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Speech, Not Speakers

March 16th, 2010 · 8 Comments

I wrote a few posts in the aftermath of Citizens United arguing that the backlash to it had a misplaced focus on whether the court had decided that “corporations are persons” with constitutional rights.   I did think that, in practice, there are many constitutional purposes for which it would be necessary to treat them as persons if you wanted to meaningfully safeguard the rights of actual persons—but I also argued that it was just a red herring in this case. I don’t know that anyone was convinced who didn’t already agree, but maybe it’ll help if Lawrence Lessig says the same thing:

There has been a growing fury about the Supreme Court’s decision in the Citizens United case, but much of that fury hangs upon an odd reading of the Court’s opinion. The Court, it is said, has given corporations all the rights of “persons.” It has elevated these artificial beings into entities “endowed by their Creator” (us) “with certain unalienable rights,” including the right to free speech.

No doubt the Court has a long history of recognizing the “person” in “Inc.” But this current wave of criticism is hard to understand, because the Court’s entire Citizens United opinion hung upon the fact that the First Amendment says nothing about who or what is to get the benefit of its protection. It simply bans certain kinds of regulation. As Justice Scalia put it in his concurrence: “The Amendment is written in terms of ‘speech,’ not speakers.” Thus, the government is blocked by the First Amendment from constraining the free speech of any entity, whether that entity is a corporation or a dolphin.

Lessig’s answer is a constitutional amendment permitted limited regulation of speech (or rather, expenditures on speech) by non-citizens.  I feel relatively confident that this one is a non-starter, since constitutional amendments are damn hard to pass anyway, and there are chunks of the necessary coalition that I expect would balk at cementing such a distinction in law.

Tags: Law



8 responses so far ↓

  • 1 Jess Austin // Mar 16, 2010 at 10:44 pm

    Good grief, Lessig is lost in the weeds. Rather than talking his more strident supporters down from the ledge, “we don’t like this, but we’re concentrating on things we can actually change”, he offers… a constitutional amendment.

    It’s frustrating, because Lessig is one of the good guys. In light of his latest efforts and the whole Eldred fiasco, I kind of wish we had a *better* good guy.

  • 2 Ben // Mar 17, 2010 at 12:07 am

    Can someone point me to a well thought out objection to foreigners trying to influence American elections? I am pretty sure that the restrictions on foreigners running for office and against titles were to prevent the rise of a Tory party that would elect the King of England to the Presidency and then crown him “King of America.”

    And the Chinese are not going to get somebody elected on a “give Alaska to China” platform or anything.

    In any event, so long as the U.S. has a foreign policy, I don’t see any issue with foreigners trying to influence the government, through elections or otherwise. Can anyone see an injustice with the Organization of Wedding Planners of the NWFP, Inc. running an ad campaign entitled “Please Vote For The Guy Who Will Not Bomb Us”?

  • 3 Neel Krishnaswami // Mar 17, 2010 at 4:57 pm

    I was relieved when Lessig decided he was going to switch from free culture to fighting corruption. He own goals everything he does via baroque complexity — he’s like a textbook example of professional deformation.

    For example, when he started the Creative Commons, he managed to come up with a collection of licenses that were so complicated they were incompatible with each other. That is, he managed to come up with a set of licenses that make it harder to remix, even though that was his explicit goal. He did this even though it was against the specific advice of the Free Software Foundation — i.e., a group of people who had a quarter-century of prior experience in the matter.

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  • 5 Anna // Mar 20, 2010 at 4:07 pm

    The practical upshot of the Supreme Court’s interpretation is that some people have more power to assert their viewpoint, by virtue of their association with an organization. Those happy few get to spend their own money, then they also get to spend the organization’s money. The only way to get around that conclusion is to assert that the corporation itself is an entity deserving of First Amendment rights, as though a corporation could somehow make its own decisions. A corporation is an organization made of people, and all those people already have freedom of speech. Their organization doesn’t need to have it, too.

    I believe that corporations need to be treated as people for some purposes (forming contracts, for instance). But it also seems obvious that those cases should be strictly limited. In this case, while Scalia’s interpretation isn’t “wrong” per se, it’s also not strictly necessary to give corporations this power. SCOTUS would have been just as correct in their interpretation had they gone the other way, so that’s what they should have done.

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  • 7 エドハーディー // Jan 20, 2012 at 3:32 am

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  • 8 Waseem // Nov 19, 2015 at 4:02 pm

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