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Corporations and Free Speech

September 24, 2009, 9:32 am

Here is my very simplistic take.  You will have to pardon me for referencing the actual text of the Constitution -- I know this is passe in our modern era (jeez, I am probably a tenther too).  The issue looks pretty straight-forward to me, for two reasons

  • Congress shall make no law ... abridging the freedom of speech.  Doesn't say by whom or for what.  There are no modifiers.  Doesn't say "except when individuals organize themselves into a corporation."
  • Congress shall make no law ... abridging ...the right of the people peaceably to assemble.  So Congress can make no law restricting free speech and it can make no law restricting assembly but somehow it can make laws restricting free speech of people who have assembled?
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Category: Individual Rights
  • Michael

    The supreme court set some great precedents:

    Any product made on private property, never sold and never crossed state lines can be regulated under the Interstate Commerce Clause.

    Government can take private property if the taking could possibly net government more tax revenue.

    Friends of politicians can extort money from private land owners under the threat of losing their land to eminent domain.

    If you follow Mark Perry or Radley Balko you get the impression that our government thinks the Constitution is a piece of art work in a museum.

  • http://franklinsvirtues.blogspot.com silvermine

    You are *so* old fashioned! ;) They haven't honored either one of those in quite a very long time.

  • Dave

    The disconnect between big-L Liberals and little-L liberals on economic issues comes down to the fact that big-L's don't see corporations as a voluntary organization of individuals. Once people assemble to do business they are something foreign, hostile, and without rights.

  • http://evilredscandi.blogspot.com Evil Red Scandi

    Oh please, they're not abridging it. Don't be so dramatic.

    They're eliminating it. It's time to take up @!#sdg3q

    NO CARRIER

  • James

    Well, unfortunately, the 1st Amendment was never interpreted so broadly. At its adoption, free speech didn't include libel, slander, threats of immediate violence, or commercial speech. Commercial speech was a huge sticking point for con law throughout the 19th and 20th centuries.

    The SCOTUS has certainly gotten more liberal with regards to freedom in commercial speech (ie striking down bans on pharmacy advertisements), but I don't think you have any sort of Originalist grounding here to make your point. I absolutely think you have a logical point, but pointing to the Constitution in this regard doesn't really aid your point.

  • http://zoominac.com Matt

    This brings to mind all the accusations that people at the Tea Party Protests and town halls are "astroturfers" or somehow otherwise illegitimate actors in political dissent, under the influence and dole of insurance companies. While I don't think the accusation is true, all I can think is that it really doesn't matter. Believe it or not, insurance companies have the right to address grievences with the government.

    Rosa Parks was not some unwitting actor in the civil rights drama - she was involved with the NAACP and an active advocate of civil rights. The fact that she was not only conciously involved in politics AND working in an organization advocating a certain policy did not discredit her position on the issue. She is rightly remembered for saying "No" to an unjust practice, not as an astroturfer. So why the double standard when it comes to contemporary corporate political speech?

  • ArtD0dger

    Well, if assembled people in corporations don't get free speech, then assembled people in NGOs shouldn't either. Goodbye, Moveon.org, ACORN, et al.!

  • nom de guerre

    as michael points out, "the government thinks the constitution (belongs) in a museum".

    well, of course they do. the constitution is essentially a contract between we the people and the entity that became the federal government. what class of people become (almost all of) the legislators and representatives of that government? lawyers, of course. as i understand it, a great deal of the education of lawyers is dedicated to the study of contracts: how to find loopholes, how to ignore the terms while still not technically being in breach, how to render the instrument null and void in ways that will most benefit themselves and/or their clients. so the lawyers got themselves elected, and then they got busy making a better world for lawyers, and for those rich enough to buy their services.

    after 200+ years, that's exactly what's happened. the government we have today is nothing at all like the government the constitution authorized - among other things, it has unlimited power. pretty sure that wasn't the goal in 1789.

    there's an old proverb out there. something to the effect that 'laws are like spider webs. they arrest and trap the weak and powerless, but pose no hinderance at all to creatures large and strong enough to bull their way through them.' coincidentally, in other news, i note that the DOJ is declining to prosecute the vote-intimidating-on-tape black panthers in philly, and lon horiuchi is still walking around a free man. the king and his men do what they will. their business is none of our affair: it's classified. *our* job is to shut up, follow the cop's lawful order instantly or be tased/pepper sprayed/arrested and lied about at trial/shot, and pay our taxes as ordered. they WILL, however, allow us to debate minutiae of the ratty old yellowed paper relics on display at the national archives, just as if such things still mattered. the contract has been voided. the contract is moot. but the contract *does* provide fine camouflage for our masters, and keeps us proles occupied.

    anyway, our lives are MUCH better than medieval serfs. sure, they only paid 20% in taxes to their liege lords, but we have color tv! and wrassling! and porn! and FOOTball, baby!!! are ya ready for some hard-hitting NFL FOOTBALL?!?!?!?? all i need now is to hit the lottery, and i'm set for life. party on, dudes!

  • Stan

    Your mistake is your lack of nuance my friend. Of course it seems so simple, which is why the left doesn't buy it (and shamefully, some on the right too).

  • http://theunbrokenwindow.com wintercow20

    Maybe you can have Senator Franken read those passages to his colleagues?

  • http://www.babytrollblog.com Mark Alger

    @James:

    The government interpreting the reasonability of provisions of a charter limiting its powers.

    How whack is that?

    I think even the con law folk agree that case law cannot trump the clear text of the Constitution. And, as Warren says, it says right here: "Congress shall make no law..."

    Which essentially means that precedent and stare decesis have about the effect that We the People are willing to let them have.

    But, of course, if we just sit back and accept that "SCOTUS says..." then, we've let them have it, haven't we?

    M

  • James

    @ Mark Alger

    You could argue that case law cannot trump the clear text of the Constitution, but it's clear that the first amendment isn't as straightforward as Warren is making it out to be. For instance, nobody would seriously argue that libel or slander is protected speech. Congress has obviously made laws abridging this sort of speech, and such laws existed at common law, before any Constitution was ever adopted, before the framers were even born. Are such laws thus unconstitutional? Looking at the plain text, it would certainly appear so, but it's plainly obvious that the framers did not seek to protect such speech.

    With this in mind, the argument becomes much cloudier. Looking at the history of the U.S., commercial speech has only recently been afforded similar protections that private speech has always enjoyed. If anything, the Court has become more willing to acknowledge that corporations are merely groups of individuals.

  • Gil

    "At its adoption, free speech didn’t include libel, slander, threats of immediate violence, or commercial speech." - James

    That isn't contradictory. You are free to speak but you are not from from the consequences that your speech causes. It's akin to a radio announcer who says something offensive on air, the radio station gets a heap of complaints especially from their sponsors and the radio announcer gets fired. Or, the right to purcahas and own a gun doesn't give you the right to shoot people willy-nilly.

  • http://www.ilovebenefits.wordpress.com ilovebenefits

    Supreme Court Justice Black in a landmark Free Speech case said, "No law means no law." Seems pretty clear to me. http://www.ilovebenefits.wordpress.com

  • Noumenon

    Gil, it would be more akin to your radio announcer saying something on the air, the radio station gets a heap of complaints from the President and the radio announcer gets fired. It makes a big difference whether it's the government enforcing the consequences of your speech or just individuals.

    A corporation might fit the technical definition of an "assembly," as a school might, but neither of them is going to use a free speech right to express any views except those of the guys at the top. The principal gets the speech, not the students, the executive gets the speech, not the employees. I don't see any gain for democracy there. Let the students and the principal each speak for themselves and the school's free speech right will be covered.

  • James

    Gil:

    I'm afraid you've missed the point. At the country's inception, there were many laws on the books restricting freedom of speech, and the framers had no doubt that they were Constitutional. Libel, Slander, publication of troop movements, fighting words and commercial speech are all examples of speech that the drafters of our Constitution never viewed as "free speech" and never intended to protect under the First Amendment. Over the last 200 years the court has grown far more liberal; libel against public figures now requires thoughtful malice (U.S. v. Sullivan), the fighting words doctrine is essentially dead, commercial speech enjoys most of the protections given to private speech, etc.

  • Pandora

    James:

    The Constitution says what it says:

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

    Doesn’t say by whom or for what. There are no modifiers. Doesn’t say “except when individuals organize themselves into a corporation.”

    ...or except commercial speech.

    Laws against slander, libel, etc. are then, necessarily, not the purview of Feds ala Congress, but the States.

  • markm

    Dave:

    The disconnect between big-L Liberals and little-L liberals on economic issues comes down to the fact that big-L’s don’t see corporations as a voluntary organization of individuals. Once people assemble to do business they are something foreign, hostile, and without rights.

    No, the liberals are hostile to all businessmen, and often pass laws that especially disadvantage small businesses.