A Modest Proposal to Abolish Freedom of the Press

Eugene Volokh at the Volokah Conspiracy alerts us to a bit of noxious numbskullery in Congress. Reps. Theodore Deutch, Peter DeFazo, Alcee Hastings, and Jim McDermott, have proposed an amendment to the Constitution denying constitutional rights to for-profit corporations. Bernie Sanders has proposed something similar in the Senate. Here is the text:

`Section 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.

`Section 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.

`Section 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.

`Section 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate's own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.'.

It would be charitable to assume that the authors of this amendment intended only to make a point rather than a serious proposal; otherwise, one would have to suspect both stupidity and perverse intentions. Consider the first part of section one:

The rights protected by the Constitution of the United States are the rights of natural persons…

Read by itself, that would mean that only individual human beings (natural persons) have constitutional rights. The courts would then have to decide whether non-natural but not-for-profit corporations like American Postal Workers Union or the Sierra Club have any rights under the constitution, including freedoms of speech or of the press. Could Congress prohibit the ACLU from expressing its opposition to anti-abortion legislation under this brave, new Constitution? It certainly could, if natural persons alone have constitutional rights.

The courts might well conclude that the rest of section limits the restriction of constitutional rights to natural persons and denies these rights only to for-profit corporations. But as Volokh points out, almost all newspapers, television and radio stations, and other media venues are owned by corporations that are in business for profit. An unsigned editorial published in the New York Times represents the opinion of a for-profit corporate person. Section 1 would strip such an expression of any and all constitutional protections.

Section 2 tries to avoid the above complications with the proviso:

so long as such regulations… do not limit the freedom of the press.

That would be meaningless, however, since under section 1 the New York Times would not enjoy any constitutional freedom of the press. No regulations could run afoul of section 2 since it would be impossible to limit freedoms the Times does not have.

Sections 1 and 2 seem designed to give Congress control over the speech of business corporations while exempting Unions and public interest groups. As I have shown, these sections fail even at that. Unions are not natural persons. That is a small point, however, since these sections would effectively neuter the freedom of the press.

Sections 3 and 4 are designed to give Congress control over all spending on elections. No doubt 535 incumbents would use that power fairly. This is noxious numbskullery of the highest order. One can only thank God and James Madison that the Constitution is very difficult to amend.

Comments

[caheidelberger]

Interesting. Can we thread this needle? Can we separate the rights of natural persons from the rights of corporations? Do we need to?

[larry kurtz]

Volokh defends sexual harassment as a right of free expression. Why would he bite the hands that feed him?

[Ken Blanchard]

Cory: I don't know anyone who thinks that corporate persons have exactly the same set of rights as natural persons. Corporations cannot be thrown into jail; only natural persons can. Corporations can be subject to regulation that chills their freedom of the press, according to the Court. That kind of distinction seems easy enough to make.

Kurtz: I know I am going to regret this, but can you give us at least some idea of what you are talking about? Assuming you have some idea.

[Bill Fleming]

Interesting topic. I know someone who thinks corps and people have the same rights and has argued it extensively with some of us on RCJ's Mt. Blogmore site. (I'll find the link if you want it, KB.)

Rather than debating whether or not a corporation is a "natural" person, our argument centered on whether a corporation had natural, inalienable rights. These rights, of course predicate the protection (and/or limitation and abridgment) of them by law. My contention is that since a corporation is a legal abstraction of a "person" it is granted only such rights as the law allows when it comes into being. Our opponent maintains that because the corporation is owned by real "natural" people, it retains some (but not all) of those person's natural, inalienable rights.

I am right, and he is wrong, of course, but it seems I have yet to convince of it. ;^)

p.s. pretty sure the guy we're debating on this is a lobbyist.

[Donald Pay]

I fully support this amendment, as it is consistent with the intent of the founders. An activist court has carved out special rights for corporations that were never intended by the Constitution or by the authors of the amendments. This amendment puts would put power back into the hands of people as intended by the founders.

[Ken Blanchard]

Donald: of course you do! The Hell with Freedom of the Press.

Bill: your view is flatly inconsistent with centuries of settled law. Contrary to Donald's ignorance of the founding, constitutional rights for corporate bodies was there from the gitgo.

[Donald Pay]

On the contrary, corporate personhood is a fiction, so this entity cannot have the rights of a natural person. Corporate speech cannot ever be equated with speech because a corporation is comprised of several or many natural persons, some of whom or many of whom are usually at odds in what should be said or what should be printed.

[Ken Blanchard]

So you agree, Donald, that Congress can prohibit the New York Times from publishing editorials or endorsing candidates? Leftist used to believe in freedom of speech and the press. Not anymore, apparently.

You have no idea what you are talking about. Corporate personhood is no more nor less a fiction than money. Do you believe that Exxon cannot be sued? How could one sue a corporation if it does not exist?

[Bill Fleming]

You miss the point, Ken. Unlike a real person, the corporation and its rights exist only because the law says it does.

[Donald Pay]

Corporations are not mentioned anywhere in the constitution. All references in the constitution refer to natural persons. The rights guaranteed in the constitution do not apply to corporations. I don't know how you can get around the words of the constitution, KB, but you conservatives will always try to find an activist judge who is a slave to the corporate elite.

[Donald Pay]

Corporations at the time of the writing of the Constitution required an act of a state legislature to exist, and there were not many of them around then. Corporate structure was completely determined by the people through their elected representatives, and could be ended by those elected representatives. It wasn't until well into the 19th century that modern business incorporation came into being. Certainly the founders never envisioned giving special rights to the modern corporation.

[Jon S.]

Donald, the idea of the corporate persons is in Blackstone. The idea is seconded by the Supreme Court in the 1819 Dartmouth case, which found John Marshall and Joseph Story in the majority. I would like for you to point to any evidence that the founders did not believe that when people associate for financial purposes that they no longer have political freedom by right. Indeed, we can see in Madison's famous note on property that the right to physical property, "a man's land, or merchandize, or money", is directly tied to his "property in his opinions and the free communication of them." In addition to the problematic wording of this amendment (which Volokh blogged on again today, btw) one cannot help but think that the motivation for such an amendment lies in the desire of some to silence those with whom they disagree. I find it surprising that people who call themselves "liberal" support what would be the first amendment to actually constrict political participation.

[DDCSD]

A corporation is nothing more than a group of people that associate with a common goal. The ACLU is a corporation. The DNC is a corporation. The Corporation for Public Broadcasting is a......... you guessed it.... corporation.

The Bill of Rights doesn't include a disclaimer that states that all rights are forfeited upon assembling as a group.

Yeah, let's give Congress the power to regulate anything and everything they want as long as they are doing it to groups of people. I mean, what could possibly go wrong? Don't want that mosque in your town? Don't worry, it's a group of people that want to build it and we can stop them. Don't like the ACLU suing over abortion laws? We can shut them up too. Remember, groups of people only have whatever rights we say they have, and we can change our minds on what rights those are at any time!

Just remember, your guy won't be in power forever. There's a very real chance that someone like Perry, Gingrich, Cheney or Bush will be President again some day with a Republican-controlled Congress and I really don't think you want to erase Constitutional protections for groups of people with them in power.

Do you?

[Donald Pay]

A corporation operated and under ultimate control of the government, which corporations were at the time of the writing of the Constitution, is a completely different animal than modern business incorporation. What the founders had in mind as they were writing the Constitution and Bill of Rights were corporate entities that were ultimately government creatures whose natural person directors, stockholders and employees had freedoms guaranteed by the Constitution, but not the government created corporate entity itself.

[larry kurtz]

Official site: http://movetoamend.org/OccupyTheCourts

[Ken Blanchard]

Donald: again, you have no idea what you are talking about. The Dartmouth case involves a charter to a corporation, in this case Dartmouth College. It turned on an interpretation of the contract clause. While the extent of that clause has been a point of contention over the years, no one on the court or among the Founding Fathers ever doubted that private corporations enjoyed rights under that clause. That is settled law.

Corporate bodies appear as parties to cases from very early on. If a corporation is a party to a case, then it has such rights as all parties do. This is simple logic.

[Bill Fleming]

orate bodies appear as parties to cases from very early on. If a corporation is a party to a case, then it has such rights as all parties do. No, not all of them, KB. Only those allowed by the articles of incorporation (i.e. statute). A corporation is an abstract legal concept, not a natural person. Of course, I understand the confusion given other GOP attempts to define personhood lately.

[Donald Pay]

As you say, KB, the Dartmouth case turned on contracting. How you expand that to birthing an a bunch of paper and claiming it's human with rights that supercede those of real humans is beyond me.

[Jon S.]

Donald and Bill,

Are you under the impression that corporations are created by lizards? Or dogs? Or rocks? Or are they created by...persons? I don't see how corporations get rights that supercede those of "real humans" as they are made up of real humans. Humans have a right to engage in free political speech. They do not lose those rights when they associate with one another.

Bill, surely groups of people are not governed the exact same way individuals are. But why do groups lose fundamental political rights when they associate for financial purposes? Do you think the right to engage in political speech is fundamental, or do you think it is something that can be taken away when the "public interest" requires it?

Go back to the Citizens United case. There the government lawyer was forced to admit that under BCRA if a political book advocating the election or defeat of a candidate was released right before an election, the government, in his opinion, had the power to ban that book because it was published by a corporation and constituted "election activity" by naming a federal candidate. Is this really the kind of regime we want to live under?

I do not doubt that those who favor this amendment have good motivations, and no one gets popular by defending EVIL! corporations. But I continue to believe that the answer to political speech we dislike is more speech, not restricting the speech of those whom we disfavor.

[Donald Pay]

Jon S.,

It doesn't matter what you or I think, it's what the founders thought on the subject that ought to matter to supposed conservatives. The founders were very leery of corporate enterprises, and refused to extend many rights to corporate entities. The Boston Tea Party after all, was a direct action against corporate mercantilism, and the founders hated that concentrated power. What we see in this thread is conservatives want to ignore and twist the founders' understanding to make it fit their slavery to the modern corporate hegemons. It's pretty disgusting hypocrisy.

[tedp]

John S.

You hit the nail on the head, except for the part about those who favor this having good intentions. Democrats want to restrict the speech of those whom they disfavor, namely for-profit corporations, who are more inclined to support Republican candidates. The exemption of non-profit entities (read labor unions) keeps the union money flowing to Democrats.

So Donald and Bill, if we accept the premise that corporate speech can be regulated, what is the rationale for giving non-profits a pass?

[Jimi]

Donald,

Direct contributions by corporations to candidates are still prohibited. The only difference that has been made by Citizens United vs FEC is that now a PAC is not required for corporations to run their own commercials, considering those commercials stay within the regulations of the SEC, and they can now been shown within 60 days of a general election, and within 30 days of a Primary.

This does not change much because the PAC of the past still let corporations have a hand in campaigns. The only difference now is that the corporations treasury officer is now free to use the corporations own money to particpate.

The arguement from the left is a red-herring, because now unions have the same power as corporations. In the past Unions had a clear advantage because of the source pool for the PAC's, and the left loved it that way, because it was easier for them to generate money much quicker. The left hates the fact that the playing field is beginning to be leveled, because now in the future, they will actually have to debate and publically respond about their ideological agendas that attack the Free Market system, and corporations can defend themselves by pointing out to the public why certain candidates or legislations are not in the best interst of corporations, and why the job market is affected.

[larry kurtz]

LA moves to amend: http://www.huffingtonpost.com/2011/12/05/move-to-amend-la_n_1129725.html

Beware, earth haters.

[Ken Blanchard]

Bill: I think that you argued that personhood is only what the state recognizes. At any rate, the right to contract was enjoyed by corporations before, during, and after the founding era. You may wish it otherwise, and if you want to try to amend the constitution to take away the New York Times's freedom of the press, go ahead and give it a try.

[Jon S.]

Donald,

You'll want to get your story straight. Either the modern corporation did not exist at the time of the founding, or it did and the founders didn't like them. You've made both arguments.

Truth is, some founders disliked some large economic entities like banks (Jefferson) and some liked them (Hamilton). But there is no evidence that they believed that the political rights of those entities should be curtailed. Madison's solution to the problem of economic faction was not restricting the rights of people who organize (indeed, all the evidence from the conclusion of Fed #51 is otherwise), but the multiply economic interests so no one interest could dominate. You'll note that Madison takes it for granted that there is a "landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests..." I don't see where he says the mercantile interest or the manufacturing or money interests should be denied basic rights. In fact, the argument is for the multiplication of said interests. You can huff and puff all you want with your obtuse arguments about "slavery," but that is the fact.

[Jimi]

Larry,

The "Reality Haters" like you, don't seem to understand that amending the constitution will not happend on a "just the corporation" basis. The decision will affect the behavior of the unions as well, and if you shut down the free speech of corporations, then you are going to shut down the free speech of unions as well.

Now if the "Reality Haters" like you, want to hamper all free speech that's fine. I will take my chances not having Corporations or Unions in the game, but surely you brilliant thinkers have realized that any attack on free speech on any front only opens the door that much more on hampering the free speech of the citizenery. But.....you probably don't care about things like that, being a devout Reality Hater and all?

And let's be clear......The First Amendment's objective is to protect speech that offends and embarrasses the majority by the minority, and not to promote speech that the majority has deemed worthy.

[Donald Pay]

My statements may seem inconsistent to someone who is ignorant of economic history. Better do a little research.

[Bill Fleming]

Let's be clear.

I'm not saying corporations don't have rights.

I'm saying they don't have natural rights, because they don't.

They have the rights the laws give them.

This is not the case with real people. People have a priori rights and the Constitution and the laws (supposedly) secure and protect them.

[Ken Blanchard]

Bill: I happen to agree with that last comment except in so far as corporate rights are derivative from natural rights. A church, for example may have a right to incorporate and the corporation to own property, a right that would be derivable from the right to free exercise of religion.

[Ken Blanchard]

Donald: the Boston Tea Party was an act against the use of the tax power against the British Parliament, not against Lipton. Again, you have no idea what you are talking about.

[Donald Pay]

Wrong, KB. At the time of the founding of this nation a church would not have the right to incorporate. A church could form, but as far formal incorporation was concerned, that could happen only with the expressed action and approval of the state or federal government. Since the first amendment precluded government involvement in religion, a religious institution would not have been able to incorporate. That also goes for the press, KB. You guys really need to get up to speed on business governance and its history.

[Donald Pay]

KB, you really need to bone up on history. A more complete understanding would be this: the Boston Tea Party was an action of protest against an act by Parliament that imposed a tax on goods not carried by the Crown's favored business corporation without having representation in Parliament by the colonists taxed. There were a slug of reasons why colonists saw this as a problem, but the hated corporation and it's monopolistic practices were certainly a major precipitating cause for the Tea Party. The truth is the Founders and early state and federal officials viewed the corporate structure of the time in negative terms, and approved them mainly for educational institutions and for large public works projects, where the public good, not profit, was the primary goal.

[Jon S.]

Donald, you cannot just make assertions. Please provide evidence. I have drawn from Madison, for example. Can you cite any document that backs up your interpretation of the founding?

You also have the status of churches wrong. The federal government had no power over churches, under the Articles because the national government was too weak and under the Constitution because the First Amendment forbids it. Various states had different laws regarding religion, but I am unaware of one that would not let a church incorporate. Some states, such as Pennsylvania, Massachusettes and South Carolina had laws establishing certain churches, but that was only to obtain a particular financial benefit, not about the right to incorporate and gain other rights and privileges. I am unaware of a state that would not allow a church to incorporate. I might be wrong. Perhaps Donald can cite a state constitution. I am familliar with the religious laws of some of the original states but not all.

[Donald Pay]

Jon S.,

Huh? My point about the churches is exactly what you state. You seem to be under a false understanding of what a corporation was at the time of the writing of the Constitution. You seem to be arguing wrongly because you think corporations back then could come into existence in the same way as they do today. They had to come into existence through an act of government, and by that I mean a statute. You are really, truly ignorant on this, and you need to do some research on the history of the corporation. This is just basic stuff, and if you don't know it, pick up a textbook.

[Dave]

Don Speaks the TRUTH!