At the root of the Court’s attack on popular democracy — and it is an attack, and it will promote if not guarantee rule by unaccountable corporate oligarchy — is the Court’s infamous 1976 Buckley v. Valeo decision that said money equals speech. Left unaddressed in today’s decision — and others — is the absurdity of this formula. When money equals speech, outfits with more money have more speech. And that destroys the very principle of free speech.
Ask yourself this question. If you had to persuade your community about political opinion X, but corporations opposed your view, would you stand a chance knowing that their “political speech” was worth much more than your political speech? The answer is obvious. Mere people have been thrown on the scrap heap. The U.S. Supreme Court is lifting corporations to the top of the evolutionary ladder.MORE
Keith Olbermann goes into the ramifications in his inimitable style :Freedom of Speech has been destroyed.
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And i thought that those cyberpunk novels were fiction. Good god.
Digby says:
From what I gather, there are only a couple of things to be done about this: shareholder empowerment or constitutional amendment, both of which are very, very difficult.
Take a hypothetical homeland security bill. Many people don’t know that Wal-Mart actively campaigns against tighter screening of cargo containers fearing that increased inspections will slow its supply lines. Yet many experts cite 100 percent screening of containers to be a necessary step in protecting our homeland against a terrorist attack. So what happens when a politician with a strong dedication to security matters but who has been bankrolled by Wal-Mart needs to vote on a bill that includes increased container screening? It’s not hard to imagine him rejecting such legislation to ensure Wal-Mart’s support in his re-election campaign.
This kind of political quid pro quo — trading campaign contributions for votes — is a serious concern in our current political climate. Just think how much worse it will be when corporations are free to spend whatever they like.
But even beyond the quid pro quo concerns is the firm belief, shared by multitudes, that more money in our political system is not the direction we should be headed. Rep. Marcy Kaptur (D-Ohio) told me recently that the pressure on members of Congress to raise money is already worse than it’s ever been — and she’s been in the House for 26 years. Kaptur talked of one congressman who spent 90 percent of his time on the telephone fundraising. The obvious question becomes: How the heck did he get anything done? If the Supreme Court rules the way it’s expected to, situations like this will only get worse.
Those in favor of turning back the restrictions assert that special interests are simply groups of individuals advocating a particular issue or candidate, and that restricting what they can spend in this endeavor is the same as limiting their speech. But this is a specious argument. Rolling back campaign finance regulations would result not only in increased political influence by special interests and politicians spending too much time fundraising, but also in a huge increase in negative political ads, as well as the possibility — if not the probability — of increased corruption, and thus even more cynicism about our political system.MORE
The Supreme Court has ruled that we will no longer tell certain groups of people that because of the way they have organized themselves, they cannot talk during elections. This applies to progressive and liberal organizations every bit as much as it applies to businesses.
There are a lot of people that I don’t agree with, but by and large I do not want the state to forbid those people from participating in elections. This is a movement in the direction of greater freedom.
As I think about it more…say goodbye to stopping global warming
This makes no sense. there’s huge moneyed interest in stopping global warming. just google clean tech. environmental start-ups are the next IT in the venture capital world and major venture capital and hedge funds are backing them with huge amounts of money as well as govt lobbyist (*unlike, IT, cleantech actually demand govt regulation since no on is going to buy a more expensive but cleaner light bulb for example without an incentive).
You’d think, since the first amendment is THE American value, the left would look into wether or not a restriction is actually necessary before advocating one. i’m forever gobsmacked by how blind the left is to its history of authoritarianism and oppression.
tell me something, RonF. out of business and progressive and liberal orgs., which ones have the most money? *hint* (They would be the ones who are winning the debate now.) Who will therefore dominate free speech in this country, especially with regard to elections? I mean, Americans are rather easily bamboozled right now Lord knows. Manju, I’ll address your comment with a long delayed post on Copenhagen between now and next week.
So what? That businesses have more money, I mean. Someone has to. Freedom of speech is about ensuring that you get to talk, not about ensuring that you get to win.
It is effectively impossible to have anything like a reasonably free society, and simultaneously prevent people with money from using that money to advance their interests in the polity.
The alternative is 100% publicly financed campaigns. Then everybody’s free speech (wrt elections) is equal.
That doesn’t stop Walmart from putting money into ads advocating less scrutiny when inspecting inbound containers, it just stops them from saying, “Candidate X wants MORE inspection on containers. This will raise the price of goods by 9 kabillion!!!” I think this is a good thing and actually does a lot more for free speech than this decision. This decision means that the point of all politics in the USA will be profit.
That became inevitable around 1917. If the government is in charge of the economy, then succeeding in the economy requires succeeding in getting hold of the government.
“100% public financing” translates, if I’m not mistaken, into “no, you can’t run your private ad during the campaign”. That’s a total violation of free speech. And if it doesn’t mean “no, you can’t run your ad”, then it doesn’t level the playing field; it just taxes me to pay for the dissemination of the opinions of people who couldn’t convince anyone to come up with the money.
It is effectively impossible to have anything like a reasonably free society, and simultaneously prevent people with money from using that money to advance their interests in the polity.
Well, this is literally true. It’s also effectively impossible to have anything like a reasonably free society and simultaneously prevent people from murdering each other, or from bribing government officials.
However, it is entirely possible to have laws against murder and bribery, and to reduce the rates of murder and bribery (even while failing to prevent them altogether), even in a reasonably free society.
Many countries, including Canada, France, Belgium, Spain, Israel, and New Zealand, enforce outright spending limits on campaigns. In Britain overall spending for general elections is limited to $30 million for a national campaign for each party. (Compare this to the $265 million already raised collectively by the 2008 presidential candidates, and the eventual $500 million expected to be necessary for each of the nominees.)
Britain also bans paid political advertising on TV or radio, reducing the total cost of campaigns. Instead, each of the main parties is allotted an equal amount of free air time to put across their message.
In Europe, campaigns are financed publicly, requiring considerably less money overall. […]
A survey of 104 countries with campaign finance rules reveals that 41% impose spending limits, 22% ban paid political advertising and 79% offer free political broadcasting. A further 59% directly subsidize campaigns with government money.
Experts admit that even in the presense of such rules, there are ways private companies still manage to influence candidates, such as by offering them lucrative employment positions after they leave office. But in general, despite numerous major campaign finance scandals in Europe, the biggest problem is one of enforcement of existing laws. Far more subdued is the debate abroad over campaign finance reform, because unlike in America, citizens are satisfied with the rules they’ve enacted.
And the “results” are indeed promising. In a 2003 survey of business executives (”Political Finance,” pg 31), the World Economic Forum found that respondants in democracies with strong campaign finance rules like Finland, Sweden, the Netherlands, and New Zealand gave their countries a low corruption rating when asked about the policy consequences of legal political donations, while the US is the only industrialized country whose respondants gave it a high corruption rating.
Many reasonably free societies do, in fact, have campaign finance laws.
You can stil be free without a lot of things. Not all free countries have the right to an abortion. The french ban students from wearing the hijab, something unthinkable here where the first amendment is the central virtue.
Thats the point. this is a agreat experiment in liberalsim. corportions play a huge role in why america is so great. I’d hate to see them silenced.
Britain also bans paid political advertising on TV or radio, reducing the total cost of campaigns. Instead, each of the main parties is allotted an equal amount of free air time to put across their message.
Putting political power into the hands of political parties at the expense of non-political-party actors. I don’t like that at all. Note that in the Constitution there is no mention of political parties. I see no reason to empower political parties at the expense of other entities and good reasons NOT to do so. How would this not tend to shut new parties and candidates who are not supported by a party out of the electoral process?
Did this law limiting political speech apply to unions as well as corporations? Because if not then all of a sudden striking it down becomes less objectionable to me. I would not want to privilege unions over corporations – and vice versa, I hasten to add.
There are a lot of non-commercial entities with money to spend. George Soros comes to mind. Media organizations that can choose what kind of news to cover and not cover, and what kind of spin to put on them also come to mind. I’m starting to come around to the position that perhaps this was NOT a bad thing. I don’t see why businesses should be discriminated against when other groups are not.
Well, this is literally true. It’s also effectively impossible to have anything like a reasonably free society and simultaneously prevent people from murdering each other, or from bribing government officials.
However, it is entirely possible to have laws against murder and bribery, and to reduce the rates of murder and bribery (even while failing to prevent them altogether), even in a reasonably free society.
Which is why we have the 1st and 2nd Amendments; so we can call out the murderers and bribers and bribees and defend ourselves against the former at least instead of being at the mercy of whatever level of protection the State decides to provide.
The alternative is 100% publicly financed campaigns. Then everybody’s free speech (wrt elections) is equal.
Which puts the State in charge of determining who is a viable candidate and who is not and who gets access to the public money and who doesn’t. Not good.
How long have there been restrictions on corporate political speech? What was the situation before McCain-Feingold? I’m trying to figure out whether we are in a brave new world or if we have be returned to the status quo ante.
How does the current US system not tend to shut new parties and candidates who are not supported by a party out of the electoral process?
It doesn’t. The Reform Party got something like 20% at the national level. They fell apart because they were a badly-thought-out party, but nobody stopped them. If they’d had their shit together, they could have displaced or reshuffled the existing majors; nothing got in their way.
Nobody’s shutting out the Greens, either. They just aren’t getting many votes in most elections.
It doesn’t, huh? So you’re saying that Ron Paul, Ralph Nader, even Ross Perot (among others) faced no unreasonable obstacles not faced by the two major parties to get their names on the ballot in all 50 states in their respective runs at the Presidency?
Your initial comment is nonsense in another way not previously addressed. No one, no matter how they were organized was prevented from participating fully in politics. A shareholder of a corporation was free to participate in politics. The owner of a small business was free to participate in politics. The member of a union was free to participate in politics. the CEO of a corporation was free to participate in politics. The president of a union was free to participate in politics. The PR flack of a union or a corporation was free to participate in politics.
What wasn’t allowed to participate in politics was the corporation or the union itself. The CEO, having determined that the corporate profits would be maximized by supporting a particular politician was not allowed to order her employees to expend company resources participating in politics. The head of the union was not allowed to order union employees to expend union resources supporting a politician.
That is what has changed. Your framing of the change is flagrantly inaccurate to the point of blatant dishonesty.
As to why it is a bad thing, even for right wingers: corporations have no responsibility to serve the public good. In fact, to the extent that the public good differs from maximizing corporate profits, publicly held corporations are forbidden from serving the public good. That is why we have traditionally forbidden them from directly involving themselves in politics. While the CEO or board member or stock holder may value justice or morality or the future of humanity over the profits of a particular corporation. The CEO acting as head of the corporation is duty bound to place corporate profit before all else.
@Charles S.: Another reason it’s a terrible idea is the fact that very few companies are entirely American owned.
So to those that think this is a grand idea ensuring freedom for all: What, *exactly* is to prevent a country like China (Or Iran, for that matter) from purchasing a small corporation or the majority of stock in one and spending a few hundred million on campaign ads? Wouldn’t getting people friendly to them elected be worth it?
No one, no matter how they were organized was prevented from participating fully in politics. A shareholder of a corporation was free to participate in politics.
By this logic, If the US Govt shuts down the NYTimses, nobody’s first ammedment rights are violated since the individuals within the NYTimes can still particiapate in politics, just not thru the organizaion–indeed the corporation–we call the NYTimes.
Most people do not have the resources to participate in politcs by themselves. Hell, unusualmusic uses an organizaion called alas, a blog. Citizens United pooled their resources into an orgaization for the purpose of distributing a michael moorish like film intended to influence an election. That is a fundamental right, indeed precisely the type of speech that enjoys the highest first ammedment protection.
By not allowing the film to be aired the government violated these individuals first ammedmt rights in the same way it would if they prevented the NYTimes from editorializing.
You know, I don’t know how much of an effect this will actually have.
Do political ads actually work? How much does it cost to put on enough advertising to “buy” one vote in a Congressional election? Are there diminishing returns to political advertising in terms of dollars per vote “bought”? I suspect that political advertisements do less to influence elections than some people might hope.
Another interesting question: Does being given money make politicians successful, or do the qualities that make them successful in politics (including past successes in politics) also make them better at fundraising? Candidates with more money do win more often, but correlation doesn’t imply causation; donors with deep pockets might be more interested in backing winners than in dramatically swinging elections. According to the authors of Freakonomics, there are times when the same two candidates run against each other more than once, and, when that happens, changes in the amount of money each candidate spends don’t have much of an effect on the outcome of the election. I don’t know if I trust the Freakonomics authors to be right about this, but if they are, it would suggest that money doesn’t matter as much as one might think.
By this logic, If the US Govt shuts down the NYTimses, nobody’s first ammedment rights are violated since the individuals within the NYTimes can still particiapate in politics, just not thru the organizaion–indeed the corporation–we call the NYTimes.
Manju, have you even read the first amendment?
The NYTimes is the Press, which is expressly protected in the text of the first amendment. In contrast, “corporations” are not mentioned in the first amendment.
The NYTimes is the Press, which is expressly protected in the text of the first amendment. In contrast, “corporations” are not mentioned in the first amendment.
Amp: I read the “free press” clause as meaning we all have the right to engage in reporting and opinion making, not that a particular industry (“the press”) gets special protection.
After all, religions themselves aren’t the only ones afforded “freedom of religion”…all individuals and groups have the protection by mere virtue of practicing their religion, even if its just one guy who made up his religion this morning.
Going back to the founding, the press referred not just to by professional newsmen, but also authors, pamphleteers, leafleters, or any individual or organization engaging in those activities.
To interpret the phrase “or abridging the freedom of speech, or of the press” as meaning special protection for an elite group called “the Press” strikes me as a severe limitation (because you are restricting it to one industry) of a basic freedom. It is not a right afforded to a particular group, it is a right to engage in a particular activity….like the rest of the bill of rights.
Justice Stevens disagrees, i know. But frankly this is really disturbing and this authoritarian tendency is one reason why i still call myself a right-winger. Censoring Citizens United is unfathomable–political speech is the most protected form of speech– and his interpretation of the right to free press turns the doctrine of unalienable rights on its head…by transforming it into a form of elitism as opposed to equal protection.
So my point holds,…If you leftist censors are correct, there’s noting preventing the government from imposing limits on newspapers if they are organized as corporations, other than a dramatic redefinition of rights to mean a certain class of individuals gets special protection.
Supreme Court approval of restrictions on the political speech rights of corporations is a hundred years old. The new rights for corporations discovered by the daring Originalists with their contempt for stare decisis were not required to protect the New York Times from being shut down by the government. Those rights of protection for the press were well established, at the same time that the political speech rights for corporations were limited. Clearly you can not fathom how this could be so, but you can rest assured that it was so for a hundred years.
I think it’s fair to say, Charles, unusualmusic, Amp, and other critics of the decision, that at least part of your position is that free speech is a right that inheres in individuals, not in legal fictions or entities. If that’s not correct, please let me know, but I’m pretty sure it is.
The funny thing is here, that in my view, even if you are correct, the ruling is still right. Even if free speech is limited strictly to individuals, it is still such a powerful right that those individual’s free speech rights are sufficient to overturn any formal restriction on their expression. The government MAY NOT stop me from running an advertisement (without the usual superpowerful reason, like I’m publishing the a-bomb plans or something) for my candidate – and that holds whether I put the ad together myself and am using my own personal free speech right, whether I hire professionals to do it and fundraise via my activist network to pay for it, or whether I form a corporation or direct an already-existing corporation to prepare a message.
It is MY free speech right, in your view, that is supremely powerful. Very well – does not that power extend to the arrangements I choose to express my voice?
I think that it fairly clearly does. And so even if you subscribe to the theory that the free speech right is individual, I think that the power of that individual free speech right is so great that it overwhelms arguments about form of expression. Some individual makes the final choice in an organization or corporation to run a particular ad or make a particular statement; that individual’s free speech right is huge, and even though “someone else” (their employer, or their corporation, or their union) is paying for the publication, the state just cannot infringe on that expression without strongly compelling reasons.
“We don’t want the UAW/AFL/IBM/Google machine to be able to run ads for or against candidates” just doesn’t seem all that compelling a reason, particularly when all parties in the political system have broadly equal access to paid media, self-published media, the Internet, etc.
If you really believe that an individual like me has “broadly equal access to paid media” compared to, say, Microsoft, then you’re simply not connected to reality in any way at all.
Might as well argue that two people — one with a single can of beans and no money, and one that owns a fully stocked supermarket — have “broadly equal access to food.” Yes, they both have some sort of food they have access to; no, there is nothing at all like equality there.
Equal access, not equal resources. You can write a check and publish an ad. So can Microsoft. The point is that the system is open to all comers (rather than requiring you be, say, a “media corporation”), not that the system balances resources between players.
Yes, they’re much bigger than you. The UAW is much bigger than me. I don’t want to silence them in the political arena, even though they’re costing me tax dollars right now.
I’m concerned about the zeitgeist–that we’re losing the aclu left, ie the aclu of skokie days; who along with the libertarian right created a broad consensus resisting the authoritarian left and right. Now, even the ACLU tries to suppress the free speech rights of the St patricks day parade organizers, 4 liberal justices tried to suppress the free speech rights of the boy scouts, and recently a popular liberal congressman, alan grayson, attempted to jail (for 5 years) a critc…and was met with crickets from the left. it should be noted, he was using federal election laws as a pretext.
Supreme Court approval of restrictions on the political speech rights of corporations is a hundred years old.
Incorrect. Before 1990, individuals had the right to engage in political speech regardless of their corporate identity. then came Austin v. Michigan Chamber of Commerce, which scotus just overturned.
The new rights for corporations discovered
No new rights were discovered. Free speech rights now apply to individuals who speak using the platform of a corporation, like Citizens United.
their contempt for stare decisis
You don’t have contempt for dred scott?
not required to protect the New York Times from being shut down by the government. Those rights of protection for the press were well established, at the same time that the political speech rights for corporations were limited.
If McCain Feingold were upheld, the govt could theoretically then censor the press, as long as the press in question were a corporation. Thje only way around that is to posit that the free press clause offers special first amendment rights to the press as an industry, as opposed to individual engaging in press activities..and that’s as problematic as interpreting the free exercise clause as only protecting organized religion, as oppossed to individuals engaging in religious practices, as I explained in some detail in #30.
Yes, the position of people who are involved in corporations in the US has, for the past 2 decades, have been directly comparable to that of slaves and of freed slaves who could be captured and re-enslaved at any time. Oh wait, I meant No, completely incomparable.
Well then perhaps you should consider the role the first amendment plays in enabling liberation movements, like the civil rights one. If you haven’t noticed, King’s argument was steeped in this constitutional tradition, as he saw the solution in the very founding that institutionalized the problem— in “the magnificent words of the Constitution and the Declaration of Independence.”
Manju, do you believe that child porn should be legal? How about libel laws — are you against them? How about falsely yelling fire in a crowded theater, causing a panic — was it wrong to outlaw this? [*] How about the laws forbidding partisan campaign workers from entering an active polling place and trying to talk to voters while they’re voting? How about copyright and trademark laws which limit people’s ability to legally say whatever they want in certain ways? ETA: How aboutarrestedprotesters?
Your argument boils down to accusing people who think that the speech of corporations should be limited in some ways, of being against free speech in general. So I want to know just how much of a free speech absolutist you are. My suspicion is that there are many cases where you do, in fact, agree that there are limits on speech, and even limits on the applicability of the first amendment.
[*] I hate it when people use this cliche but leave the “falsely” out.
[*] I hate it when people use this cliche but leave the “falsely” out.
The word “falsely” was not in the original quote from Justice Holmes, I believe. Although clearly implied in it’s context.
People here are forgetting one constraint on corporations – their customers. If a corporation decides that supporting a particular idea/law/issue is of interest to them, they have to balance that against the impact that angering those among it’s potential or real customer base who oppose their position. Corporations will be cautious about this and are not likely to stick their necks out too much.
Indeed, here in Illinois there is no restriction on corporate political free speech in State elections (which were not at all affected by McCain-Feingold), yet we rarely see such ads. I suggest that in many of your own states you will see the same situation.
Charles S.:
Notorious leftists like John McCain…
Actually, his co-sponsoring of the McCain-Feingold act greatly angered most of the right, caused them to label him a RINO and cost him conservative support.
Dred Scott was overturned by the 14th Amendment, not by the Supreme Court, so it is completely irrelevant to a discussion of stare decisis. To bring it up is simply to analogize the wrongs of slavery to the wrong of some limits on corporate political speech in the immediate run-up to an election, which is idiotic.
It is not sufficient to point to bad supreme court decisions to nullify the principle of not nullifying prior supreme court decisions willy-nilly. You must demonstrate that the current case in which stare decisis is ignored is a wrong of the same sort as previous cases that we all agree were wrongly decided and rightly overturned. If you want to set Dred Scott as your bar, that is a high bar, but you are welcome to try.
Tell me what the actual demonstrated harms to the rights of any people were from the the existing law, and how they were not necessary to protect the critical state interest of having elections that are both free and fair and perceived as free and fair. Skip the fantasies about how any other decision here would authorize the government to close the New York Times. Where are the demonstrated unnecessary harms from McCain-Feingold that are the equal of slavery and of the complete lack of rights for anyone who was claimed to be a slave or the descendant of a slave?
It occurs to me that both the original poster and most of the commenters here are decrying this decision based on what they think it’s effects will be. However, the Supreme Court is not supposed to rule on the desirablilty of the effects of a law; that’s the role of the legislature. It’s supposed to rule on the Constitutionality of the law. Where do you think that the majority got it wrong in evaluating McCain-Feingold with regards to it’s constitutionality?
It occurs to me that both the original poster and most of the commenters here are decrying this decision based on what they think it’s effects will be. However, the Supreme Court is not supposed to rule on the desirablilty of the effects of a law; that’s the role of the legislature.
In point of fact, the Court performs “balancing tests” — which routinely consider outcomes — all the time, including in first amendment cases.
The NYTimes is the Press, which is expressly protected in the text of the first amendment. In contrast, “corporations” are not mentioned in the first amendment.
Sheesh.”
This is entirely wrong both historically and legally. Freedom of speech and of the press are not identifying two different types of entities who get different protections. It identifys two different methods *that any citizen* can use to communicate.
It is not Freedom of speech and for *THE PRESS* [a special elite of reporters and commentators who get extra special protection].
So back to Manju’s comment:
By this logic, If the US Govt shuts down the NYTimses, nobody’s first ammedment rights are violated since the individuals within the NYTimes can still particiapate in politics, just not thru the organizaion–indeed the corporation–we call the NYTimes.
This is entirely correct under the “corporations do not have 1st amendment rights” concept.
Do you honestly think that the 4 justices who dissented on this decision, or the majority who wrote the decision this one overturned, would declare a law allowing the government to close the New York Times (or even the Washington Times)? If not, you have to accept that while you are incapable of imagining a distinction between restricting the speech rights of non-press corporations during the run-up to elections and allowing the government to shut down press organizations, there are plenty of reasonable and knowledgeable people who are somehow able to imagine a legal space between those two actions.
True, Amp. So what I’m asking here is, “What were the Constitutional issues considered by the Court and how did they adjudicate them?” We’re all complaining about what they did, but there’s no discussion of why they did it.
It does matter. The reasons given by the Court on how they have interpreted the Constitution become the basis for legislation time and time again. Plus, minority positions have in time become majority opinions. Despite the cynicism that all of us (even I on occasion) indulge in, the Constitution is (or at least should be) more than what a majority of the Court says it is.
I can see where people may not like the effect of this ruling. But while the Court does consider outcomes (and properly so – “You can’t yell fire …”, etc.) the wording of the Constitution and the intent of those who wrote it is supposed to be of primary concern to the Justices. They are not supposed to figure out what they want to do and then decide how to justify it, they’re supposed to figure out what the Constitution says first and then see how the law fits it. Tell me what was wrong about their logic regarding what the Constitution says.
Do you mean that the Supreme Court did a horrible job interpreting the Constitution, or that you anticipate that the decision will have a horrible effect? If at least the former (because you may think both are true) please tell me what you think they got wrong about how to apply the Constitution in this case.
Despite the cynicism that all of us (even I on occasion) indulge in, the Constitution is (or at least should be) more than what a majority of the Court says it is.
Then you disagree with the Constitution which pretty well defines what the Constitution is by what a majority of the court says it is. There is no higher authority, constitutionally speaking, than the SCOTUS.
We can all disagree with rulings of SCOTUS but we cannot deny that they are the ones who determine what the Constitution is.
I understand the power of the Supreme Court, Jake. What I’m saying is that the members of the Court should honestly try to determine what it means, especially in the sense of what the people who wrote it meant, and then apply that standard to the laws they are comparing to it. As opposed to running the process in reverse, where they decide whether or not they like the law and then look to see how they can cite the Constitution – or not – to support their position.
The latter is an emotional reaction, but we ask for rationality from the Court.
Do you honestly think that the 4 justices who dissented on this decision, or the majority who wrote the decision this one overturned, would declare a law allowing the government to close the New York Times (or even the Washington Times)?
I can’t imagine they would. They would try to create a distinction. But the distinction they would create–the one Justice Stevens creates in his dissent (the press has special protection)–would further restrict first amendment rights by limiting the freedoms found in the “free press” clause to an entity called the press, as opposed to all individuals who happen to be excising the freedoms protected by that clause, which is the way the bill of rights is usually read.
So supporters of McCain-FeinGold present us with 2 choices: either narrow down the protection of the free press clause, or allow the governement to regulate media corporations. Not a good choice.
So I want to know just how much of a free speech absolutist you are. My suspicion is that there are many cases where you do, in fact, agree that there are limits on speech, and even limits on the applicability of the first amendment
Amp:
The philosophical context of the bill of rights is classical liberalism, which holds that all freedoms are limited by the freedom of others, ie the right of others not to be subject to the initiation of force or fraud. Indeed, this is the very purpose of govt in a liberal regime: “That to secure these rights…” (life, liberty, and the pursuit of happiness) “…Governments are instituted among Men, deriving their just powers from the consent of the governed.”
So, a person engaging in reporting therefore doesn’t have the right to break into your house to get the story. Your property rights place a proper limit on his free press ones. That’s why national security (your free speech rights don’t give you the right too endanger another person’s life) is one of the great exceptions to the first amendment, and of course one of the great areas of abuse (alien and sedition acts, for example).
So, to go to your examples, thats why falsely yelling fire in a movie theatre is unprotected…it puts others in a clear and present and immanent danger. (you can–it should be noted–put people in danger in an abstract way…like say advocate for genocide or commuinism but without going as far as calling for immediate violent action).
Child porn is unprotected b/c its defacto assault, ie an inititionof force (children do not have agency, therefore you are violating their rights). Protesting the govt is expressly protected in the first amendment (“right of the people peaceably to assemble, and to petition the Government for a redress of grievances”) so if the govt is arresting you it has to be justifyed by your behaviour…the protests are violent, you’re trespassing, ie you are initiating force. copyright and trademark laws follow the same logic that a reporter can’t break into your house, ie your free speech rights are limited by other peoples property rights. I’ve honestly never given any thought to libel or polling places restricions so i have to punt on those.
So Manju, what are the harms that we have seen in the past two decades as a result of a few small limitations on the political speech rights of corporations that are comparable to thousands of people being forbidden from marrying the person they love? Not the harms you imagine might come, the harms that we have already seen.
Accepted practice for the Supreme Court is to decide cases on the smallest grounds available. They should only consider constitutionality of a broad class of law if they absolutely must.
The FEC ruled that a movie on pay-per-view was much the same thing as a paid political advertisement. That ruling over-reached what the law covered, so the Court could have ruled that the FEC was wrong. If they felt that the FEC was not clearly wrong, but that banning a movie on pay-per-view was a an excessive violation of the speech rights of a corporation for the goal of protecting uncorrupted elections, then they could have ruled that to the degree that McCain-Feingold allowed the FEC to ban movies, McCain-Feingold was unconstitutional. Instead of either of those courses, which would have begun establishing precedent for expanding the speech rights of corporations, recognized stare decisis and allowed a gradual experiment, they jumped right to the largest possible ruling, ruling on subject matter that didn’t have to be decided to decide the case. This is basic activist judge over-reach, the very thing that Alito and Roberts lied to the senate about in their confirmation hearings.
I find it interesting that the opposition to this law is based on speculation, not facts. No actual examples of corporations such as Wal-Mart (to quote the example) attempting to influence legislation through political advertisements are given.
But there should be. McCain-Feingold applied only to Federal campaigns. State campaigns were unaffected. If what the opponents say about revoking this law is true then there’s no need to resort to speculation. We should be able to point to campaigns at the State level that were affected by untrammeled access to the political podium by corporations, at least in states like Illinois that have no such law.
Now I personally have not noticed any such problems here in Illinois. The corporations tend to keep their mouths shut. I have seen no ads where the media have jumped up and said “This ad against/for this issue was financed by BigAssCorporation International because it’s in their interest.” And I can’t believe they’re asleep at the wheel all the time. I speculate this is because corporations see the risk of alienating potential customers as greater than the likelihood of actually getting what they want through political ads.
That’s the great thing about Federalism. We have 50 laboratories where different versions of laws can be tested out. So rather than speculate, how about those who oppose this do their research. Tell me, what have you seen in your state? What are it’s laws, and what has been the actual result?
If MSNBC can form a corporation and hire people such as Keith Olbermann to voice his opinion on one political issue or another why can’t Citizens United?
Charles S. – I’ll have to read the decision before I can comment on your posting. I will say that it is my understanding that the Supremes generally limit their rulings to narrow grounds whenever possible. But I’m no expert on the subject.
How did this ruling violate “stare decisis”? Had there already been a ruling on McCain-Feingold?
Accepted practice for the Supreme Court is to decide cases on the smallest grounds available. They should only consider constitutionality of a broad class of law if they absolutely must
It was impossible to decide narrowly, apparently. I don’t know why but I believe Scalia’s concurrence explains in debt. This seems accurate because, if you notice, the 4 dissenters also ruled broadly.
In other words, the 4 liberals could’ve ruled narrowly in favor of citizens united, but still kept the gist of Mccain Feingold. apparently though, this was impossible. one of the disconcerting things about this case is that citizens united isn’t exxon mobile, ie this is not an example of a corporation engaging in electioneering in order to subvert democracy by buying off a politician for their own profit motive (lets say they wanted subsidies or something). None of the raison d’etere (ie the alleged vcompeelleing governemttal interest) for such exptrodinary limiting of speech was apparent in this case.
CU may not be the NYTimes but they are like Michale Moore: an unhinged partisan simply crapping up the public discourse. but in our regime such individuals enjoy equal protection to the NYTimes. yet 4 justices said no, either because they thought groups like CU should have lower protection (which would be really disturbing) or b/c there was no was to protect them, ie rule narrowly, without throwing out McCain-Feingold…which they didn’t want to do.
So Manju, what are the harms that we have seen in the past two decades as a result of a few small limitations on the political speech rights of corporations that are comparable to thousands of people being forbidden from marrying the person they love?
I don’t know why you think it has to be comparable. SCOTUS has overturned many decisions before that were not comparable to loving, though its unclear to me why the harm done to citizens united is less than the harm done to the Lovings. after all, the Lovings could move to another state and get married, while CU’s speech was barred nationwide.
anyway, since we were talking about fire in a movie theatre, Brandenburg v. Ohio overturned Whitney v. California, and by adding the condition “likely to incite imminent lawless action” to oliver wendell hlomes “clear and present danger” test it effectively overturned Schenck v. United States, the case where the phrase “fire in a move theatre” first appeared (Holmes had actually upheld the govt’s restriction of free speech in that case).
In all these case the govt had a compelling state interest of public safety and national defense, yet scotus ruled against them despite 2 cases of stare decisis and despite the defendants being worthless extemists like CU (ie, CU is not the NYTimes argument), as they were Klansman, communists, and socialists respectively.
Dissents don’t rule, so there is no expectation that dissents will be any narrower than the grounds on which the dissenters disagree with the ruling. A dissent may dissent specifically on the point that a ruling is overly broad, but unless the only point of disagreement is that it is overly broad, it makes no sense for the dissenters to not explain all of why the disagree with the ruling.
Everyone has the right to free speech, but that doesn’t mean that I have the right to stand in the middle of Main Street with a megaphone screaming my political views at the people around me.
Louder volume ought not equal more speech.
Similarly, more money can be used to repeat a message with such frequency that it drowns out the opposition, or to donate so much money to a politician that they feel they need to support your position. That doesn’t seem like free speech to me either.
Free speech ≠ the right to dominate the arena of debate with your resources, whether they’re physical (shouting, screaming) or financial (dollars, cents).
Dissents don’t rule, so there is no expectation that dissents will be any narrower than the grounds on which the dissenters disagree with the ruling.
You’re missing the point. If what you are saying…
That ruling over-reached what the law covered, so the Court could have ruled that the FEC was wrong. If they felt that the FEC was not clearly wrong, but that banning a movie on pay-per-view was a an excessive violation of the speech rights of a corporation for the goal of protecting uncorrupted elections, then they could have ruled that to the degree that McCain-Feingold allowed the FEC to ban movies, McCain-Feingold was unconstitutional.
…is true, then that is what the 4 dissenters would have done. They would have concurred (vindicated CU) but concur narrowly, ie refuse to overturn the precedents and maintain limitations for some corporations, but not CU.
But yet they didn’t. They chose instead to try to use the power of the state to suppress CU. Clearly it therefore was logically impossible to protect CU while simultaneously maintaining the precedents and maintaining restrictions on other corporations. Ergo, the broad ruling (and broad dissent).
In contrast, Justice Thomas joined the opinion but dissented on the disclosure issue (he thinks requiring disclosure is also unconstitutional).
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Flash forward to 2094, when people who are ten now will be like "the internet was different back then! We were all friendlier... there were hardly ever trolls... Now it's all gone to shit."
I love that Caterpillar boots were among the returned items, and in this photo an Amazon worker took, you can clearly see the "CAT" logo near the cat. Cat climbed into Amazon return box, found alive 630 miles away wapo.st/3JJ3vqT
A new cartoon for May Day! This has been an incredible year for unions in the USA - may next year be even better. Unions Have Always Done The Impossible! #PoliCartoon #Union #LaborDay2024 #MayDay2024 #May1st #UBI #LivingWage
People on reddit are fighting about a cartoon I did about why the US health care system sucks and I am enjoying this too too much. https://www.reddit.com/r/comics/comments/1ch0l0r/why_us_health_care_is_such_a_terrible_system/?sort=old
I just posted a new cartoon! It's patreon supporters only for now, but in a week or so I'll make it public. :-) https://www.patreon.com/posts/deus-ex-machina-103359912?utm_medium=clipboard_copy&utm_source=copyLink&utm_campaign=postshare_creator&utm_content=join_link
i hope it more like Snowcrash or Accelerando and not Neuromancer or Hardwired
The Supreme Court has ruled that we will no longer tell certain groups of people that because of the way they have organized themselves, they cannot talk during elections. This applies to progressive and liberal organizations every bit as much as it applies to businesses.
There are a lot of people that I don’t agree with, but by and large I do not want the state to forbid those people from participating in elections. This is a movement in the direction of greater freedom.
This makes no sense. there’s huge moneyed interest in stopping global warming. just google clean tech. environmental start-ups are the next IT in the venture capital world and major venture capital and hedge funds are backing them with huge amounts of money as well as govt lobbyist (*unlike, IT, cleantech actually demand govt regulation since no on is going to buy a more expensive but cleaner light bulb for example without an incentive).
You’d think, since the first amendment is THE American value, the left would look into wether or not a restriction is actually necessary before advocating one. i’m forever gobsmacked by how blind the left is to its history of authoritarianism and oppression.
tell me something, RonF. out of business and progressive and liberal orgs., which ones have the most money? *hint* (They would be the ones who are winning the debate now.) Who will therefore dominate free speech in this country, especially with regard to elections? I mean, Americans are rather easily bamboozled right now Lord knows. Manju, I’ll address your comment with a long delayed post on Copenhagen between now and next week.
Say what? I didn’t post on this.
S/he meant me, not you.
So what? That businesses have more money, I mean. Someone has to. Freedom of speech is about ensuring that you get to talk, not about ensuring that you get to win.
Equating money to free speech ensures that those with the most money win. I think that really lessens free speech. But the road to hell and all that.
What’s the alternative, Jake?
It is effectively impossible to have anything like a reasonably free society, and simultaneously prevent people with money from using that money to advance their interests in the polity.
The alternative is 100% publicly financed campaigns. Then everybody’s free speech (wrt elections) is equal.
That doesn’t stop Walmart from putting money into ads advocating less scrutiny when inspecting inbound containers, it just stops them from saying, “Candidate X wants MORE inspection on containers. This will raise the price of goods by 9 kabillion!!!” I think this is a good thing and actually does a lot more for free speech than this decision. This decision means that the point of all politics in the USA will be profit.
That became inevitable around 1917. If the government is in charge of the economy, then succeeding in the economy requires succeeding in getting hold of the government.
“100% public financing” translates, if I’m not mistaken, into “no, you can’t run your private ad during the campaign”. That’s a total violation of free speech. And if it doesn’t mean “no, you can’t run your ad”, then it doesn’t level the playing field; it just taxes me to pay for the dissemination of the opinions of people who couldn’t convince anyone to come up with the money.
Enjoy your oligarchy. If you think what Russia has now is a good system, you’ll love what this creates.
Well, this is literally true. It’s also effectively impossible to have anything like a reasonably free society and simultaneously prevent people from murdering each other, or from bribing government officials.
However, it is entirely possible to have laws against murder and bribery, and to reduce the rates of murder and bribery (even while failing to prevent them altogether), even in a reasonably free society.
Many reasonably free societies do, in fact, have campaign finance laws.
A fair point concerning mitigation rather than eradication.
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You can stil be free without a lot of things. Not all free countries have the right to an abortion. The french ban students from wearing the hijab, something unthinkable here where the first amendment is the central virtue.
Thats the point. this is a agreat experiment in liberalsim. corportions play a huge role in why america is so great. I’d hate to see them silenced.
Britain also bans paid political advertising on TV or radio, reducing the total cost of campaigns. Instead, each of the main parties is allotted an equal amount of free air time to put across their message.
Putting political power into the hands of political parties at the expense of non-political-party actors. I don’t like that at all. Note that in the Constitution there is no mention of political parties. I see no reason to empower political parties at the expense of other entities and good reasons NOT to do so. How would this not tend to shut new parties and candidates who are not supported by a party out of the electoral process?
Did this law limiting political speech apply to unions as well as corporations? Because if not then all of a sudden striking it down becomes less objectionable to me. I would not want to privilege unions over corporations – and vice versa, I hasten to add.
There are a lot of non-commercial entities with money to spend. George Soros comes to mind. Media organizations that can choose what kind of news to cover and not cover, and what kind of spin to put on them also come to mind. I’m starting to come around to the position that perhaps this was NOT a bad thing. I don’t see why businesses should be discriminated against when other groups are not.
Well, this is literally true. It’s also effectively impossible to have anything like a reasonably free society and simultaneously prevent people from murdering each other, or from bribing government officials.
However, it is entirely possible to have laws against murder and bribery, and to reduce the rates of murder and bribery (even while failing to prevent them altogether), even in a reasonably free society.
Which is why we have the 1st and 2nd Amendments; so we can call out the murderers and bribers and bribees and defend ourselves against the former at least instead of being at the mercy of whatever level of protection the State decides to provide.
Equating money to free speech ensures that those with the most money win.
Who had the most money; Coakley or Brown?
The alternative is 100% publicly financed campaigns. Then everybody’s free speech (wrt elections) is equal.
Which puts the State in charge of determining who is a viable candidate and who is not and who gets access to the public money and who doesn’t. Not good.
How long have there been restrictions on corporate political speech? What was the situation before McCain-Feingold? I’m trying to figure out whether we are in a brave new world or if we have be returned to the status quo ante.
How does the current US system not tend to shut new parties and candidates who are not supported by a party out of the electoral process?
How does the current US system not tend to shut new parties and candidates who are not supported by a party out of the electoral process?
It doesn’t. The Reform Party got something like 20% at the national level. They fell apart because they were a badly-thought-out party, but nobody stopped them. If they’d had their shit together, they could have displaced or reshuffled the existing majors; nothing got in their way.
Nobody’s shutting out the Greens, either. They just aren’t getting many votes in most elections.
It doesn’t, huh? So you’re saying that Ron Paul, Ralph Nader, even Ross Perot (among others) faced no unreasonable obstacles not faced by the two major parties to get their names on the ballot in all 50 states in their respective runs at the Presidency?
They weren’t free from unreasonable obstacles. They just weren’t shut out. Nobody’s saying it’s not going to be an uphill climb.
Robert,
Your initial comment is nonsense in another way not previously addressed. No one, no matter how they were organized was prevented from participating fully in politics. A shareholder of a corporation was free to participate in politics. The owner of a small business was free to participate in politics. The member of a union was free to participate in politics. the CEO of a corporation was free to participate in politics. The president of a union was free to participate in politics. The PR flack of a union or a corporation was free to participate in politics.
What wasn’t allowed to participate in politics was the corporation or the union itself. The CEO, having determined that the corporate profits would be maximized by supporting a particular politician was not allowed to order her employees to expend company resources participating in politics. The head of the union was not allowed to order union employees to expend union resources supporting a politician.
That is what has changed. Your framing of the change is flagrantly inaccurate to the point of blatant dishonesty.
As to why it is a bad thing, even for right wingers: corporations have no responsibility to serve the public good. In fact, to the extent that the public good differs from maximizing corporate profits, publicly held corporations are forbidden from serving the public good. That is why we have traditionally forbidden them from directly involving themselves in politics. While the CEO or board member or stock holder may value justice or morality or the future of humanity over the profits of a particular corporation. The CEO acting as head of the corporation is duty bound to place corporate profit before all else.
@Charles S.: Another reason it’s a terrible idea is the fact that very few companies are entirely American owned.
So to those that think this is a grand idea ensuring freedom for all: What, *exactly* is to prevent a country like China (Or Iran, for that matter) from purchasing a small corporation or the majority of stock in one and spending a few hundred million on campaign ads? Wouldn’t getting people friendly to them elected be worth it?
By this logic, If the US Govt shuts down the NYTimses, nobody’s first ammedment rights are violated since the individuals within the NYTimes can still particiapate in politics, just not thru the organizaion–indeed the corporation–we call the NYTimes.
Most people do not have the resources to participate in politcs by themselves. Hell, unusualmusic uses an organizaion called alas, a blog. Citizens United pooled their resources into an orgaization for the purpose of distributing a michael moorish like film intended to influence an election. That is a fundamental right, indeed precisely the type of speech that enjoys the highest first ammedment protection.
By not allowing the film to be aired the government violated these individuals first ammedmt rights in the same way it would if they prevented the NYTimes from editorializing.
You know, I don’t know how much of an effect this will actually have.
Do political ads actually work? How much does it cost to put on enough advertising to “buy” one vote in a Congressional election? Are there diminishing returns to political advertising in terms of dollars per vote “bought”? I suspect that political advertisements do less to influence elections than some people might hope.
Another interesting question: Does being given money make politicians successful, or do the qualities that make them successful in politics (including past successes in politics) also make them better at fundraising? Candidates with more money do win more often, but correlation doesn’t imply causation; donors with deep pockets might be more interested in backing winners than in dramatically swinging elections. According to the authors of Freakonomics, there are times when the same two candidates run against each other more than once, and, when that happens, changes in the amount of money each candidate spends don’t have much of an effect on the outcome of the election. I don’t know if I trust the Freakonomics authors to be right about this, but if they are, it would suggest that money doesn’t matter as much as one might think.
Manju, have you even read the first amendment?
The NYTimes is the Press, which is expressly protected in the text of the first amendment. In contrast, “corporations” are not mentioned in the first amendment.
Sheesh.
Amp: I read the “free press” clause as meaning we all have the right to engage in reporting and opinion making, not that a particular industry (“the press”) gets special protection.
After all, religions themselves aren’t the only ones afforded “freedom of religion”…all individuals and groups have the protection by mere virtue of practicing their religion, even if its just one guy who made up his religion this morning.
Going back to the founding, the press referred not just to by professional newsmen, but also authors, pamphleteers, leafleters, or any individual or organization engaging in those activities.
To interpret the phrase “or abridging the freedom of speech, or of the press” as meaning special protection for an elite group called “the Press” strikes me as a severe limitation (because you are restricting it to one industry) of a basic freedom. It is not a right afforded to a particular group, it is a right to engage in a particular activity….like the rest of the bill of rights.
Justice Stevens disagrees, i know. But frankly this is really disturbing and this authoritarian tendency is one reason why i still call myself a right-winger. Censoring Citizens United is unfathomable–political speech is the most protected form of speech– and his interpretation of the right to free press turns the doctrine of unalienable rights on its head…by transforming it into a form of elitism as opposed to equal protection.
So my point holds,…If you leftist censors are correct, there’s noting preventing the government from imposing limits on newspapers if they are organized as corporations, other than a dramatic redefinition of rights to mean a certain class of individuals gets special protection.
Notorious leftists like John McCain…
Supreme Court approval of restrictions on the political speech rights of corporations is a hundred years old. The new rights for corporations discovered by the daring Originalists with their contempt for stare decisis were not required to protect the New York Times from being shut down by the government. Those rights of protection for the press were well established, at the same time that the political speech rights for corporations were limited. Clearly you can not fathom how this could be so, but you can rest assured that it was so for a hundred years.
I think it’s fair to say, Charles, unusualmusic, Amp, and other critics of the decision, that at least part of your position is that free speech is a right that inheres in individuals, not in legal fictions or entities. If that’s not correct, please let me know, but I’m pretty sure it is.
The funny thing is here, that in my view, even if you are correct, the ruling is still right. Even if free speech is limited strictly to individuals, it is still such a powerful right that those individual’s free speech rights are sufficient to overturn any formal restriction on their expression. The government MAY NOT stop me from running an advertisement (without the usual superpowerful reason, like I’m publishing the a-bomb plans or something) for my candidate – and that holds whether I put the ad together myself and am using my own personal free speech right, whether I hire professionals to do it and fundraise via my activist network to pay for it, or whether I form a corporation or direct an already-existing corporation to prepare a message.
It is MY free speech right, in your view, that is supremely powerful. Very well – does not that power extend to the arrangements I choose to express my voice?
I think that it fairly clearly does. And so even if you subscribe to the theory that the free speech right is individual, I think that the power of that individual free speech right is so great that it overwhelms arguments about form of expression. Some individual makes the final choice in an organization or corporation to run a particular ad or make a particular statement; that individual’s free speech right is huge, and even though “someone else” (their employer, or their corporation, or their union) is paying for the publication, the state just cannot infringe on that expression without strongly compelling reasons.
“We don’t want the UAW/AFL/IBM/Google machine to be able to run ads for or against candidates” just doesn’t seem all that compelling a reason, particularly when all parties in the political system have broadly equal access to paid media, self-published media, the Internet, etc.
If you really believe that an individual like me has “broadly equal access to paid media” compared to, say, Microsoft, then you’re simply not connected to reality in any way at all.
Might as well argue that two people — one with a single can of beans and no money, and one that owns a fully stocked supermarket — have “broadly equal access to food.” Yes, they both have some sort of food they have access to; no, there is nothing at all like equality there.
Equal access, not equal resources. You can write a check and publish an ad. So can Microsoft. The point is that the system is open to all comers (rather than requiring you be, say, a “media corporation”), not that the system balances resources between players.
Yes, they’re much bigger than you. The UAW is much bigger than me. I don’t want to silence them in the political arena, even though they’re costing me tax dollars right now.
I’m concerned about the zeitgeist–that we’re losing the aclu left, ie the aclu of skokie days; who along with the libertarian right created a broad consensus resisting the authoritarian left and right. Now, even the ACLU tries to suppress the free speech rights of the St patricks day parade organizers, 4 liberal justices tried to suppress the free speech rights of the boy scouts, and recently a popular liberal congressman, alan grayson, attempted to jail (for 5 years) a critc…and was met with crickets from the left. it should be noted, he was using federal election laws as a pretext.
Incorrect. Before 1990, individuals had the right to engage in political speech regardless of their corporate identity. then came Austin v. Michigan Chamber of Commerce, which scotus just overturned.
No new rights were discovered. Free speech rights now apply to individuals who speak using the platform of a corporation, like Citizens United.
You don’t have contempt for dred scott?
If McCain Feingold were upheld, the govt could theoretically then censor the press, as long as the press in question were a corporation. Thje only way around that is to posit that the free press clause offers special first amendment rights to the press as an industry, as opposed to individual engaging in press activities..and that’s as problematic as interpreting the free exercise clause as only protecting organized religion, as oppossed to individuals engaging in religious practices, as I explained in some detail in #30.
Yes, the position of people who are involved in corporations in the US has, for the past 2 decades, have been directly comparable to that of slaves and of freed slaves who could be captured and re-enslaved at any time. Oh wait, I meant No, completely incomparable.
Your question disgusts me.
He is not analogizing slavery to ads for muffin tops. He is analogizing overturning a badly-decided case to overturning a badly-decided case.
Well then perhaps you should consider the role the first amendment plays in enabling liberation movements, like the civil rights one. If you haven’t noticed, King’s argument was steeped in this constitutional tradition, as he saw the solution in the very founding that institutionalized the problem— in “the magnificent words of the Constitution and the Declaration of Independence.”
Manju, do you believe that child porn should be legal? How about libel laws — are you against them? How about falsely yelling fire in a crowded theater, causing a panic — was it wrong to outlaw this? [*] How about the laws forbidding partisan campaign workers from entering an active polling place and trying to talk to voters while they’re voting? How about copyright and trademark laws which limit people’s ability to legally say whatever they want in certain ways? ETA: How about arrested protesters?
Your argument boils down to accusing people who think that the speech of corporations should be limited in some ways, of being against free speech in general. So I want to know just how much of a free speech absolutist you are. My suspicion is that there are many cases where you do, in fact, agree that there are limits on speech, and even limits on the applicability of the first amendment.
[*] I hate it when people use this cliche but leave the “falsely” out.
[*] I hate it when people use this cliche but leave the “falsely” out.
The word “falsely” was not in the original quote from Justice Holmes, I believe. Although clearly implied in it’s context.
People here are forgetting one constraint on corporations – their customers. If a corporation decides that supporting a particular idea/law/issue is of interest to them, they have to balance that against the impact that angering those among it’s potential or real customer base who oppose their position. Corporations will be cautious about this and are not likely to stick their necks out too much.
Indeed, here in Illinois there is no restriction on corporate political free speech in State elections (which were not at all affected by McCain-Feingold), yet we rarely see such ads. I suggest that in many of your own states you will see the same situation.
Charles S.:
Actually, his co-sponsoring of the McCain-Feingold act greatly angered most of the right, caused them to label him a RINO and cost him conservative support.
Yeah, it was a horrible Supreme Court decision, but the real question is,how did it happen, how did our S. Ct. get so radical. There is a reason
Dred Scott was overturned by the 14th Amendment, not by the Supreme Court, so it is completely irrelevant to a discussion of stare decisis. To bring it up is simply to analogize the wrongs of slavery to the wrong of some limits on corporate political speech in the immediate run-up to an election, which is idiotic.
It is not sufficient to point to bad supreme court decisions to nullify the principle of not nullifying prior supreme court decisions willy-nilly. You must demonstrate that the current case in which stare decisis is ignored is a wrong of the same sort as previous cases that we all agree were wrongly decided and rightly overturned. If you want to set Dred Scott as your bar, that is a high bar, but you are welcome to try.
Tell me what the actual demonstrated harms to the rights of any people were from the the existing law, and how they were not necessary to protect the critical state interest of having elections that are both free and fair and perceived as free and fair. Skip the fantasies about how any other decision here would authorize the government to close the New York Times. Where are the demonstrated unnecessary harms from McCain-Feingold that are the equal of slavery and of the complete lack of rights for anyone who was claimed to be a slave or the descendant of a slave?
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It occurs to me that both the original poster and most of the commenters here are decrying this decision based on what they think it’s effects will be. However, the Supreme Court is not supposed to rule on the desirablilty of the effects of a law; that’s the role of the legislature. It’s supposed to rule on the Constitutionality of the law. Where do you think that the majority got it wrong in evaluating McCain-Feingold with regards to it’s constitutionality?
In point of fact, the Court performs “balancing tests” — which routinely consider outcomes — all the time, including in first amendment cases.
“Manju, have you even read the first amendment?
The NYTimes is the Press, which is expressly protected in the text of the first amendment. In contrast, “corporations” are not mentioned in the first amendment.
Sheesh.”
This is entirely wrong both historically and legally. Freedom of speech and of the press are not identifying two different types of entities who get different protections. It identifys two different methods *that any citizen* can use to communicate.
It is not Freedom of speech and for *THE PRESS* [a special elite of reporters and commentators who get extra special protection].
So back to Manju’s comment:
This is entirely correct under the “corporations do not have 1st amendment rights” concept.
Sebastian,
Do you honestly think that the 4 justices who dissented on this decision, or the majority who wrote the decision this one overturned, would declare a law allowing the government to close the New York Times (or even the Washington Times)? If not, you have to accept that while you are incapable of imagining a distinction between restricting the speech rights of non-press corporations during the run-up to elections and allowing the government to shut down press organizations, there are plenty of reasonable and knowledgeable people who are somehow able to imagine a legal space between those two actions.
True, Amp. So what I’m asking here is, “What were the Constitutional issues considered by the Court and how did they adjudicate them?” We’re all complaining about what they did, but there’s no discussion of why they did it.
It does matter. The reasons given by the Court on how they have interpreted the Constitution become the basis for legislation time and time again. Plus, minority positions have in time become majority opinions. Despite the cynicism that all of us (even I on occasion) indulge in, the Constitution is (or at least should be) more than what a majority of the Court says it is.
I can see where people may not like the effect of this ruling. But while the Court does consider outcomes (and properly so – “You can’t yell fire …”, etc.) the wording of the Constitution and the intent of those who wrote it is supposed to be of primary concern to the Justices. They are not supposed to figure out what they want to do and then decide how to justify it, they’re supposed to figure out what the Constitution says first and then see how the law fits it. Tell me what was wrong about their logic regarding what the Constitution says.
ELA said:
Do you mean that the Supreme Court did a horrible job interpreting the Constitution, or that you anticipate that the decision will have a horrible effect? If at least the former (because you may think both are true) please tell me what you think they got wrong about how to apply the Constitution in this case.
Then you disagree with the Constitution which pretty well defines what the Constitution is by what a majority of the court says it is. There is no higher authority, constitutionally speaking, than the SCOTUS.
We can all disagree with rulings of SCOTUS but we cannot deny that they are the ones who determine what the Constitution is.
I understand the power of the Supreme Court, Jake. What I’m saying is that the members of the Court should honestly try to determine what it means, especially in the sense of what the people who wrote it meant, and then apply that standard to the laws they are comparing to it. As opposed to running the process in reverse, where they decide whether or not they like the law and then look to see how they can cite the Constitution – or not – to support their position.
The latter is an emotional reaction, but we ask for rationality from the Court.
I can’t imagine they would. They would try to create a distinction. But the distinction they would create–the one Justice Stevens creates in his dissent (the press has special protection)–would further restrict first amendment rights by limiting the freedoms found in the “free press” clause to an entity called the press, as opposed to all individuals who happen to be excising the freedoms protected by that clause, which is the way the bill of rights is usually read.
So supporters of McCain-FeinGold present us with 2 choices: either narrow down the protection of the free press clause, or allow the governement to regulate media corporations. Not a good choice.
Fine, we’ll go with loving v virginia overturning pace v alabama.
Amp:
The philosophical context of the bill of rights is classical liberalism, which holds that all freedoms are limited by the freedom of others, ie the right of others not to be subject to the initiation of force or fraud. Indeed, this is the very purpose of govt in a liberal regime: “That to secure these rights…” (life, liberty, and the pursuit of happiness) “…Governments are instituted among Men, deriving their just powers from the consent of the governed.”
So, a person engaging in reporting therefore doesn’t have the right to break into your house to get the story. Your property rights place a proper limit on his free press ones. That’s why national security (your free speech rights don’t give you the right too endanger another person’s life) is one of the great exceptions to the first amendment, and of course one of the great areas of abuse (alien and sedition acts, for example).
So, to go to your examples, thats why falsely yelling fire in a movie theatre is unprotected…it puts others in a clear and present and immanent danger. (you can–it should be noted–put people in danger in an abstract way…like say advocate for genocide or commuinism but without going as far as calling for immediate violent action).
Child porn is unprotected b/c its defacto assault, ie an inititionof force (children do not have agency, therefore you are violating their rights). Protesting the govt is expressly protected in the first amendment (“right of the people peaceably to assemble, and to petition the Government for a redress of grievances”) so if the govt is arresting you it has to be justifyed by your behaviour…the protests are violent, you’re trespassing, ie you are initiating force. copyright and trademark laws follow the same logic that a reporter can’t break into your house, ie your free speech rights are limited by other peoples property rights. I’ve honestly never given any thought to libel or polling places restricions so i have to punt on those.
So Manju, what are the harms that we have seen in the past two decades as a result of a few small limitations on the political speech rights of corporations that are comparable to thousands of people being forbidden from marrying the person they love? Not the harms you imagine might come, the harms that we have already seen.
RonF,
Accepted practice for the Supreme Court is to decide cases on the smallest grounds available. They should only consider constitutionality of a broad class of law if they absolutely must.
The FEC ruled that a movie on pay-per-view was much the same thing as a paid political advertisement. That ruling over-reached what the law covered, so the Court could have ruled that the FEC was wrong. If they felt that the FEC was not clearly wrong, but that banning a movie on pay-per-view was a an excessive violation of the speech rights of a corporation for the goal of protecting uncorrupted elections, then they could have ruled that to the degree that McCain-Feingold allowed the FEC to ban movies, McCain-Feingold was unconstitutional. Instead of either of those courses, which would have begun establishing precedent for expanding the speech rights of corporations, recognized stare decisis and allowed a gradual experiment, they jumped right to the largest possible ruling, ruling on subject matter that didn’t have to be decided to decide the case. This is basic activist judge over-reach, the very thing that Alito and Roberts lied to the senate about in their confirmation hearings.
I find it interesting that the opposition to this law is based on speculation, not facts. No actual examples of corporations such as Wal-Mart (to quote the example) attempting to influence legislation through political advertisements are given.
But there should be. McCain-Feingold applied only to Federal campaigns. State campaigns were unaffected. If what the opponents say about revoking this law is true then there’s no need to resort to speculation. We should be able to point to campaigns at the State level that were affected by untrammeled access to the political podium by corporations, at least in states like Illinois that have no such law.
Now I personally have not noticed any such problems here in Illinois. The corporations tend to keep their mouths shut. I have seen no ads where the media have jumped up and said “This ad against/for this issue was financed by BigAssCorporation International because it’s in their interest.” And I can’t believe they’re asleep at the wheel all the time. I speculate this is because corporations see the risk of alienating potential customers as greater than the likelihood of actually getting what they want through political ads.
That’s the great thing about Federalism. We have 50 laboratories where different versions of laws can be tested out. So rather than speculate, how about those who oppose this do their research. Tell me, what have you seen in your state? What are it’s laws, and what has been the actual result?
If MSNBC can form a corporation and hire people such as Keith Olbermann to voice his opinion on one political issue or another why can’t Citizens United?
Charles S. – I’ll have to read the decision before I can comment on your posting. I will say that it is my understanding that the Supremes generally limit their rulings to narrow grounds whenever possible. But I’m no expert on the subject.
How did this ruling violate “stare decisis”? Had there already been a ruling on McCain-Feingold?
It was impossible to decide narrowly, apparently. I don’t know why but I believe Scalia’s concurrence explains in debt. This seems accurate because, if you notice, the 4 dissenters also ruled broadly.
In other words, the 4 liberals could’ve ruled narrowly in favor of citizens united, but still kept the gist of Mccain Feingold. apparently though, this was impossible. one of the disconcerting things about this case is that citizens united isn’t exxon mobile, ie this is not an example of a corporation engaging in electioneering in order to subvert democracy by buying off a politician for their own profit motive (lets say they wanted subsidies or something). None of the raison d’etere (ie the alleged vcompeelleing governemttal interest) for such exptrodinary limiting of speech was apparent in this case.
CU may not be the NYTimes but they are like Michale Moore: an unhinged partisan simply crapping up the public discourse. but in our regime such individuals enjoy equal protection to the NYTimes. yet 4 justices said no, either because they thought groups like CU should have lower protection (which would be really disturbing) or b/c there was no was to protect them, ie rule narrowly, without throwing out McCain-Feingold…which they didn’t want to do.
I don’t know why you think it has to be comparable. SCOTUS has overturned many decisions before that were not comparable to loving, though its unclear to me why the harm done to citizens united is less than the harm done to the Lovings. after all, the Lovings could move to another state and get married, while CU’s speech was barred nationwide.
anyway, since we were talking about fire in a movie theatre, Brandenburg v. Ohio overturned Whitney v. California, and by adding the condition “likely to incite imminent lawless action” to oliver wendell hlomes “clear and present danger” test it effectively overturned Schenck v. United States, the case where the phrase “fire in a move theatre” first appeared (Holmes had actually upheld the govt’s restriction of free speech in that case).
In all these case the govt had a compelling state interest of public safety and national defense, yet scotus ruled against them despite 2 cases of stare decisis and despite the defendants being worthless extemists like CU (ie, CU is not the NYTimes argument), as they were Klansman, communists, and socialists respectively.
Dissents don’t rule, so there is no expectation that dissents will be any narrower than the grounds on which the dissenters disagree with the ruling. A dissent may dissent specifically on the point that a ruling is overly broad, but unless the only point of disagreement is that it is overly broad, it makes no sense for the dissenters to not explain all of why the disagree with the ruling.
I guess I think of money like volume.
Everyone has the right to free speech, but that doesn’t mean that I have the right to stand in the middle of Main Street with a megaphone screaming my political views at the people around me.
Louder volume ought not equal more speech.
Similarly, more money can be used to repeat a message with such frequency that it drowns out the opposition, or to donate so much money to a politician that they feel they need to support your position. That doesn’t seem like free speech to me either.
Free speech ≠ the right to dominate the arena of debate with your resources, whether they’re physical (shouting, screaming) or financial (dollars, cents).
—Myca
You’re missing the point. If what you are saying…
…is true, then that is what the 4 dissenters would have done. They would have concurred (vindicated CU) but concur narrowly, ie refuse to overturn the precedents and maintain limitations for some corporations, but not CU.
But yet they didn’t. They chose instead to try to use the power of the state to suppress CU. Clearly it therefore was logically impossible to protect CU while simultaneously maintaining the precedents and maintaining restrictions on other corporations. Ergo, the broad ruling (and broad dissent).
In contrast, Justice Thomas joined the opinion but dissented on the disclosure issue (he thinks requiring disclosure is also unconstitutional).