowing the collective entity to express an opinion. Organizations have bylaws for just this reason, so they have a principled mechanism in place for making decisions. Most rank and file NRA members probably rarely participate, but that's their choice.

The organizational opinion must, of course, represent members. But it will almost never represent all of the members. How on earth could it? The organization shows it's speaking for the collective by organizing, passing bylaws, holding meetings as required by those bylaws, and registering an agent or designating a spokesperson. How else are they supposed to do it?

And finally, if the rights of a group stem from the individuals in that group, and the LBC president wants to speak, how can you deny her? She has the right of free speech. And if you've allowed her to have the designation of president, I would suggest the problem is that you all made a poor choice in leadership. The answer, though, is for your group to address its problems internally. It is not to prohibit all organizations from speaking.

jafs 2 years, 7 months ago

The distinction is between organizations like the NRA, and corporations which are formed around different goals.

There's a common sense self-selectivity in groups like the NRA - if you're anti-gun, then you'll almost certainly not join it. So although members may disagree on small points, I think it's pretty safe to conclude that people that join the NRA are strongly in favor of their mission, protecting 2nd amendment rights.

And, yes, those kinds of groups have those sorts of mechanisms in place.

I didn't deny her a right to speak - she can speak all she likes as an individual. I said that she can't speak as the group, unless she in fact represents the group, and that she shouldn't use bridge club dues in that way unless the members of the club have agreed to do that.

When we elected her, we didn't elect her to take out political ads against abortion - we elected her to run the bridge club, which has nothing to do with abortion. Your argument seems analogous to saying that she has every right to do that, regardless of what the members believe.

And, again, I've never suggested all organizations be prohibited from speaking - simply that organizations gain the right of speech as a collective expression of the individual rights of speech of the members, and if they speak for the group, then they actually should be doing that.

So the head of the NRA shouldn't use dues to take ads out against gun rights, NOW shouldn't take out ads for women to be submissive, etc.

It's obvious with these groups, because they're formed around a mission that their members support.

Less obvious with other groups like the bridge club, or a large multinational corporation, but no less valid, in my view.

ebyrdstarr 2 years, 7 months ago

I agree with you that a person elected to head a group should not speak out in a way contrary to that group's message. But you would apply a prophylactic to prohibit groups from speaking at all and that runs afoul of the First Amendment.

In the instance of both the NRA head and the LBC president, the other members of those organizations have recourses if their heads go off their rockers and say things they aren't authorized to say. There can be civil suits, penalties, etc. The recourse, though, should not be that all groups are prohibited from speaking unless and until they satisfy someone (would some governmental agency be appointed to do this?) that a sufficient number of group members agree with this particular message.

Whether it be a cause organization, like the NRA, a local club, or a multinational corporation, the same rules should apply. It isn't up to you to decide which collectives have a purpose you deem worthy of political speech. All organizations have ways of coming together, seeking input from their various members, and addressing it internally if the message gets off track.

The government should not be in the business of regulating all of these details of organizational structure. It isn't up to the government to determine when an organization's public statement is acceptable to the collective and when it is not.

jafs 2 years, 7 months ago

You continue to misrepresent my views - why?

Isn't it a better conversation if we actually understand each other correctly first, and then discuss/debate the issue?

I have said that groups get a "right" to speak only by virtue of being a collective expression of their members' views. So any groups that in fact operate that way would have that right. But they'd have to demonstrate it in some manner.

The devil's in the details, of course, and they'd have to be worked out.

Why should the same rules apply to vastly different types of organizations?

Please try to understand what I'm saying first, and not misrepresent it - then we'll have a better conversation, and it might be more useful to both of us.

ebyrdstarr 2 years, 7 months ago

I don't believe I am misrepresenting your views. I get what you're saying. I'm pointing out that in my view what you want to happen already is happening. Corporations have bylaws, they have meetings, they vote on things among shareholders, etc. They have to register an agent with the state, they designate a spokesperson. I am trying to point out that all of that satisfies your concerns. Any internal disputes about whether the message is what the majority of the group wants it to be needs to be handled internally.

I'm also trying to point out that any other kind of governmental oversight on this kind of thing would be intrusive and run afoul of the First Amendment. I don't think the government should be in the business of policing which organizations have sufficient organizational structure to guarantee them the right to speak and which don't.

jafs 2 years, 7 months ago

And, I believe that corporations that aren't structured along the lines of advocacy organizations should have to demonstrate that they are, in fact, operating that way in order to use shareholder money to buy ads, and speak for the corporation.

The fact that shareholders may vote on other issues doesn't mean that the ads are representative of their views. When I used to get stuff in the mail from corporations in which I held stock, I never had the opportunity to vote on whether or not the corporation was going to take out a political ad, or what the content would be.

We've had this debate before, and come to the same place - you believe that an organization has a right to speak based on the 1st amendment, and I believe that they only have that by virtue of being a collective voice for their members.

Your view has been upheld at the SC level, with CU, and mine is in the minority (although 4 justices dissented).

So, in a way, you've already "won" the debate. But, I continue to hold my view anyway - I'm stubborn that way.

Liberty275 2 years, 7 months ago

"I say it doesn't, unless that ad truly represents the collective opinion of the members."

So I can join the Sierra Club because I want to see all the pretty mountains stay pretty, but I decide I want to see a highway built through a swamp. Should that prevent the organization from running an ad against the swamp highway?

You had to see that coming.

jafs 2 years, 7 months ago

Actually, I didn't - that's an interesting question.

But, the point remains - you can easily stop being a member if you don't agree with their ads - that's what makes it a collectively expressive group. You can also argue with other folks in the group about the swamp highway, and try to convince them of your view.

If your employer took dues out of your paycheck and used them for ads against the highway, that would be a different situation, right?

ebyrdstarr 2 years, 7 months ago

I think the employee might even have less cause for complaint. By accepting employment, didn't the employee agree to live with certain employer rules? But the principle remains that an employee can leave. It may not be something easily accomished in practice, but the choice is there.

jafs 2 years, 7 months ago

Maybe.

Does the employer have the right to do that, in your view?

I'm not sure they do - there are limits to what employers are allowed to do.

And, the fact that it's harder to leave a job, and get another one, is part of an argument against it.

ebyrdstarr 2 years, 7 months ago

The rights between an employer and employee are, in very large part, established through the employment agreement. That was my point, that an employee has already agreed to certain things when accepting employment.

The practical difficulties of leaving a job does not alter the fact that it is a voluntary situation from a legal standpoint.

Liberty275 2 years, 7 months ago

"if you don't agree with their ads"

Wait, their ads? Am I not a (hypothetical) member of the Sierra Club? Is it not OUR ad? Sure I can argue with them all day, but as long as I'm in the group, do they have to censor their ads to the point I agree? Or do I have to leave, or worse yet, be thrown out because I'm not walking in lockstep?

"If your employer took dues out of your paycheck and used them for ads against the highway, that would be a different situation, right?"

It would be really different because I will never pay anyone for the opportunity of working. I work, I get paid. What my boss and his corporation does with their part of the money is none of my business. I think they should be able to spend it in whatever way they want as long as it's legal.

I'm a little confused why you are taking the position you are. Do you really want "collective voices" given more protection that other voices? That is so not you.

jafs 2 years, 7 months ago

Well, that's interesting.

I'm not sure how to deal with that problem, other than to say it seems very unlikely to happen, in reality. People who join organizations like that do so because they agree with their missions.

Of course not - I'm saying that organizations only get the right to speak (in my view) by being a "collective voice" or a collective expression of the individuals involved - I'm arguing against the notion that a corporation has a right to speak separate from that idea.

What if you're a shareholder? Do you have no right to influence what's done with corporate profits? Aren't they "your" profits?

A group like the Sierra Club exists as an advocacy group - people who join it believe in the mission. It makes sense to me to call it a collective expression of the members.

Wal-Mart isn't such a group - it's not organized that way, and doesn't function that way. So I don't believe it has that "right" to speak.

All of the people who work there have that right, as do all of the shareholders, management, etc. I just don't believe the corporation has a separate right to speak, if it's not acting as a collective voice.

jafs 2 years, 7 months ago

The question of what sort of consensus is required is a good one, I just don't have a good answer yet.

Ideally, the entire group would agree with the positions expressed.

Practically, that may not be possible on all issues, as starr pointed out, so we'd have to find another way. Perhaps a majority, perhaps a large majority, I don't know.

But, generally speaking, people don't join the NRA if they're anti-gun, or NOW if they believe women should be submissive, etc.

There's a built-in self selectivity there.

Liberty275 2 years, 7 months ago

Jafs, just read the first lines of the amendment.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,"

Does it say "collective" or "union" or "all but corporate" somewhere and I just missed it? The thing making the speech isn't even regarded, in the law it doesn't exist. The law exist as a prohibition against congress, not merely protection for this group or that or even everyone. The only pivot point in the law is the content of the speech, which itself is left untouched except in it's most heinous forms and that rule has to be made to fit corporations, boys, girls, unions, rich guys, rap singers and waitresses all the the same.

Basically, what a corporation can't say, you can't say.

jafs 2 years, 7 months ago

That's one of the arguments that starr has used in the past.

I contend that "speech" is something that a corporation or organization doesn't have the capacity for, except if it operates as a "collective voice" for the people involved.

A corporation isn't an actual person, so it can't speak, anymore than a tree can.

Liberty275 2 years, 7 months ago

A corporation can speak, and is in fact compelled by the government to speak. Here is an example:

http://investor.apple.com/secfiling.cfm?filingID=1193125-11-282113&CIK=320193

jafs 2 years, 7 months ago

I disagree.

Filing various tax forms isn't "speech" - and, it's not "the corporation" that does that, it's individuals who are employed by the corporation that file the forms. A corporation is a strange entity, legally separate in some sense from the actual people involved, incorporeal, and a creation of our legal system.

A corporation doesn't have the capacity to speak - it has no mouth, no brain, etc. It can't write, or type either.

Only actual people can speak, and they can join together to speak jointly.

What about dogs? If the 1st amendment doesn't mention people, do dogs have those rights? If my town has a noise ordinance, and fines me because my dog barks too much, can I claim 1st amendment protection and overturn the ordinance?

After all, barking is how dogs "speak", isn't it?

jhawkinsf 2 years, 7 months ago

I don't think you're considering the fact that when a corporation incorporates, it establishes how they will be governed. Generally, shareholders have meetings, where officers are elected to represent the corporations, a CEO is elected, etc. I'm certain there is a wide variety of methods that corporations choose to operate, however, how they do that are transparent, easily known to shareholders and prospective shareholders alike. By taking the affirmative action of becoming a shareholder, there is an implied agreement that the CEO, Board of Directors, etc. have permission to speak for the shareholders. It's no different than Obama speaking for America. It's what happens when we elect him and we choose to be Americans.

jafs 2 years, 7 months ago

I don't agree with that at all.

I've owned stocks in the past, and I've never implicitly agreed that the management of those companies has the right to "speak for" me.

They have the right to manage the company, and I'd like them to manage it well.

That's it.

jhawkinsf 2 years, 7 months ago

If the management of the company includes advocacy for their industry, then them speaking out for those positions is indeed part of their job. And if that advocacy includes participating in the political process so as to have elected officials sympathetic to that company's position, then that too is a legitimate function of the company's leaders. You should know that when you purchase stock. Interestingly, Jafs, you're looking at the Constitution very narrowly here. You should remember, the Constitution is generally looked at very broadly. Abortion is not a right mentioned, it was found in a right to privacy which in return was found elsewhere in the Constitution. A woman's right to dance naked around a pole was found to be freedom of speech. Surely a CEO participating in the political process should be protected at least as much as a woman's right to dance naked.

jafs 2 years, 7 months ago

Obama doesn't speak for me either, by the way.

I can speak for myself, and so can you, as well as all of the employees, shareholders, etc. involved with a corporation.

They can support whatever political causes they like, alone or in groups that share their views.

There's just no need to create a separate right for the corporation, which is a bizarre entity created by our legal system, not one that should be afforded 1st amendment rights.

jhawkinsf 2 years, 7 months ago

Obama does indeed speak for you, whether you like it or not. He sets policies, negotiates treaties, sets foreign policy, etc. And if you don't like what any president says or does, then you, along with other voters can vote him out. From the beginning of our country, there has been a debate as to whether our elected official should mimic the will of the people or should they act according to what they deem the best decisions and then we can later decide whether or not we want that elected official to stay in office. I can tell you now, it isn't written down in any binding document. There is no right or wrong answer. So to what extent any individual elected official chooses to speak for us or for himself is up to them. As bizarre legal entity that you might think corporations are, the fact is that they have been created, they are taxed, they are regulated and they enjoy First Amendment protections. Your objection is very similar to those that oppose abortion. By that I mean that they are based on your own values and your own personal feelings. What it isn't based on in sound legal principles.

jafs 2 years, 7 months ago

He does not speak for me.

I speak for myself.

They have been created, and it has been decided to grant them a variety of legal rights over the years. I simply disagree with the decisions to grant them such broad rights, and certainly with the idea that they deserve 1st amendment rights.

That's my right as an American citizen, isn't it? To disagree with decisions that have been made in our legal system.

When abortion opponents say that they disagree with Roe v. Wade, and feel that there is no "right to privacy" in the constitution, or that it shouldn't apply to abortion, they're free to do that as well.

Many of these issues are issues of interpretation and point of view, and there aren't definitive answers.

The CU decision, for example, was decided by a 5-4 vote at the SC level. That's enough for it to stand, but in my view, that's virtually a tie, which means it's not really definitive to me.

If 4 learned, well educated justices disagree with the decision, that means that there are differences of opinion about how to interpret and apply the constitution, even among intelligent and well educated people.

And, you know what, even if it's a more definitive decision, as in the recent case about drugs, which only had 1 dissenting view, I maintain my right to disagree with it.

If the Supreme Court ruled unanimously that gay people didn't have the right to marry, would you just agree with it?

jhawkinsf 2 years, 7 months ago

I think, Jafs, if you took a long hard look in the mirror, what you will see is someone who disagrees with this because you don't like what they have to say. You don't have to agree with Nazis or the KKK marching down the street to know that they have that right. You've mentioned more than once that since their purpose for coming together is to make money, 1st. Amendment protections shouldn't be extended. As in, making money is somehow distasteful, not worthy of being protected (as opposed to that naked girl dancing around a pole. Now that's worthy of protection).
The fact is that if a union says the workplace needs to be safer, at the expense of the company, that's legitimate free speech. And if the company says the workplace is safe enough and the company needs to pocket the money, that's also legitimate free speech. And both sides contributing to political candidates and/or parties to advocate for their position is legitimate free speech.
Working hard and making money is not a bad thing, Jafs. And if you choose to, and if you're lucky enough, there's nothing immoral about making a lot of money. And even if you should disagree with that, should you indeed think that it's immoral, it's certainly not illegal.

Liberty275 2 years, 7 months ago

Words on paper = speech. In this case, speech mandated by the state, and therefore mandated to be accepted by the state.

"If my town has a noise ordinance, and fines me because my dog barks too much, can I claim 1st amendment protection and overturn the ordinance?"

I suppose you can. The result would be the same as if you claimed the amendment allowed you to sing loud, even if you broke the noise ordinance. Either way, I don't think you can beat a noise ordinance with the first amendment. Time and place. Sound volume affects place. Just a guess.

The underlying question is more interesting. Does a dog have first amendment rights? You have given us the criteria when you told us why a corporation doesn't have that right:

"A corporation doesn't have the capacity to speak - it has no mouth, no brain, etc."

A dog has a brain, a mouth and the capacity for expressing itself through dog speech. Step on a dogs tail and what does that dog tell you? You know the sound and you know you know it means OUCH! Speech.

Given your criteria, a dog has fist amendment rights. Do you think a dog has first amendment rights? I don't think so.

So we use your criteria, your example and we reach a consensus that the dog has no constitutional right to free speech (unless you want to argue the point). That leaves one conclusion; your criteria are defective.

I don't think you can come up with suitable criteria for denying the right to speech other than the very few we already recognize.

You have other arguments, I suggest you use them.

Liberty275 2 years, 7 months ago

Make me prove a dog doesn't have first amendment protections. If I can't, your criteria may be valid.

jafs 2 years, 7 months ago

It's not my argument that's defective.

I believe that, even though they didn't specify people in the 1st amendment, it's obvious they meant it for them, and not for dogs, trees, corporations, etc.

Only by focusing solely on the words, and ignoring the whole context of the bill of rights, could one conclude otherwise.

ebyrdstarr 2 years, 7 months ago

The context of the bill of rights, generally speaking, is that it lists limitations on the government. Congress shall not...

You are ignoring that context. And, btw, in legal analysis, we don't go beyond the words if they are plain. The language here is pretty plain. Congress shall pass no law abridging freedom of speech.

jafs 2 years, 7 months ago

The context is that, in order to secure a variety of rights for American citizens, the Constitution was written.

It wasn't written for trees, animals, or corporations.

In another context, we've discussed 4th amendment protections - they didn't specify cars - do you agree that they meant for those protections to not apply there?

Seemed to me that your view was more like mine - that the fact they didn't specify cars was because they didn't exist, but they clearly would have specified cars if they had, and intended to protect us from the power of the state.

jafs 2 years, 7 months ago

The context is that, in order to secure a variety of rights for American citizens, the Constitution was written.

It wasn't written for trees, animals, or corporations.

In another context, we've discussed 4th amendment protections - they didn't specify cars - do you agree that they meant for those protections to not apply there?

Seemed to me that your view was more like mine - that the fact they didn't specify cars was because they didn't exist, but they clearly would have specified cars if they had, and intended to protect us from the power of the state.

ebyrdstarr 2 years, 7 months ago

How does any of the above comment go against my contention that the BoR is fundamentally a limit on government? Yes, cars are covered by the 4th amendment because government can't conduct unreasonable searches.

I think you're wrong to assume that business entities weren't intended to be covered. Freedom of press necessarily involved not just individual reporters but the papers they worked for. Freedom of religion clearly covers not just individual worshiped but their churches.

jafs 2 years, 7 months ago

It limits government in order to secure rights for American citizens, not trees, dogs, or corporations. Do dogs have 1st amendment rights? The literal amendment doesn't mention them at all - can we conclude that any laws that abridge the freedom of speech of dogs is unconstitutional?

That's not the current view, given a variety of court decisions, and the amendment itself doesn't specify cars. Reasonable of course is a huge judgment call - I happen to agree with you there, but also because I'm trying to understand what the founders would have thought about cars if they'd existed then.

In the same way, I think that they wouldn't have intended for modern corporations to have the right of speech, in the form of political advertising, unless the corporation were acting as an actual collective voice.

I think you're right about press and religious freedoms, and wouldn't argue that point.

ebyrdstarr 2 years, 7 months ago

Cars are covered by the 4th Amendment. Police cannot just go around searching in cars. It is easier for police to get around the warrant requirement with a car than it is with a house, yes, but it is still a 4th Amendment issue. And when a court disagrees with the copy's actions, it's a 4th Amendment violation.

I don't see how you can in a principled way say that the freedoms of religion and press apply to organizations and entities but that speech doesn't. Why should the New York Times be free to publish whatever material it wants without fear of government censorship but GE has to jump through hoops to publish something?

jafs 2 years, 7 months ago

Because the rights of freedom of the press, and religion, often necessarily involve joining together, creating newspapers, churches, etc. As such, you can't really protect the press, or religion, without allowing the groups.

Although some people are solitary in their exercise of religious beliefs, and these days we have people publishing newsletters on their computers alone.

In a similar vein, when people choose to join together with like-minded individuals in advocacy groups, their freedom of speech is being exercised, and that's analogous for me, and perfectly fine. I would never disallow advocacy groups.

It's just not at all true that we need to create a right to corporate speech in order to protect our rights to speak individually, and in like-minded groups.

All of the individuals involved in corporations have those rights already - the shareholders, employees at all levels, etc. They can speak freely, organize with other people in advocacy groups, etc.

And, this issue wasn't about publishing anything at all - it was about political advertising - I think issuing press releases about their business, advertising it, etc. are all perfectly fine, employees doing the job for which they were hired.

What I think is not fine is for a corporation, like GE, to be able to use corporate profits (which essentially belong to the shareholders) to take out ads for political candidates.

Unless, of course, the shareholders agree that's ok with them (or a substantial majority of them, etc.).

Let's go back to one of my hypotheticals, which you often seem to ignore.

The bridge club is the clearest example, so let's use that one. The LBC elects a president - her job is to rent space, provide supplies, explain the rules of the club, intervene in disputes, etc. Members pay dues for these purposes.

Instead of doing that, she takes the money and buys an ad that states "The LBC strongly supports Mitt Romney for President".

When polled, members don't generally agree with that statement - a few support Romney, but not strongly, some strongly support Obama, and others are rather apathetic about politics in general, and just don't care.

They sue her for fraud and theft by conversion - they say that her statement didn't accurately reflect the beliefs of the group, and that the money was given for other purposes, and she shouldn't have used it in that way.

She counters that she's the president of the club, it's "spokesperson", that groups like the LBC have a 1st amendment right to speech, and that political ads are an example of that.

I say of course that she should lose - what do you say?

Once we decide that corporations have the right to political advocacy, separate from the shareholders, given recent court decisions, doesn't that limit/eliminate the recourse for shareholders?

Didn't the Phelps decision essentially say that one cannot recover in civil suits when protected speech is involved?

ebyrdstarr 2 years, 7 months ago

You just never really read any of what I write, do I? You are right, it is beyond pointless to argue with you because you are so convinced of your own cleverness, you never notice when you are totally beaten, wrong, missing the clear logic of the point being made against you. I'm not trying to be insulting here, btw, but you are exasperating because honestly you just argue to argue without ever trying to respond to people honestly. If you'd ever read any of my comments, you would know my answers to the questions you've posed because I've already addressed those situations.

You're like a dog with a bone. Only we've taken the bone out of your mouth and showed you it's not a bone at all. But even then you keep shaking your head like you've got the greatest bone in the world.

I'm sure you think I'm insulting you he, but honestly, it's insulting the way you keep just attacking and picking and asking your silly rhetorical questions when you so clearly don't pay any attention to what my actual arguments are. All I can say is thank goodness you will never be a judge because your muddled attempts at logic can't have any affect on the rest of us.

jafs 2 years, 7 months ago

I've read all of your posts, and responded as best I can.

It seems to me that you often fail to do the same.

"You're like a dog with a bone" "your muddled attempts at logic" "thank goodness you will never be a judge"

It's a good thing you're not insulting me - I'd hate to see what that looked like.

I do notice that you completely failed to respond to any of what I wrote in my comment above, while I tried my best to respond to yours.

Please stop now - if you ever want to discuss things with me again. We're getting close to my limit of what's acceptable to me, and if it goes any farther, I won't talk with you anymore.

Also, please note that I have never written anything like what you did about me towards you - I haven't called you names, or denigrated your intelligence, or things like that. Believe me, there have been times, and now is one of them, when I certainly feel an impulse to do so, but I restrain myself.

It seems to me that whatever is going on here is more psychological than logical - you're just frustrated because I won't agree with you - I won't "roll over" and say you've "won". There are other words for that as well, but I won't use them.

I accept that you disagree with me, and wouldn't try to force you to agree, and if you didn't, start denigrating you personally.

Why is that so hard for you to do?

ebyrdstarr 2 years, 7 months ago

If you were to prevail, you would do tremendous damage to my freedom of speech rights, which I take pretty personally. That's why I care. Not to mention that I need to believe that reason and rational thought will always prevail amongst intelligent people. I believe that you are intelligent until it comes to the BoR when you seem to get blinders that won't let you see the real issues. So it makes me despair that you refuse to see reason here.

At least this time I got you to admit that not every right in the BoR is a purely individual right, so I am making progress.

Liberty275 2 years, 7 months ago

Come on. All we have are the words. The words are the law, not what some old long-hair was thinking while he wrote them.

The entity is is absent in the clause, but somehow other clauses specific mentions them:

"or the right of the people peaceably to assemble" "the right of the people to keep and bear Arms" "quartered in any house, without the consent of the Owner" "The right of the people to be secure in their persons" "No person shall be held to answer for a capital, or otherwise infamous crime" "nor shall any person be subject for the same offence to be twice put in jeopardy of life" "In all criminal prosecutions, the accused shall enjoy" "All persons born or naturalized in the United States"

Now watch, the words become even more specific:

"privileges or immunities of citizens of the United States"

We have gone from the law being a blanket denial of congress's ability to make laws regarding speech or religions, to protecting HUMAN rights, to protecting only Citizens rights. It's obvious they knew the word "person" and "persons", so why is it not mentioned?

The words aren't your only enemy. You also have to address why some were left out at various places.

jafs 2 years, 7 months ago

Without any understanding of the intent, it's often hard to understand, interpret, and apply the words.

And, without looking at context, the same is true.

For example, the 4th amendment protects against "unreasonable" searches and seizures. That's not a word with a clear and definite meaning, it requires interpretation and application.

Some people will give more latitude to the police, and others less - how do we decide which is the best way to proceed?

I'd say we have to look at the context, and that the founders intended to provide citizens with broad protections against government power. In that respect, when there are judgment calls to be made, I would lean towards more limitation of police power.

Without looking there, what's the argument against the guy who thinks it's perfectly reasonable for the cops to stop and search you whenever they want?

Or to stop and search your car, if you have a broken taillight?

Or to break down your door because they smell pot, and they hear the toilet flush?

I wish that all of the language were more definite, and that we didn't have to make these judgment calls, which are often hard to do.

Again, since they didn't specify persons, does that give dogs freedom of speech, or religion? That seems obviously silly - we intuitively know that's not what they meant, right?

In the same way, it seems clear to me that they didn't intend for the 1st amendment to translate into a right for corporations to spend unlimited amounts of shareholder money on political advertising without shareholder permission/consent.

For one thing, I'm not at all sure corporations even existed at the time they wrote the amendment.

jafs 2 years, 7 months ago

At least, not in the form they exist today, and certainly not with the same "rights", which have changed and broadened over the years.

jafs 2 years, 7 months ago

That's another facet of the argument against unlimited "corporate speech" - 1st amendment protections aren't absolute.

ebyrdstarr 2 years, 7 months ago

That is correct. Congress could try to pass another law that would pass muster, they just haven't tried. The law at issue in Citizens United was an absolute ban on a particular type of spending for the 60 days before an election. The Supremes don't tend to appreciate total bans on speech. That's not narrowly tailored, as laws limiting speech need to be.

ebyrdstarr 2 years, 7 months ago

Corporations issue statements and press releases. They advertise their products or services on tv, radio, and in print. They publish quarterly reports for shareholders. They print colorful, glossy brochures for recruiting. Is any of that speech? Because to me, it would be a pretty radical idea to say no.

jafs 2 years, 7 months ago

Corporations don't do that - people that work for them do that.

A corporation, as a legal fiction, and an incorporeal entity, can't really "do" anything.

Only people can do things, speak, etc.

I'd like to meet a corporation - can you introduce me to it? Separately, of course, from any employees, since that's one of the main definitions of a corporation.

ebyrdstarr 2 years, 7 months ago

Ok, I'm sorry, but you really are just being stubborn at this point. Would it really kill you to admit that those things are speech and are made by the collective voice of the corporation?

You can admit, can't you, that those ads and press releases etc., are speech, regardless of who utters them? And that Congress can't just decide to ban them all?

jafs 2 years, 7 months ago

I'm a stubborn guy - just ask my wife:-)

An organization only has a "collective voice" if it's actually speaking for the members - that's been my position all along.

So, a corporation could possess that, if it showed that the"speech" represented the collective views of the shareholders.

But, without that, there isn't a "collective voice" being expressed. Your example is better understood as part of the job that management was hired to do, which is fine - we hire management to manage the company, and part of that job includes the activities you mentioned. But I never hired any company management to spend millions of dollars on a Romney (or Obama, or any other politician) ad.

Look, let's make this simpler - let's say that you and I have a business - the "jafs/starr consulting agency" or some such. We're co-owners, not incorporated. If I were to take out an ad using our business name without asking you, and it was one that you disagreed with, for whatever reason, was I expressing the "collective voice" of our business?

I'd say it's abundantly clear that I wasn't at all - in order to do that, we'd have to discuss it and agree as co-owners.

I never suggested Congress should ban all of those things, have I?

ebyrdstarr 2 years, 7 months ago

I have addressed all of this. I don't feel that you have addressed my very practical responses. What, exactly, are you looking for here? Some governmental clearinghouse whose job it is to determine which corporate speech satisfies your definition of collective speech and which does not? Only after it is determined to be sufficiently collective would the statement or advertisement be published?

If you and I have a joint venture and you make a public statement I disagree with, we have an internal problem. But it's not something government should be dealing with.

My way of dealing with all of this is simple: Government does not abridge or regulate speech.

Your view would seem to require an awful lot of oversight by government. You stubbornly refuse to explain how this would work.

Given the plain text of the amendment and the practical hurdles to your view, mine is clearly the better way to go.

jafs 2 years, 7 months ago

You haven't actually addressed my argument, other than to disagree with it.

And, it's very unlikely that either of us will convince the other, so at a certain point, it appears to be a waste of time.

I haven't figured out all of the details of implementation - I'd have to think about it. But, it seems to me that there could be ways to do it - for example, a non-advocacy corporation could be required to show a majority vote of shareholders supporting a political ad when they take it out.

If I use company funds, and represent it as the business view, I've essentially committed fraud and theft by conversion, if you didn't agree to it, haven't I?

Government would certainly be involved in that - you could sue me and win - do you propose to do away with those sorts of suits?

As I said, neither one of us will convince the other - your view may be simpler, and require less enforcement, but I don't agree it's better.

ebyrdstarr 2 years, 7 months ago

I have addressed your argument. That you won't acknowledge it isn't my fault.

You would have government way, way too involved in regulating speech before it is even published. I am very much not comfortable with that.

Fortunately for me and everyone else, courts agree that my view is better. Citizens United was most definitely not the first time, nor will it be the last time, that a court didn't even blink before recognizing that the First Amendment prohibits Congress from restricting speech, regardless of the identity of the speaker.

jafs 2 years, 7 months ago

Your arguments have failed to convince me, and mine have failed to convince you.

Let's stop this already.

You think you're right, and I think I'm right - we're not in court, so there's no judge or jury to decide the issue.

Having gone through this at some length with you twice, I think it would be futile to do it again, don't you?

Have a nice day.

Liberty275 2 years, 7 months ago

"Corporations don't do that - people that work for them do that."

No. People are paid to create the works, but when a company adversities a product, the corporation, not the person making the ad, is responsible for the message.

If the ad is misleading, the corporation is fined, not the graphic designer that did the layout work. In your world, we are punishing one party for the actions of another.

jafs 2 years, 7 months ago

I'd like to meet "the corporation" - where is it? Can you introduce me to it?

Corporations are odd creations of our legal system.

As such, I don't think they deserve 1st amendment rights - they can have whatever rights and obligations we decide, since we created them. The foundation of the rights in the bill of rights is the "All men are created equal, and endowed..." part of the DOI - they don't apply to man-made things like corporations.

So it's hard to decide what the "identity" of a corporation is - is it the shareholders? No, they're part owners "of the corporation". Is it the employees? No, they work "for the corporation". Etc.

That's part of the problem here.

Whichever employees are responsible for the misleading ad are responsible, in my view - that may not be the graphic artist who did the layout work. It's much more likely to be somebody in management, who hired an ad firm, or the ad firm, etc.

Corporations can't "do" anything - people do things.

ebyrdstarr 2 years, 7 months ago

I'd like to meet The New York Times and the Catholic Church. What do you mean you can't introduce me to them?? Gee, I guess the First Amendment doesn't apply to them, then.

jafs 2 years, 7 months ago

See above comment for my response if you haven't already.

I'm going to stop responding now.

Liberty275 2 years, 7 months ago

The answer is staring you in the face.

"Congress shall make no law... abridging the freedom of speech,"

Cait McKnelly 2 years, 7 months ago

Hey, George, how about another amendment? One stating that any business operating as a "news broadcaster" has to tell the truth (thus kicking Fox Broadcasting out of the US the same way it's been banned in Canada). In other news, Nicolas Sarkozy just got kicked out in France. The times they are a changin'. Squeallll, Georgie. That gate hasn't quite closed yet.

Liberty275 2 years, 7 months ago

"has to tell the truth"

Tell me the truth. When does a fetus become a human?

Cait McKnelly 2 years, 7 months ago

I'll tell you that when you tell me how many angels can dance on the head of a pin.

Liberty275 2 years, 7 months ago

I'm not the one that wants legislated truth. You can't provide the truth regarding a subject I know you are interested in. Maybe instead you should call for "news programs" to say only what you want them to. It's just as arbitrary.

Also, angels don't exist, therefore none can dance anywhere, including on the head of a pin.

SnakeFist 2 years, 7 months ago

A human fetus is, by definition, human from the moment of conception. After all, its not a cat fetus or a dog fetus - it has human DNA.

But that's irrelevant. The issue is whether it is rational, not what DNA it has, because only rational beings have moral rights and obligations.

MarcoPogo 2 years, 7 months ago

Sounds like a scheme is being cooked up...

bankboy119 2 years, 7 months ago

Yes, it is double homicide. Remember the Scott and Laci Peterson case?

http://www.washingtonpost.com/wp-dyn/articles/A45520-2004Nov12.html

If the woman chooses to murder her fetus, it is abortion, not a child, and her right. If someone else does it without her consent then it is murder.

gudpoynt 2 years, 7 months ago

Who can honestly look at the rise of super PACs as a good thing for politics in America?

It's one thing to lambast a piece of legislation, aimed at rectifying the absurd notion that corporations are people, as too broad and as having potentially dangerous consequences.

It's another thing to use your critique to defend the absurd.

ebyrdstarr 2 years, 7 months ago

The majority opinion in Citizens United did not in any way rest on the idea that corporations are people.

gudpoynt 2 years, 7 months ago

Ah, so it doesn't. Thanks for pointing that out (continued at bottom).

gudpoynt 2 years, 7 months ago

Re: ebyrdstarr, The absurdity of corporate personhood notwithstanding, Kennedy's majority opinion does rest on the absence of distinction between corporations (including those with clear political goals, and $billions with which to disproportionately influence the outcome of public elections) from media companies (e.g. newspapers, publishers, bloggers, etc), and indeed even individuals like you and I.

The lack of any legal language, or any way to interpret the constitution, to make such a distinction. is what I find absurd.

This allows supporters of the Citizen's United decision, like George Will, to use that lack of distinction to paint any attempt to lessen the power of super PACs as an effort to destroy, perhaps inadvertently, the 1st amendment rights of the press and of individuals.

Seriously, Mr. Will? You're telling me there is no possible way to curb the influence of super PACs without doing away with freedom of speech for everybody? Give me a break.

In this column, Mr. Will suggests that a corporation's ability to spend unlimited amounts of money on political campaigns (through a little legalese slight of hand) is one and the same as our sacred Freedom of Speech . To restrict the former, is to relinquish the latter.

This is a false choice ladies and gentlemen. And I don't buy it for a second. There is room in our legal system to make laws, that are constitutional, that outline a clear distinction between the two.

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