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Paul Levinson

Paul Levinson
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March 25
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Professor
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Bio
Paul Levinson's The Silk Code won the 2000 Locus Award for Best First Novel. He has since published Borrowed Tides (2001), The Consciousness Plague (2002), The Pixel Eye (2003), and The Plot To Save Socrates (2006). His science fiction and mystery short stories have been nominated for Nebula, Hugo, Edgar, and Sturgeon Awards. His eight nonfiction books, including The Soft Edge (1997), Digital McLuhan (1999), Realspace (2003), and Cellphone (2004), have been the subject of major articles in the New York Times, Wired, the Christian Science Monitor, and have been translated into ten languages. New New Media, exploring how Twitter, Facebook, YouTube, and blogging have changed our lives, was published in September 2009. Paul Levinson appears on "The O'Reilly Factor" (Fox News), "The CBS Evening News," the “NewsHour with Jim Lehrer” (PBS), “Nightline” (ABC), and numerous national and international TV and radio programs. He reviews the best of television in his InfiniteRegress.tv blog. Paul Levinson is Professor of Communication & Media Studies at Fordham University in New York City

Editor’s Pick
JANUARY 24, 2010 2:54PM

Why Supreme Court Corporate Spending Decision is Correct

Rate: 20 Flag

Good for the US Supreme Court for overturning the 20-year ban on direct corporate spending on elections.  Last time I checked, the First Amendment - "Congress shall make no law ... abridging the freedom of speech, or of the press" - contained no language excluding corporations from its protections.

Justice Sonia Sotomayor, no great champion of the First Amendment, predictably voted with the minority - that is, to uphold the ban.  President Obama, apparently also no great friend of freedom of speech, said the decision gives a "green light" to special interests.   Predictably, Keith Olbermann just finished ranting about the decision.  Fortunately his guest, constitutional law professor Jonathan Turley, tried to set Olbermann straight.

Contrary to Senator Schumer of New York, the decision has "not just predetermined the winners of next November's elections."   The decision is not political.  It favors neither party.  It favors freedom.  (I'm a lifelong Democrat, who voted for Obama.)

Justice Stevens, who wrote the minority, dissenting opinion, thinks the First Amendment was not intended to apply to corporations, which  "are not human beings. They can't vote and can't run for office."  But  by that reasoning, The New York Times and The Washington Post would have been entitled to no First Amendment protection when Richard Nixon tried to prevent them from publishing the Pentagon Papers.

It's hard, I know, to support the right of people or organizations to speak and write and buy ads when you utterly and vehemently disagree with their positions.  But that is precisely what the First Amendment was designed to support and protect.   Because it protects the expression not just of opinions you may detest, but your own most cherished opinions, when others may find them detestable.

More commentary on this on my Infinite Regress blog, where the above was first posted January 21, 2009...

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I couldn't disagree with you more profoundly. I'm working on a post on this, but it's complicated and I am not yet ready. I just wanted to distance myself from your conclusions. But I appreciate your writing the article because it has some misconceptions in it I want to make a note to write something about.
I'm all for it as long as the ads are properly labeled, "Senator so and so brought to you by Ford". That way I know who is being bought and can work against them.
"But by that reasoning, The New York Times and The Washington Post would have been entitled to no First Amendment protection when Richard Nixon tried to prevent them from publishing the Pentagon Papers."

Au contraire! The New York Times and The Washington Post publishes the opinions of actual people, who deserve to have their freedoms protected. A corporation is not the voice of a person and should not be granted freedoms.
The problem with this ruling is that it is based on the erroneous and absurd idea that corporations are persons; they simply are not. Individuals are entitled to the protections of the First Amendment, not legal constructs based on a piece of paper, which is what a corporation is.

So the problems with this issue go much deeper than just this single ruling.

When corporations OWN the majority of media access and, therefore also exposure, for ideas, the problems become clear. Individuals are entitled to the protections of the First Amendment, not legal constructs based on a piece of paper, which is what a corporation is.

The de facto result of this ruling is actually a cancellation of some free speech of the individual due to the unfair access and control of that speech by corporations.
Kent - obviously, I can't respond when you don't provide any content. When you're ready to put your disagreements in a comment here, I'll be happy to reply.
"It's hard, I know, to support the right of people or organizations to speak and write and buy ads when you utterly and vehemently disagree with their positions."

It's not a question of disagreeing with their positions. It's a question of this ruling allowing corporations yet more leeway to influence elections with amounts of money which will distort the entire process even more than it already is. This isn't about free speech; it's about legalized corruption, and that's what the fiction that corporations are "persons" promotes.
If we accept this decision on its merits--and my understanding is that the Court affirmed the status of corporations as "individuals"--then it stands to reason that corporations may spend no more as a corporate entity than any one individual. I can live with that and concur with that. If, however, it means that corporations are now entirely at liberty to deluge money onto any and all candidates and in support of any issue then I've got a bigger problem with it than I had before.
Nearly as I can see...everybody is always for freedom of speech...until something is said that goes against the grain...

...and then the rationalizations start.

In any case, the sky is not falling as some would have us accept!
Based on this, freedom of everything we hold sacred, is a veritable double edged sword. Damned if we do: damned if we don't. Kinda feels that we these days.
This business of people complaining that corporations are not people misses the point that corporations are groups of people just as a church is a group of people and a political party is a group of people.

I will read whatever Kent Pitman eventually writes but I suspect that if it is complicated then that means it is attempting to get around the plain language and intent of the 1st amendment.
I agree with Frank Apisa about the rationalizations and the fact that the sky is falling. And yes, we do absolutely treat corporations as people more and more with every passing year in tort law -- and it's only the beginning. Read (political philosopher) Philip Pettit on the subject, which happens to be his work of the last several years. If you're going to treat corporations as individuals for the sake of lawsuits and find them capable of forming intent and being culpable as a whole that is far greater than the sum of the parts of employees + shareholders. If you want them to pay you and be punished and therefore be subject to the judicial system as individuals, don't be surprised when they seek political activism as individuals. Can't have your cake and eat it. I argued this in my own blog on the subject.
Well said, Vanessa.

By the way, the Supreme Court ruled in 1844 - in Louisville, C. & C.R. Co. v. Letson - that corporations were "legal persons".
McGarrett, does that mean that everyone who works for Microsoft, for example, has the same political views as the corporation? There is no way this could be possible. A corporation is not a group of like-minded people, politically speaking.

"But by that reasoning, The New York Times and The Washington Post would have been entitled to no First Amendment protection when Richard Nixon tried to prevent them from publishing the Pentagon Papers."

That's about as "apples and oranges" as one can get. Being able to buy ads and contribute to campaigns is not the same as trying to get the truth published in a newspaper.

The practical result of this ruling is that those with the most money get to have the most free speech.
When the First Amendment was written, corporations were forbidden any participation in politics. For many decades after, that remained the law in the states. The restrictions on corporations went far beyond that.
So, anyone saying the original intent of the 1st was freedom of speech for corporations is a bit off on their history. OK, scratch "bit" - they are clueless.
Even the Federalists, as business friendly as they were, didn't raise any objection to the state laws that isolated corps from the political process. The Federalist Party eventually disintegrated, in part, because the people disliked their attitude towards wealth interests.

Americans came out of the revolution with a healthy distrust of corps, having endured the rule of the British chartered corps, like the East India Tea Company.

This public distrust of wealth interests wasn't born with the revolution. We weren't merely escaping rule of nobles and church, but also the corporations/monopolists that manipulated the costs of goods. How soon we forget....

So, there was never any intent by the founders of America to recognize corps as persons. For damn good reason.
So, don't be giving me this crap about "clear language of the 1st amendment." Our Federalist Society "Just-Us"-es have a political agenda that runs contrary (when convenient..see Bush-v-Gore and this latest) to the Constitution and its original intent.
They didn't rule on that intent, they affirmed what was merely a headnote of the 1886 USSC case. Santa Clara - v - Souther Pacific RR actually didn't make that corporate personhood designation part of the decision, that according to the Chief Justice at the time.

So to praise this abomination is to embrace a meaning of liberty our founders and those who followed would have called servitude.
"When the First Amendment was written, corporations were forbidden any participation in politics. For many decades after, that remained the law in the states. The restrictions on corporations went far beyond that."

Not that many decades at all - see my above comment about the Supreme Court's 1844 decision that corporations are "legal persons".
PS..
C. & C.R. Co. v. Letson affirmed a long standing, almost universal designation of corps as persons for certain purposes - contracts, lawsuits and property ownership. This shouldn't be confused with personhood in the meaning of a human, such as was addressed in the 14th amendment.
That C&C.R. Co v Letson merely affirmed corps as juristic persons...which gave them personhood for the purposes stated above.
There's a difference...
Um, regarding the NYT and the Post, the First Amendment also mentions freedom of the press.
How about Lionsgate Films - the distributor of Michael Moore's movies. They're not press. They're a corporation. Should they not be protected under the First Amendment?

Here are some paths for research: look at decisions the Supreme Court made in 1915, and then about 45 years later, for their views on whether a film corp should be entitled to First Amendment protections.

And do yourself a favor: you only weaken your argument by prefacing it with the "um" tick.
To Paul J. : The whole point under discussion here is whether corps are entitled to First Amendment protections. Obviously, they're not entitled to all the rights of citizens - corporations can't vote. But also obviously, they are entitled to some rights - property, etc.

I argued that corps are indeed entitled to First Amendment rights - which, by the way, serve the people's right to know, which was the reason for the press and speech part of the First Amendment in the first place.

You responded that corporations are not people.

So I cited the 1844 precedent.

I've already given reasons - such as protection of film corps, the public's right to know, etc - that First Amendment rights should be included in the rights of such juristic or legal "persons".

What arguments do have against that - since you apparently now agree that corporations are entitled to some of the rights of citizens.
McGarrett says: "This business of people complaining that corporations are not people misses the point that corporations are groups of people just as a church is a group of people and a political party is a group of people."

Churches are groups of people, granted, and so are political parties. Corporations are different from either of those examples however. The goal of a corporation is to maximize profit, and human considerations have little or nothing to do with that goal. If a corporation can increase profits by circumventing workplace safety regulations or getting around clean air standards, for instance, it will do so, and the possible negative effects generated to the well-being of humans is only considered insofar as there is a risk of getting caught. Just look at the behavior of Wall Street for examples of corporations acting directly against the interests of regular people, or at the predatory practices routinely resorted to by health insurance and credit card companies, to see that corporations aren't "persons" or "individuals" that should be given the same consideration as a church, political party, or actual human being. They aren’t voters, they aren't churches, they aren't political organizations; they’re money-making entities, with no conscience and no concern with concepts like right and wrong, and their well-being often comes at the expense of people’s health and safety. And it's not as if corporations don't already have a hugely distorting effect on politics in this country; anybody who's watched the attempts to institute health care reform or effective regulation on Wall Street fail can see that. They already have too much influence in our government as it is; this ruling will just make a bad situation, one which it's not too dramatic to call a threat to our democracy, even worse.
Paul, if all corporations were altruisitic probably no one would have much of an issue with this, but we have seen the negative results of major corporations throwing there money behind certain issues and when you are talking about corporations with billions in assets they can afford a lot more air time than anyone else. Much as I would like to agree with you, I say this will be a disaster that will soon be unfolding.
I am almost there. Thanks for this.
I was in the SCOTUS gallery the morning this opinion was read, it was an intense :30 minutes, and landmark at that.

Yes, this ruling is correct, but based on the flawed idea of corporate citizenship.

This case was about Citizens United v. FEC. Citizen's United brought forth a narrow freedom of speech argument, limited to the rejection by on-demand companies to carry their film Hillary: The Movie within the 30 day pre-election prohibition period. Specifically: An electioneering communication is "any broadcast, cable, or satellite communication" that "refers to a clearly identified candidate for Federal office" and is made within 30 days of a primary election. That was the original question. And a fine question.

Things went a awry when the simple question was broadened to include overall financing by corporations. The original case itself was simple comparatively. If one was so inclined, they could cry judicial activism.

I would be cautious about embracing this as a victory for "freedom". Consider that many of our corporations are practically bought and paid for - or are completely paid for - by foreign States. How do we deal with that issue? It isn't a light one.
Designator - Do you think people are inherently more altruistic than corporations?

If altruism were the standard for receiving First Amendment protection, we'd all be walking around with our mouths taped shut and our hands tied.
(Great conversation!) If ever there were a constitutional crisis, this is it.
My pleasure, Leslie.

Akopsa - I agree that foreign ownerships are a problem. But I still see it as a victory any time the government is roled back from regulating what we can say, write, communicate - which in turn limits what the rest of us can hear, read, etc.

I say, better to have the problem of corps owned by non-citizens, and deal with that, than have the blanket restrictions under which we lived for the past few decades.
What restrictions Paul? Please explain to me how this decision will help private individuals. How was your or my freedom of speech impacted by the restrictions on corporate money?
Paul,
The corps have free speech. I just saw a Geico commercial!

What we're talking about here is the political process and common sense. Notice churches have restrictions on political speech. The reason being churches, like wealthy interests, can compete with We, the People's government for control. The philosophy and history behind the Constitution recognized that we can't have a peaceful society if every cleric is a ruler. Therefore the separation.

Why corporations were held in suspicion by our founding Americans follows the same reasoning. They manipulate the political process by bribery, and advance their interests by what has come to be called "regulatory capture." They write the laws that "regulate" them. While this was a scandal in the 80,s, it has become SOP. In that, they compete with the government of We, the People.

We, the People grant corporations charters to perform a function within OUR system. Our franchise. We own this country, collectively. Our markets. Our rules.
That is congruent with the restrictions placed on corporations by the founding Americans. Chartered by legislatures - not by simply filing papers - for specific purposes. They couldn't perform any other tasks, could be disbanded for not acting in the public interest, couldn't own stock in other corps, had time specific charters, and, if the charters weren't renewed, were forced to end and distribute assets to shareholders.

Now, back to this We, the People franchise. Would a MacDonald's franchisee be able to act in any way they wished? Not no, but hell no. They have rules they accept as a matter of MacDonald's best interests, and Mickey D writes the rules. I believe Americans DO have the same rights as does MacDonald's.

So, there was never any Constitutional intent to grant legal constructions a right to act against the public interest, and certainly not for those phantoms to define that interest. We own the franchise rights to our markets, and have every right and responsibility to set the rules. There is no "right" for corporate participation in politics...other than this highly political, ideological and Libertarian-Right decision crafted by 5 Federalist Society members who owe...maybe Kennedy aside...their positions to their membership in that right wing big-money funded organization. America was not founded on Libertarian principles, despite their clownish posturing and Article 8 semi-amnesia.

So, Paul, I say we set aside this crap decision and let the franchise owners put it to a vote. Would Americans vote to grant corporations unlimited ability to influence elections?

The answer to that question should give a clue as to what a critical wound to liberty this unleashing of massive influence peddling represents. The Constitution was designed for majority rule....that's people, not cash.
Oh Frank, you yourself have chided me for trying to protect the constitution.
Oops....That should have read Article 1, Secition 8....after "clownish posturing."
Paul, you said: "I agree that foreign ownerships are a problem . . . I say, better to have the problem of corps owned by non-citizens, and deal with that, than have the blanket restrictions under which we lived for the past few decades."

Now that many of us agree on this point of the foreign ownership problem, what do you suppose the answer is for this specific issue which is the result of the court's majority decision. The Supreme Court isn't going to solve the foreign ownership of corporations situation for us and I can't imagine Congress addressing the issue, either.
nan: "Please explain to me how this decision will help private individuals. How was your or my freedom of speech impacted by the restrictions on corporate money?"

The history of the world - through Nazi Germany and the Soviet Union - show that seemingly reasonable or understandable incursions on freedom of speech and expression (crackdowns on "immorality" in Nazi Germany in the 1930s, for one example) are followed by mass eclipses of rights and worse. We're already on that slope in the United States, where, for example, the FCC crackdown on television after the Janet Jackson incident (a crackdown on corporate TV) prevented many Americans from seeing Saving Private Ryan the following Veteran's Day (broadcasters afraid of FCC fines decided not to broadcast that movie; it has salty language).

Restrictions on corporate funding, despite the First Amendment, make it that much easier to defy the First Amendments on other occasions.

Further, I have no idea what political messages I might have missed because of corporate restrictions so far - and that's precisely the problem. As a citizen, I want to decide what is right or wrong, therefore I want access to all possible information. The last thing I want is the government preventing me from seeing or hearing a message that could be crucial to my decision-making in an election.
designator: "what do you suppose the answer is for this specific issue [foreign ownership of corps] which is the result of the court's majority decision."

I'm a Professor of Communication and Media Studies, not International Economics, and my books are about the history of media and society (including government), so I don't have an immediate answer to that question. What I can tell you a lot about is the damage done to freedom and human beings when freedom of expression is limited (beginning with the trial of Socrates).
Paul J.: "So, Paul, I say we set aside this crap decision and let the franchise owners put it to a vote. Would Americans vote to grant corporations unlimited ability to influence elections?"

The way that would work is this: let a Presidential candidate in subsequent elections campaign on that issue (with other issues). Should she or he get elected, the new President may be able to make appointments to the Supreme Court. If the Senate ratifies, and one or more new Justices disagree with the current decision, they can try to overturn it if a new case testing it gets to the Court. That's the way the system works.

If you don't like that, your only other option would be to campaign for a Constitutional Amendment.
"Um" or not, you still didn't explain how the NYT and the Post would not have been allowed First Amendment protection to publish the Pentagon Papers. You seem to be equating "freedom of speech" with "the First Amendment." Justice Stevens' dissent clearly addresses a corporation's freedom of speech. Whenever Justice Stevens mentions "First Amendment," the context is a discussion of "speech" or "political speech."

The First Amendment guarantees five freedoms, speech being one of them. Your example of the publication of the Pentagon Papers by the NYT and the Post would not be considered a "speech" issue in court. The publication was a freedom of the press issue. The Supreme Court ruling did not address press issues.

As a corporation the New York Times is now allowed to produce a political ad saying that so-and-so is a good/bad candidate. That's a corporation exercising freedom of speech. The Times can then report and publish that the Times produced a political ad. That's freedom of the press. Both covered by the First Amendment.
Paul,
Yes, the USSC isn't final because they're right; they're right because they're final.
That is really the only argument you have that is valid, as history and intent disagree.
However, I don't think you're right about the method of changing this perversion of 1st and 14th intent. Congress could require that all corps involved in interstate commerce obtain a Federal charter, which would strip them of personhood. The ruling isn't that corporations deserve personhood, it's that by law as it stands they have it. A real stretching of the law...but we're coming to expect that from this political organization that has control of the USSC.
I haven't examined that position, so I won't give it a stamp of approval for being The Way, but there are people working on this, just as state legislatures worked up new laws after The People went ballistic over the 1814, I think, Dartmouth College SC ruling. Too tired to look it up.

Catching up a bit, I don't think corps have any rights as citizens. Citizens are natural born or naturalized. However, the Constitution doesn't restrict all rights to only citizens, just some.

Yes, your opinion ruled the day. But you shouldn't cheer it as a victory for the 1st amendment. It isn't, because it was never intended to grant free speech to corporations. Your victory is one of partisan and ideological contrivance.

Churches are corporations. Their political speech is restricted by the Establishment Clause. So, victory for your contrived 1st amendment...could invalidate the real one?
Paul J.: "But you shouldn't cheer it as a victory for the 1st amendment. It isn't, because it was never intended to grant free speech to corporations. Your victory is one of partisan and ideological contrivance."

I already responded to your point, when I indicated in one of my above comments that the ultimate beneficiaries of the First Amendment are not the speakers and writers, but the hearers and readers - or, we, the American people. And my point is that we're best served in a democracy by a maximum amount of information (including from corporations). (See my interview by Mark Molaro on The Alcove for the fallacy of information overload.)

As for the victory being partisan, my interest in this matter is not on behalf of any political party (as I mentioned in my post, I'm a lifelong Democrat). My interest is rather for freedom and democracy, which serves most partisans in our country.
Paul,
The Federalist Society 5 had the partisan victory. So did the Republican Party. They're thrilled that, even while being out of power, they can now expect oodles of corporate cash.

I'm sure your concerns are for free speech as an expression of liberty, but what we will get, and have been getting from corporate influence in politics is leading further away from that.

Are you enjoying your recession liberty? The devaluation of your home equity? The debt load you get to share with the rest of us and our children? The waste and fraud that drains our power as a country? All of that brought to you courtesy of corporate political influence.
Yours is a very Libertarian-Right position. A philosophical debate. A question of a "perfect" liberty, not a working liberty. The liberty so profound it even allows people to do harm to themselves, and also allows corporations extreme liberty, even to do harm to people.

The philosophy behind the Constitution...which by the way is Liberal Philosophy...sought a working liberty, not a "pure" one.

This new "liberty" won't work for We, the People.
I guess maybe the Constitution IS a suicide pact...I know of at least 5 guys in robes that see it that way.
Stim: "you still didn't explain how the NYT and the Post would not have been allowed First Amendment protection to publish the Pentagon Papers."

First, I gave the example of Lionsgate Films as a corp which might not be accorded First Amendment protection, prior to last week's decision, since it's technically not a "press". Is that the kind of country you would like to live in?

But more specifically about the NY Times and Wash Post: When the First Amendment was adopted, newspapers were owned and operated by private groups of individuals. Freedoms of press and speech were both non-corporate back then. But by the time of the Pentagon Papers case, the NY Times and Wash Post were owned by corporations. If you're right that the statuses of "press" and "corporation" would have lead the Supreme Court to protect the "press" part of the NY Times, but not the corporate part, how come that issue was not raised in the Pentagon Papers decision? How come the Court didn't say, even though the Times and Post are corps, and therefore not entitled to First Amendment protection, their status as "press" trumps that?

I submit it was because the corporate status of these papers was never an issue - the Court recognized that corporations have inherent First Amendment rights to communicate, the same as individuals.
Reading about the case, I reluctantly have to agree with the majority of the court. I say reluctantly, because I think the ruling will do little good and could do much harm to your system. But the application of the law seems sound to me.

We should really be honest here: When we worry that corporations will decide elections by bombarding you with political ads, we are basically saying that the majority of voters are to gullible too see through these ads. Perhaps that is the case. But if so, our problem is really with the whole concept of democracy, not with the corporations. If this ruling makes your political system unworkable, you should blame the system, or the voters who are unable to use their vote in a rational way.

But I'll be surprised if anyone has the guts to do that openly.
Paul J.: "The philosophy behind the Constitution...which by the way is Liberal Philosophy...sought a working liberty, not a "pure" one."

I'd say "Congress shall make no law" is about as "pure" or unconditional as a statement can be.
PS
How about those Saints?!

Enjoyed this. Good night.
"to gullible too see through these ads"

Now, there's a typo for the ages. Grrrr...
That's for people, Paul. Not legal constructs. The whopper flaw here is personhood under the 14th. Not a single ratifying vote for that amendment was cast with any intention it apply to corporations.

Combine that with founding history and...what a concept....observable reality...and we have just purchased the old Soviet Union's propaganda system.

Now I'm really going to zzzzzzzzzzzzzz.....
What a sickening abhorrent blog post, but like a pizza, you have no concept of shame
But this matter wasn't about free speech. It was about the corrosive effect of money in campaigns. "Free speech" is already constrained in any number of other ways. This is best actualized by the following passage from MacDaffy at http://macdaffy.blogspot.com/

> The Supreme Court held that speech--corporate money, in their lexicon--can not be constrained.

> Funny...

> I can't yell "Fire!" in a crowded theater without expecting consequences.

> I can't joke about a bomb or a weapon at any point during an airline flight with impunity.

> I can't threaten the life of a member of the federal government.

> I can't make terrorist threats.

> I can't libel anyone without fear of penalty via due process.

> In other words, my speech as a free, responsible citizen of this country is subject to constraint... for excellent reasons.

> But--by the very nature of corporate America--those constraints don't apply under the ruling handed down by the Roberts Court on January 21st.

> Libel an opposition candidate in an election?

> Tough titty... .

> A corporation buys all the available air time in a market for its preferred candidate?

> Not a problem, according to Justice Roberts. It's free speech... .

See my own OpenSalon post on this subject, with a decidedly different view, at:

http://open.salon.com/blog/ron_legro/2010/01/24/its_really_about_paid_not_free_speech
Leslie wrote: Oh Frank, you yourself have chided me for trying to protect the constitution.

I think I am the only Frank posting here...and I would never "chide" anyone for efforts to protect the constitution...

...least of all you, Leslie.

By the way...since Justice Thomas did not get his way and allow corporations to be less than transparent in these kinds of undertakings…we can always express our displeasure with corporate political maneuvering in the marketplace, so to speak.
Excellent post. Rated.

"The Constitution was designed for majority rule....that's people, not cash." The author of this remarkable statement completely misunderstands the difference between a pure democracy and a constitutional republic. It's the kind of ignorance that is sending some members of Congress to their desks to draft legislation to "fix" the majority decision, not realizing that it's the Supreme Court that invalidates legislation, not the other way around.

I was amused by the comment that the Court's interpretation would lead to bribery. I doubt that any such result could approach the level of bribery that Congress is perfectly capable of producing on its own.

This is the second thread on which I've seen a place-holder post by Kent Pitman. What purpose does it serve? I sort of like them, though. At least they're short.

By the way, I'm a conservative. It's tempting to conclude if representatives from opposite ends of the political spectrum can agree, there's a real possibility that our mutual conclusion is correct.
Norwonk wrote another essay along these same lines today. Here's a link:

http://open.salon.com/blog/norwonk/2010/01/25/the_inconvenient_truth_of_citizens_united_v_fec

More to consider.
Sometimes we forget that the Supreme Court's responsibility is to determine what is constitutional, not necessarily what is right or just. If constitutionality does not produce justice, there are ways around it. David Boren argues in "Letter to America" that a Constitutional amendment is probably necessary to achieve campaign finance reform. Thanks for the thoughtful post.
Attempting to endorse and underscore Paul J. O'Rourke's point:

Paul Levinson writes: Not that many decades at all - see my above comment about the Supreme Court's 1844 decision

Ah, you mean “Just after the last person who had any remembrance of why things were designed as they were had died.” Yes, not many decades at all. ;)

Sorry if that sounds snarky. That's not my intent. But the point is that I'm not a big fan of original intent anyway, but this is a weird mix. Reasonable interpretation is denied on a claim that original intent matters, so one must question what original intent was. If original intent means anything, surely it must mean at the very minimum “something that prevailed at the time things started.” So anything you cite from a time when all of those people were gone cannot be original intent. Just kind of “middlingly old intent,” for whatever that means.

This is also critical because if you read the Federalist Papers, and I imagine you have, it's clear their access to good info was hard-fought. I was struck in one place where they wanted to review the state constitutions or some such thing, and they didn't have access to all of them. You'd think that at least would be at their fingertips. But they did the best they could. Now why does this matter? Because it emphasizes just how fragile a good understanding is, and so when you say “a few decades had passed” you're not talking an internet era where people can just Google back. You may be talking a situation where people had very limited access to good information about how and why things were. And it was comparatively easy to get confused, I'll bet. So whatever else it can mean, I have to say I don't lean on that few short decades as a situation where it implies “just the same information.”

I happen not to think original intent matters anyway. I think laws have to change and judges have to judge, not just make mindlessly bad decisions based on claims that people hundreds of years ago knew better than we who are living. But you can decide. Either you base it on the old way, in which case you have a coherent argument but must defend it as it really was, or you base it on the new way, in which case these original intent arguments are out of bounds.
Celebrating the Supremes' decision as fair and just is the equivalent of putting Kobe on the court against an elementary school student in a game of 21 and saying: let's have the best man win. The rules are the same for both of them, but they don't start out with equal resources and the outcome of this "fair" contest is obvious.

Circa Reagan, the right wing started arguing forcefully that freedom of speech applied to media conglomerates and that any restrictions on their right to merge and get bigger and bigger was an infringement on their freedom of speech and freedom of the press. It's a dishonest argument. Granting corporations freedom of speech is like giving vampires the right to eat what they want and saying that no one should be restricted in their appetites. The idea, PL, that you can't see that corporations are driven by profits and that that makes them fundamentally different from people boggles the mind. Institutions aren't people and they don't behave by the same logic. You'd have benefitted from taking more sociology classes as an undergrad.
"The idea, PL, that you can't see that corporations are driven by profits and that that makes them fundamentally different from people boggles the mind."

People are not driven by profits, DL? Talk about boggling the mind. Who do you think own and operate corporations? Robots from outer space?

Your suggesting courses for PL, whose resume puts yours in the shade, also boggles the mind.
Rated for calm analysis. The overreaction to this decision has been amazing--Keith Olberman says its Dred Scott all over again. Twenty-eight states currently allow corporate contributions, and there hasn't been any noticeable difference in their electoral results or corruption. Corporations can be non-profit hospitals and colleges, start-ups in garages, etc. Ultimately corporations are people, their stockholders (many of which are union pension plans) or members, who can sell their stock or vote out directors if they don't like what is done with their money.
What will happen when a big corporation contributes a large some of money to a candidate and that candidate, vows, if elected, to protect their interests? many will ask. I think this is already happening, because corporations have found a way around this. They are good at funneling money along different channels. It seems to be a somewhat empty law anyway. We are already in Corporacy behind the facade of Democracy and part of this is due to the complacency of the American people.

Lucy
No Paul, you are off base by miles.
"But by that reasoning, The New York Times and The Washington Post would have been entitled to no First Amendment protection when Richard Nixon tried to prevent them from publishing the Pentagon Papers.
You are saying that the NYT and the WaPo could have been denied Freedom of Speech. In fact it was the same amendment's Freedom of the Press (which is terribly threatened today by consolidation) that they stood on, and rightfully so.
A corporation IS NOT A PERSON. A corporation is formed to PROTECT PEOPLE FROM LIABILITY in a business pursuit. That's it.
Further, this SC decision did not only overturn 20 years of campaign law, it overturned precedent reaching all the way back to the Theo. Roosevelt presidency. It goes that deep.
A corporation, if it was meant to have the same rights as human beings should also then have the same responsibilities. That means:
1) They can't pick up and reincorporate in Dubai to avoid prosecution (Halliburton). No human could get their citizenship changed overnight like that could they?
2) They cant own other corporations. Think slavery.
3) They cant merge. Think gay marriage.
4) They cant live forever. Think Frankenstein.
5) They cant be put in jail for crimes.
I could go on and on, but I think you get the point.
This case was way more than a simple corporate money being spent in furtherance of its legislative agenda. Google "The Powell Memorandum" to see the roadmap laid out for corporatist takeover of American government by an earlier SC justice.
> What will happen when a big corporation contributes a large some of money to a candidate and that candidate, vows, if elected, to protect their interests? many will ask. I think this is already happening,

It is. A number of situations have been reported, for example in Wisconsin, where corporations and special-interest business groups decided they wanted something, and so infused huge amounts of cash (following the already shaky limits of McCain-Feingold and other campaign laws) and those millions were decisive in electing a state judge. The state judge later refuses to recuse himself from the case in question, saying he can rule independently, then, along with another judge who benefited in similar fashion, votes for the corporations.

Hey, no foul there! That's just free speech. Right?
A corporation in theory is a group of people who own a company. The directors appoint CEOs and other officers to do the will of the people. That is the theory. In reality corporations are controlled by a very small percentage of the actual owners. There may be a million stockholders, but maybe less than 100 who actually have any pull or control of the company.

The decision of the Supreme Court has nothing to do with individuals or even a group expressing their opinions and views, it is about vast financial entities who are in many cases are linked to billions in government spending and regulations. Now these financial entities can pour unlimited amounts of money in the campaigns of those who are directly in charge of spending the money and making the laws. I am sure they will support the candidates who will be looking out for their interests. It is not enough their lobbyist and PACs armed with checkbooks, free lunches, travel junkets, low interest loans, used to control our elected officials, now they want to dispense with any pretense and now just buy who they want.

Before you vote check the canidate and see if they receive money from corporations, then look at what committees they control and see if the two connect. If there is a connection don't be stupid and vote for them. I am only voting independent or third party from now on. Democrat and republican party are like Coke and Pepsi because about the only difference between the two is the name.
Paul,
I posted my comment directly after reading your post (I have been posting on this case for months as well) but without having read the following commentary. I see Ive made comments many others did too, so no need to respond. Seems they're pretty well covered.
But, as Ive said in a number of pieces, my most recent as well, Tho. Jefferson wanted to include "Freedom from Corporations" as part of the original Bill of Rights. This country grew directly out of protest over marriage of corporation and state - the British East India Company had given the King shares in return for favorable tax treatment. The colonists, especially small merchants (the equivalent of todays start-ups and small businesses so many corporatists pretend to love) were being squeezed out of the market, and this went straight into the Boston Tea Party. These events defined and informed the Founders. They directly influenced the way the Constitution was written. But the management of corporations was left to the States, maily because most corporations were formed for one specific intent (such as to raise money to dig a canal) and when the intent was fulfilled, they were dissolved. In general, they were afforded no more than a 40 year "life span" in regulation (unlike today's corporation in perpetuity). You can thank John D Rockefeller and Standard Oil for the monsters we have today, when he shopped his company's domestication around to see who would give him the best deal (New Jersey).
No, corporations are not "Natural Persons" endowed with inalienable rights, amongst which are life liberty and the pursuit of happiness. They are "juristic persons" formed with only one intent, in fact by settled law, only one reason to exist - to make profit. And unlike one argument I read in these comments, humans actually are not only about profit. So I profoundly disagree with your analysis.
In the midst of the hyperbole, permit me to point out a salient fact:

Under this ruling, corporations may now make direct contributions to political campaigns in the 28 states where this was previously outlawed.

This, then, becomes a states' rights issue because the citizens of those 28 states have had their wishes overruled by the Supreme Court. As the Constitution states, all rights and privileges not specifically endowed to the federal government under the Constitution are the province of the individual states.

Congress has made no LAW establishing the rights of corporations to be adjudicated by the federal government and, doing so, would have been unconstitutional because that also would violate the state's rights provision.

A more practical consideration is that, even if corporations are currently restricted to the same campaign contribution limits that real people are restricted to, real people cannot afford to make contributions to every single federal, state, and local candidate in every campaign across the nation....but corporations CAN because they have the funds with which to do so.

Now, consider the specter of some 10,000 corporations around the United States making contributions to federal, state, and local campaigns at their discretion, and what you have left is a condition in which candidates who oppose the issues that corporations espouse will be overwhelmed by the purchasing power of the candidates the corporations support.

I'm not a constitutional lawyer but, then, neither are you. Unfortunately, it appears that the current court isn't either.

There are expressed and implied powers in the Constitution, and that alone causes us much grief.

What will cause much MORE grief will be the specter of what this nation will become with unbridled corporate contributions infecting every single political campaign in this nation.

Regardless of the LEGAL precedents, which are questionable, the political precedents and consequences make this the single worst decision in the history of the court, except for the one that anointed George Junior president of the United States.

Rather than upholding free speech, the Supreme Court just destroyed the it...and, now, it will take a constitutional amendment to restore sanity to our political process.

Anyone want to take on that job?

I didn't think so.
Gordon: Always amusing getting into a debate with you. Yes, there is a fundamental difference between people and institutions, and corporations are institutions. Let me illustrate it this way: if the governor of a state resigns or dies, does the governorship disappear? If a university faculty go out on strike, does the university disappear? The people who occupy a status and role don't create the role and status as much as the other way around. Social psychologists call what you're arguing the Fallacy of False Attribution. The Stanford Prison Experiment (aka the Zimbardo Experiment) illustrates this point - people adopt roles.

If I were to, for the sake of argument, assume the CEO position at Wal-Mart and decided that I was going to start paying our employees living wages and offered them a decent health care plan. Further, let's say I decided that our previous policy of driving down suppliers' prices was going to stop and we were going to become good neighbors both domestically and internationally. I take this bold plan to the stockholders. What would the stockholders do to me?
You might have an argument here, but you're not making it. The example doesn't work. The New York Times and The Washington Post have 1st amendment protections because they are corporations with free speech. They have protections because Congress may not make laws "infringing on the freedom of the press." The press is treated in a special category, as they well should.

I agree that we should consider free speech concerns when regulating corporations. But corporations are not people and should not automatically have the same level of constitutional protections as individuals. There is a rational basis for regulating speech in a specific medium (television) for specific purposes (protecting the integrity of elections). We can ban tobacco ads on TV on the same rational.
While you raise an important issues, I can't say I find your analysis helpful. I'd appreciate you or anyone else responding to my take on this, which attempts to address the difference between persons and corporations in a way that explains why your fears are red herrings: http://open.salon.com/blog/michaelapricio/2010/01/23/open_letter_to_glenn_greenwald
Paul;

Good post, though I side with the SCOTUS minority. The comments above illustrate just how polarized we citizens are. I'm hoping that congress will pass a law that minimizes the ability of any one entity to buy an election, without violating anyone's free speech rights.

Best Regards,

David
We're back to the same issue that is at the core of our political process. How do we teach people to evaluate their needs, wants, and fears in a political arena. When a politician or a corporation attempts to frighten voters, what causes the voters to buy into that fear?

I do computer support. Almost daily, I have to tell a client that they have forwarded a hoax --there are no email tracking programs, and they will not get a free whatever if they send out 20 copies of an email that says they will. Such -and-such famous person did not say that hate-filled quote. And so what if they did? Famous people are entitled to be weak and flawed, just like the rest of us. There is no value in forwarding that quote either way.

The severe problems come when people vote their whims and fears. I think the answer is education -- but how do we make education so desirable that people prefer it to fear and fake free gizmos?

Advertising is a form of education. The fear of corporate political advertising is the fear of the inability of readers to judge an advertisement fairly. This is a serious problem. How do you suggest we address it?
Indeed, the First Amendment mentions: "Congress shall make no law ... abridging the freedom of speech, or of the press" and contains no language excluding corporations from its protections.

But the US Constitution is not a perfect document which is why the Congress passed 28 amendments.

Last time I checked. nowhere in the Bill of Rights does it say free speech should only be available to the highest bidder. This is just intellectual folly and misses the import of the First Amendment.

Now that the Reagan/Bush High Court has ruled, I expect then not to hear any whining and caterwauling from Republicans when and if Unions out raise corporations in an election.

Conservatives got what they wanted. Enjoy because Democratic campaign managers I've spoken to say this is war.
There's nothing in the text of the 1st Amendment that says commercial speech, e.g., ad copy, ought to receive fewer Constitutional protections than political speech. Yet that's the law in this country, and it has been for a long time.

There are plenty of restrictions on free speech. Just ask Stanley Fish : http://www.australianhumanitiesreview.org/archive/Issue-February-1998/fish.html.

This post is an oversimplification of a complex issue. There's a reason this decision was so close, and it has more to do with federal jurisprudence than with your uninformed conception of the 1st Amendment.
I've noticed that you have an obsession with the "1st amendment". You seem to even extend the 1st amendment's reach to a point where it doesn't make a lot of sense. I understand you take this principle very seriously.... i respect that, but i totally disagree with it personally.

I'm not a writer or professor or anybody with a title (though, i guess you can say i'm an artist and therefore i hold freedom of speech close to my heart)... but aside from that, I'm just a citizen, and one who cares about how those with power continue to abuse it and at the great expense of the average person and public as a whole.

Perhaps a solution here would be to put a straight down-the-board cap on every citizen's (or corporation's) donation to political candidates and causes? Say, 50 or 100 max? Because surely, you have to acknowledge that this decision will have a huge effect on how much corporations will spend to promote their agenda and the amount given will weigh heavily on a politician who receives the largest sum.... right? So, if they can spend the same amount as everyone else, then the can also be held accountable finally for all the abuses they consistently take part in.
Well, Paul, you certainly touched off a little tempest here!

I think we need to be careful about arguing points as if we were constitutional lawyers. Interpretation of constitutional precedents is a complex business.

That said, Paul O'Rourke makes a useful distinction of the use of the corporate person term in saying, "C. & C.R. Co. v. Letson affirmed a long standing, almost universal designation of corps as persons for certain purposes - contracts, lawsuits and property ownership. This shouldn't be confused with personhood in the meaning of a human, such as was addressed in the 14th amendment.

That C&C.R. Co v Letson merely affirmed corps as juristic persons...which gave them personhood for the purposes stated above."

A "juristic person" is not a person like you or I are a person--this discussion thread needs to be more clear on this.

But that may not be the most salient point here. This was a decision by an activist court about paid political speech. The fact is that many believe that no candidate can win a big election without television advertising, which is conducted over a series of frequencies that are more or less held in trust by the federal government as represented by FCC for the American people.

Therefore, the FCC has the right to regulate content in advertising on these networks, where the market has driven the price of advertising to levels that only the most well-funded of all American entities can afford.

A bit of history from Wikipedia, for simplicity's sake: "Beginning on January 2, 1971, advertisements featuring cigarettes have been banned from American TV."

What about the free speech rights of tobacco companies, Paul?

The Supreme Court allows them to say what they will about cigarettes in their letters, handbills, a public communications for which they do not engage broadcast media on frequencies held in trust for others.

If your point were to be valid, in terms only of paid political advertising on television, then the FCC could not regulate cigarette advertisements without a constitutional amendment.

Your comments on this?

Further, I don't care if corporations can afford to take out full page ads in the newspapers. It has no palpable effect.

It is television that sways elections, with an assist from radio.

This is the crux of the issue--not free speech per se.
But it did happen, Frank, probably regarding apologist arguments for indefinite detention, torture, or the release of incriminating photos. And that makes your case about applying constitutional criteria only when it suits us.

Is there a way to go search and review comments on this site? I could do some digging. You said something like "Now she's going to bring the constitution into this!" And you did it gleefully.
Good morning
A catch up note, maybe more later.
Gordon O.
Nice to see you boldly stride forth from the wading pool to jump into the deep end. I'm well aware of the difference between democracy and republic, however, that distinction has nothing to do with my statement, just your harrumphing puffoonery response.

"The Constitution was designed for majority rule....that's people, not cash."

A true statement. We elect representatives by majority vote. In Congress, they act by majority vote. There is no record I know of that shows "cash" has ever been elected to any office, but perhaps you can again reach around back and grab some "evidence" from your file.
Your greatest linguistic skill seems to be reading more than was written.
Back to the wading pool, Gordon.
Paul, thank you for your responses. You wrote: "If you're right that the statuses of "press" and "corporation" would have lead the Supreme Court to protect the "press" part of the NY Times, but not the corporate part, how come that issue was not raised in the Pentagon Papers decision?"

In your reading of my last comment, I'm not sure where you are finding my split of the "press" and "corporation" aspects of the NYT with respect to the Pentagon Papers decision. When the Papers were published, the corporation and its employees were engaged in journalism, hence protected under freedom of the press. The Supreme Court didn't address the "corporate" part because it was never an issue.

If you are referring to my last paragraph, based on the latest ruling, I do make a split between The New York Times Company exercising its right to political speech and The New York Times Company engaging in journalism by reporting through its newspapers on the Company's political speech.

As an aside, this whole comment thread has been one of the best and liveliest debates I've come across on OS. Thanks for that.
Conservatives and the uber-liberal come together so rarely that it's nearly breathtaking.
I agree, awesome discussion!
The problem with the ruling wasn't finding that corporations have free speech, which being collections of individuals seems trivially the case. The crux of the matter is whether a restriction on that freedom was justified in the interest of the public good.

Freedom of speech is not absolute. Certain kinds of speech are deemed unprotected: obscenity, slander, child pornography, hate speech (in at least some jurisdictions), incitement of violence, sedition, and so on. Freedom of speech CAN legitimately be limited when a substantially pressing concern requires it.

I agree with the minority judgment in that keeping massive corporate money out of campaigns is critical to the health of democratic government. To me this is possibly the most pressing concern imaginable.
Leslie, just to put Your mind at rest. I monitor the class clown closely, and yes, he did say that.

Other than repetitive blather, like eating their young, or give him more time; he'll swing in whatever direction need be to bully his opinions on others.

Seen such sociopathic behavior from the all-knowing, fact-free one, frequently.
Thanks for the great dialogue, everyone. At this point, I may not have the time to respond to every point raised, but I do have a few minutes now, so I'll try to respond to at least a few, in separate comments, beginning here.

David Cox: "In a strictly legal sense you are correct but only in a legal sense. There is a vast gulf between legality and justice. Under a legal system it is wrong for the starving to steal bread no matter how hungry they are but under a justice system it is not."

I agree completely that ethics and justice trump law. Another example, tragic, is when FDR's immigration department turned away a boatload of Jewish refugees from Nazi Germany, who didn't have the proper papers.

But in the case of unfettered freedom of expression, I think the First Amendment and the ethical imperative for democracy are identical: communication un-censored by government. (By the way, I'm obviously not talking about criminal communication, as in conspiracy to murder. Nor am I talking about fraud - which is the basis of FTC advertising regulation.) But otherwise, the "no law" provision of the First Amendment serves the justice and workings of democracy quite well, and I think it's essential.

By the way, the Soviet Union is another example of what happens when good laws are ignored. Their Constitution guaranteed all kinds of human rights - and their Constitution was ignored by Stalin and his successors.
Dennis Loo: "The idea, PL, that you can't see that corporations are driven by profits and that that makes them fundamentally different from people boggles the mind."

I'm sorry that your mind is boggled.

But as I explained, I think the pursuit of profit - or whatever other activities corps engage in, as they're not criminal - have no relevance to the protection of their First Amendment rights. Individuals pursue profits, too - so, pursuit of profit is clearly not a fundamental demarcation of corps and individuals.
Brian Bowman: "Let me venture a guess...you're not a professor of Law."

Right, but:

1. I read a little English, and understand what the words "no law" mean.

2. As a Professor of Communication and Media Studies, and author of six books and counting which deal with the First Amendment and freedom of expression in way of another, I have spent at least half a century studying what happens when that freedom is eclipsed. Even the most repressive regimes employ the rhetoric of democracy and freedom (see the Constitution of the Soviet Union). What counts is if those ideals are implemented and put into real practice.
Gordon: " 'The idea, PL, that you can't see that corporations are driven by profits and that that makes them fundamentally different from people boggles the mind.' People are not driven by profits, DL? Talk about boggling the mind. Who do you think own and operate corporations? Robots from outer space? Your suggesting courses for PL, whose resume puts yours in the shade, also boggles the mind."

I enjoyed this response from Gordon to Dennis so much, I thought it deserved reprinting here.
Lucy: "What will happen when a big corporation contributes a large some of money to a candidate and that candidate, vows, if elected, to protect their interests?"

If the people who elected that candidate don't like her or his performance in office, the people can vote that person out of office in the next election.
sagemerlin: "Under this ruling, corporations may now make direct contributions to political campaigns in the 28 states where this was previously outlawed. This, then, becomes a states' rights issue"

Under the 14th Amendment, all rights of conveyed, protected, etc under the Constitution, including restrictions on what the Fed gov can do in the First Amendment, are imposed on the states.
RE: Robots from outer space...

Surely no one here will contend that corporations communicate the political sentiments of their shareholders.
geezer: "Advertising is a form of education. The fear of corporate political advertising is the fear of the inability of readers to judge an advertisement fairly. This is a serious problem. How do you suggest we address it?"

Jefferson and his party - in contrast to John Adams and his - assumed that human beings are inherently rational, and given enough time and information, will be able to separate truth from falsity. This comes from John Milton's Areopagetica, which argued that truth and falsity must be free to fight it out in the free arena of ideas.

I agree with Milton and Jefferson.

Education and public discussion certainly help in this process - but it must be unfettered, otherwise it's not an open marketplace.

Corporate money may indeed have an unfair advantage. But as long as anyone is permitted to express ideas anywhere, the idea is that a lie by anyone - including from a corporation - will sooner or later be exposed.

The most recent example was the news that Iraq had no weapons of mass destruction. The media dropped the ball in the build-up to the war. But, eventually, the truth came out.
Steve Dew: "There's nothing in the text of the 1st Amendment that says commercial speech, e.g., ad copy, ought to receive fewer Constitutional protections than political speech. Yet that's the law in this country, and it has been for a long time."

I addressed that issue in a comment above: the rational for regulating commercial ad copy is to protect the public from criminal fraud. No one other than an extreme anarchist would make the point that the First Amendment should protect criminal conspiracies.

So, unless you want to make the argument that corporations are inherently criminal - which obviously is not the case - the affirmation of First Amendment protections to corps has nothing to do with FTC regulation of commercial ads to prevent fraud.
Paul, I 'm not sure we agree on much, but this we do.
"Last time I checked, the First Amendment - "Congress shall make no law ... abridging the freedom of speech, or of the press" - contained no language excluding corporations from its protections."

That's great. But did you consider that in 1787 the only corporations in existance were those given a charter by the King of England (e.g., Hudson Bay Company)? The concept of corporations was so new that most states of the new republic treated them with immense suspicion, requiring elaborate documentation, formulaec internal governance, and rigid capitalization requirements.

Is the Constitution such a prescient document that it applys to things that don't even exist yet? There's nothing in the Constitution that supports that point of view, except perhaps in the 9th and 10th Amendments - and I don't you'll find support for the Court's most recent decision in those amendments.

But, perhaps you'll humor me.
Photoguy: "I've noticed that you have an obsession with the "1st amendment"."

You noticed wrong, or, you don't know what the word "obsession"
means. :)

"Obsession" entails an irrational attachment to something - or, an attachment that is immune from rational discourse.

Show me where in my blog or comments I've said anything irrational in defense of the First Amendment.
I have a form letter comment, as posted on Norwonk's page, but it adds to my argument, and pays attention to Mr Klingaman's statement about the difference between what precedents, etc, the USSC uses to craft a ruling and what we are discussing.

All rights are qualified. There are many examples of limiting free speech, so the 1st amendment as plain language and an absolute isn't grounded in fact.
Corporations aren't a group of people, they are synthetic entities. The shareholders of corporations are free to spend at will, and some corps take advantage of pooling shareholder or employee resources to act politically outside of the corporate veil. *That veil being extra rights to limit shareholder liability for the corp's actions. Individuals don't have that right. How can they be equal?*

To say the group owning a corporation is having their right to free speech restricted is simply wrong.
Where those who control the corporations would, naturally, object is in having to spend their own money instead of the shareholder's, even though some shareholders might disagree.

But that's more philosophical, and law and precedent is the true question per the ruling.
The SC decision wasn't very well grounded in law or precedent, which makes a sweeping decision to demolish decades of laws based on precedent much easier.
Read both the majority opinion and Steven's dissent. Because the SC ruled on it doesn't make it a great profound truth. You decide which argument is most persuasive. My opinion is the minority dissent is grounded in precedent, the majority's opinion in ability to act.

http://www.law.cornell.edu/supct/html/08-205.ZX.html
PL: I'm sorry, but when it comes to regulation of cigarette advertising on television, you are incorrect.

"We hold that the fairness doctrine is applicable to such advertisements," the FCC said. The FCC decision, upheld by the courts, essentially required television stations to air anti-smoking advertisements at no cost to the organizations providing such advertisements.

It's about monopolizing the public airwaves.
Steve K: "If your point were to be valid, in terms only of paid political advertising on television, then the FCC could not regulate cigarette advertisements without a constitutional amendment. Your comments on this?"

First, I think the FCC is unconstitutional, and I'm hoping that some day a more wise Supreme Court will strike it down. See my Flouting of the First Amendment for more.

The Constitutional way of dealing with cigarette ads is to go after the tobacco companies for blatantly false advertising, which results in considerable human suffering and death. That always has been more appropriately the job of the FTC, which appropriate regulates advertising that is fraudulent (see my comments above).

Note that criminal fraud in the selling of products that people literally consume has nothing in common with even the most nefarious political advertising. The first needs to be regulated, the second should never be, for the reasons I and others have detailed in this commentary.
It is my understanding that this ruling does not affect the law that states corporations are not allowed to give money directly to a candidate.

As Frank stated, the sky is not falling.

People should be more outraged by the outright corruption of the politicians in Washington.
jp: "That's great. But did you consider that in 1787 the only corporations in existance were those given a charter by the King of England"

We already covered this - see the Supreme Court decision in 1844, which recognized corporations as "legal persons".
"We already covered this - see the Supreme Court decision in 1844, which recognized corporations as "legal persons"."

So you concede that your opinion of corporate speech is not found in the body of the Constitution, but is instead based upon the 1844 decision which you approve.
Paul, this an absolutely necessary discussion, bravo. Two things, one, a lot of people, individuals, are corporations now, a lot. It astounds me what is not known by apparently degreed folks on OS consistently. I've considered it myself, haven't yet, but now maybe I will start a PAC myself, all by myself, bwahahahaha.

Two, this is it folks, you can keep knee-jerking to corporate wanky market/ad-speak and pretending like it means anything to you, or you can wake up and use the web, um, you know you already are, right?, to find out who's behind what and how to organize for your own causes- Obama's election is the Elephant in the Room illustrating this very point, yet most don't get tech, much less telecom, so they cannot see the trunk to spite face ... that can change real fast though- we will pull you suckers through this! begin the process, release the hounds!

rated.

AUWE
I don't think the analogy to The New York Times holds up, since those cases don't address The New York Times' rights to free speech as a corporation as such; rather, they address NYT's rights to freedom of the press as a journalistic entity. The New York Times, as a newspaper, regardless of whether it's a guy in his basement or a corporation, performs the public service of journalism.

Appropriate relief in this instance is for Congress to craft a statute that clearly spells out what are and are not the rights of corporations viz a viz the rights of human beings. Such a statute might not stand up to judicial review, especially given the precedent created by the 1886 Santa Clara County case. As such, a constitutional amendment may be necessary in order to clarify that corporations do not automatically have all the rights of living persons. Since a corporation is conjured into existence at the pleasure of the State, and can be destroyed in the same way, and since human beings cannot be created and destroyed similarly (except in the latter instance via the death penalty!), the two are not completely equal.

I also think Justice Stevens' comment, in light of your piece, demands a response: why *shouldn't* corporations be able to vote or run for public office if they have the same rights as human beings? They have First Amendment rights, they have property rights, they have due process rights. Since they are "persons," then under the Fourteenth Amendment, they are entitled to "the equal protection of the laws." Why shouldn't Nike be able to run for Senate? Why shouldn't Chevron be able to vote for a candidate for public office?
JSFisher: "Thank you for the Scalia-esque textualist reading of the first Amendment to the Constitution."

Actually, I've strongly disagreed with almost all of Scalia's decisions and logic - most prominently Bush v. Gore.

But that doesn't mean he is wrong in this decision. I look at the logic, not the name.

You further write: "We hold these truths to be self evident, that all men are created equal..."

See my comments and discussion of the Supreme Court's 1844 decision that said corps were "legal persons".
Mark Wilson: "why *shouldn't* corporations be able to vote or run for public office if they have the same rights as human beings?"

I'm not arguing that corps should have 100% the same rights as citizens. I'm arguing, rather, that they're entitled to First Amendment rights, because that serves the public interest (see my comments above re: Jefferson and Milton). And I'm further saying the 1844 Supreme Court decision provides ample room and logic for this.
Paul L.: RE: your "FCC is unconstitutional." For me, that pretty much says it all. It explains where you are coming from to me at least. You are pretty far out on a limb here. I did check out the link to your 2005 keynote address. I would invite you to make the case. You certainly didn't in that address.

Specifically, as I see it, your first amendment interpretation breaks down as it relates to the possible monopolization of broadcast media advertising channels on television and radio. But if you are in the miniscule minority of folks who would take the FCC to be unconstitutional (and I am thinking about hard-core libertarians here), I would not expect to sway your thinking one bit. And if you had your way, we would still be enjoying blanket cigarette lifestyle ads on television. I would bet the vast majority of Americans would disagree with you rather wholeheartedly here. Still, thanks for the provocative piece.
SILVER LINING: Most decisions get very little press coverage...and damn near no discussion among the public at all!

This one seems to be a hot issue everywhere!
Paul writes: "Corporate money may indeed have an unfair advantage. But as long as anyone is permitted to express ideas anywhere, the idea is that a lie by anyone - including from a corporation - will sooner or later be exposed.

"The most recent example was the news that Iraq had no weapons of mass destruction. The media dropped the ball in the build-up to the war. But, eventually, the truth came out."

Sooner or later, as they say, we're all dead. And in the time that the truth took to come out for most Americans, and still to this day an embarrassing number of people, approximately 30%, do not know that Saddam had nothing to do with Al-Qaeda, 1.2 million Iraqis have been killed. Tens of thousands of Americans have died (most of them by suicide, an average of 18/day according to the VA itself).

I would hope that that would give the good professor pause in his assessment of the Supreme Court's decision. But perhaps not.

It should all give us pause, more than pause, that the number of corporations who now control the media are less than a handful.

To fail to see the difference between profit-driven megacorporations and individuals (and the public in the more general sense) is disturbing, as Paul and Gordon and a few others here do, but perhaps not that surprising.

There is a difference, for instance, between personal and private property. Private property is a legal category and construct that accompanies the rise of bourgeois society. The fundamental problem with profit-based private property is that the logic of it means that public needs (including that of the planet) are subordinate to the pursuit of profit. That is why drug companies, for example, can feel no compunction when they charge exorbitant sums for their anti-AIDS drugs, even though this means that very large numbers of people, in the millions, must die. This is why Ford Motors didn't blink an eye when they decided not to spend the $6/car that it would have cost them to fix the design defect in their Pintos that led to the cars exploding into flames and maiming and killing people.

To argue that "people pursue profits" just like corporations is to show an abysmal lack of basic understandings of how economic systems come into being and the basic differences between them. For 95% of humanity's existence profit and private property did not exist. Most of human existence has been spent in hunting and gathering societies in which classes are absent and the notion that you would do something for a profit makes no sense.
Steve K: "RE: your "FCC is unconstitutional." For me, that pretty much says it all. It explains where you are coming from to me at least. You are pretty far out on a limb here. I did check out the link to your 2005 keynote address. I would invite you to make the case. You certainly didn't in that address."

You say I didn't. Apparently the prestigious, mainstream Freedom Forum disagrees with you, and saw fit to put the following quote from my Keynote Address on the May 8 page of their 2007 First Amendment calendar: "What begins as a seemingly innocent campaign against indecency … always segues in short order into political censorship."

If you've indeed read the transcript of the speech, tell me what points you think I got wrong.
Re your WaPo argument on the Pentagon Papers:

Do you equate any corporation with the fourth estate, which enjoys a special, priveleged status, as argued in the Federalist Papers, and clearly show the founders' intent on freedom of speech?
Very very interesting comments here. Thanks for such a fascinating discussion, Paul.

Many of you are no doubt correct in your analysis of the law.

That being said, I can't help but think that if Thomas Jefferson were alive right now, he'd be shaking his head and saying "You guys are fucking crazy."
I will add one more point - one that will not make me any profit!
An excellent exposition of the history of this decision, going back to the 14th Amendment is Thom Hartmann's "Unequal Protection - The rise of corporate dominace and the theft of human rights."
No, I get no royalties from this book. It was a good place, however, for me to start my education on this point, upon which I have blogged often in Open Salon.
Paul, you keep going back to the 1844 case calling corporations persons, but you have yet to say how a "natural person" recognized in law as human and a corporate "person" which that case discussed became equal. I plan on reading up on the case you mention, but this one point, the mixing of "natural persons" and their attendant rights and "corporate persons" seems to be a glaring omission in most of the commenters thinking.
Paul, As I said, the unconstitutionality of the FCC per se is what you did not make the case on. This is not is not to defend any of its errant enforcement actions on decency, but its existence. Its mission is much broader than you allow in your remarks. And I think you got its origins wrong, too. It was originated to establish radio bandwidth parameters, acting on behalf of the public, in whose name they were divided up.

By the way, I think your post should be on big Salon as per Kerry's newly announced initiative.
There is no legal foundation for the concept of corporate personhood, and without that legal foundation, there is no justification for the idea that this ruling supports freedom of speech.

You write: "Justice Stevens, who wrote the minority, dissenting opinion, thinks the First Amendment was not intended to apply to corporations, which "are not human beings. They can't vote and can't run for office." But by that reasoning, The New York Times and The Washington Post would have been entitled to no First Amendment protection when Richard Nixon tried to prevent them from publishing the Pentagon Papers."

There is no logical connection whatsoever between the defense of media companies' employees right to free speech, including investigative journalism, and the "right" of corporations or unions to spend infinite amounts of money to reduce the access of less wealthy interests to media. In fact, they are polar opposites in the conceptual realm of policy debate.

Media companies' commercial interests are, in the cases you mention, in line with the individual liberties of the reporters they seek to protect, and who, by virtue of their being human individuals, enjoy free speech and free press protection under the First Amendment. Also, there is the little problem of media companies actually being "the press", which specifically sets them apart from any other type of corporation.

On the other hand, corporate interests that seek to spend massive amounts of money to influence elections are using other people's money, possibly to encroach on their rights, possibly if not probably without their knowledge, and yet they do so in service of the personal financial interests of individuals who are seeking to expand their own personal protections under the Constitution — a violation of the 14th Amendment.

You write: "It's hard, I know, to support the right of people or organizations to speak and write and buy ads when you utterly and vehemently disagree with their positions. But that is precisely what the First Amendment was designed to support and protect. Because it protects the expression not just of opinions you may detest, but your own most cherished opinions, when others may find them detestable."

This is nice. It's comforting to take the position that serious erosions of our civil liberties are in fact tolerable or even to be celebrated, and it feels empowering to argue that we support the right of the most irresponsible and even dangerous to speak freely, because in that way we protect our own freedoms and the rights of those less fortunate. It sounds noble. And there is some truth to it. But this is not a legal argument rooted in the meaning of Constitutional law.

The First Amendment was designed to ensure that the government not attack individuals for their views or establish an authoritarian system in which dissent is punished with violence or imprisonment. This can be worded as "it protects the expression not just of opinions you may detest, but your own most cherished opinions", but that has nothing to do with the ruling handed down by the 5-4 Supreme Court majority last week.

Last week's ruling is an activist reinterpretation of Constitutional law, which falsely assigns to money the role of "speech", an idea specific to powerful interests that are not protected by the Constitution and which has no foundation in the text or spirit of the United States Constitution. The ruling was supposed to apply to a specific incident in which one entity was not allowed to run a "documentary" that was designed to be a political ad. The language used by the majority radically expanded the scope of that case, and reinterpreted over 100 years of judicial precedent, ignoring and contradicting established precedent, where necessary.

It is an affront to democracy, and the result will be the erosion of individuals' freedom of speech, curtailing the ability of less wealthy interests to access the media environment during electoral campaigns.
Tim4: "you keep going back to the 1844 case calling corporations persons, but you have yet to say how a "natural person" recognized in law as human and a corporate "person" which that case discussed became equal."

I didn't say that the 1844 decision made natural and legal persons (corps) "equal". Obviously not - corps can't vote.

But I did say is that the 1844 decision shows it's now ipso facto wrong to say corporations are not entitled to First Amendment protections because corps are not people. The 1844 decision is precedent for corps having some of the rights of individuals. The current 2010 Supreme Court decision is saying First Amendment protections are among those rights, and I'm saying that's a good thing.
Steve K: "I think you got its origins wrong, too. It was originated to establish radio bandwidth parameters, acting on behalf of the public, in whose name they were divided up."

I didn't explicitly mention the origins of the FCC in my Keynote Address at Fordham, because most of the people in the audience had read my book, The Soft Edge: A Natural History and Future of the Information Revolution, where on page 84 I explain all about the bandwith parameters and why the FCC was created.

Steve K: "By the way, I think your post should be on big Salon as per Kerry's newly announced initiative."

Thank you (seriously). Would be fine with me if Salon's editors want to put this post up there.
Alsace: "Do you equate any corporation with the fourth estate, which enjoys a special, priveleged status, as argued in the Federalist Papers, and clearly show the founders' intent on freedom of speech?"

No, for purposes of First Amendment protection, I equate corporations with individuals. In other words, I see rights to communicate, own property, earn income as reasonable rights for corporations and individuals, in contrast to right to vote, which makes sense for individuals but not corporations.

I would add - and someone may have already made this point above - that corps already have intrinsic limits that individuals do not have - limits which have nothing to do with government. If a majority of stockholders don't like a corporate action, the corp leadership can be kicked out.

Individuals don't (yet) have a way of neatly evicting from their brain any trains of thought that do badly.
A centrist republican, I agree with your sentiments. I extend it, though, to the contribution caps for personal donors. I understand the watergate-driven antecedent based on the milk fund, as it was called, but that can be handled with full disclosure made ever easier by the internet. Lift the caps, and, oddly enough, pols will have to spend less time chasing dollars. If Bill Gates wanted to throw $10M at you or at me to run, and it was widely known, I fail to see the difficulty there. It would weaken the power of the incumbency that gives those with name recognition advantage over populist candidates of limited resources. Take this ruling to its logical conclusion.
Well, Paul, since you like definitions so much here is one for you:

Bribery: is the offer or acceptance of anything of value in exchange for influence on a government/public official or employee. Bribes can take the form of gifts or payments of money in exchange for favorable treatment, such as awards of government contracts. In most situations, both the person offering the bribe and the person accepting can be charged with bribery. Bribery constitutes a crime.

Basically, i would say you are obsessed with the 1st amendment because you seem to want to be a hero of the cause... someone that will stretch the reach (thus the definition )of the 1st amendment simply for the bravado. I say bravado because who are you trying to impress here? Yourself? " I believe so much in the first amendment cause that i'll stop at nothing to prove it!" I say that not as an insult, but because what other reason would someone side with making bribery and corruption in politics more legally acceptable?

I mean giving money to a political candidate is a stretch... to call it a protection of the 1st amendment that is. Its sort of like bible-thumpers who see what they want to see sometimes in scriptures (while ignoring real world dilemmas and seeing that there are always another sides and other ways of interpreting the same thing).

Even if you can legally say that a corporation is a person, the obvious is that a corporation's ability to say or publish whatever they want (basically their freedom of speech) has never been in jeopardy or previously subverted.
Some people may be interested in this Slate article on the same subject, in which the author has opposite views about this SC decision and the 1st Amendment:
Money Isn't Speech and Corporations Aren't People

Here are some excerpts:

…But in subsequent cases, the conservative justices who had emphatically embraced the money-is-speech principle didn't apply it to money solicited by speakers of ordinary means. For example, the court limited the First Amendment rights of Hare Krishna leafleters soliciting donations in airports to support their own leafleting. The leafleting drew no money-is-speech analysis. To the contrary, the conservative justices, led by Chief Justice Rehnquist, found that by asking for money for leafleting—their form of speech—the Hare Krishnas were being "disruptive" and posing an "inconvenience" to others. In other words, in the court's view, some people's money is speech; others' money is annoying. And the conservative justices have raised no objection to other limits on the quantity of speech, such as limits on the number of picketers….

…In the last few decades, the conservative justices dominating the court have also limited speech rights for demonstrators, students, and whistle blowers. They have restricted speech at shopping malls and transit terminals. Taken as a whole, the conservative court's First Amendment jurisprudence has enlarged the speech rights available to wealthy people and corporations and restricted the speech rights available to people of ordinary means and to dissenters….
I agree with Paul Levinson on this subject. The Court struck a victorious blow for free speech today.

I would ask those who do not agree with Mr. Levinson to consider their arguments more carefully. While I appreciate the passion with which you all seem to approach your liberties, your strong emotions appear to have overwhelmed whatever rational capacities you possess. For example:

1. If "money isn't speech" (as so many assert regardless of established law), then what of individual donations to candidates? Can those be further restricted and regulated? By your logic, they appear to be subject to unlimited restrictions, if not outright ban. If it is the amount of money that corporations may access, then are you asserting that there be laws restricting political donations from the wealthy?

2. "Free speech is limited" - well, not by the Constitution, it isn't. But you are correct in some sense: fire in a crowded theater, kiddie porn, and any number of other types of "expression" are indeed restricted. An important distinction here is that the SCOUTS decision regards ***POLITICAL SPEECH.*** So your references to the above, no matter how clever you may think they make you seem, are quite irrelevant. The court has long upheld that political speech is sacrosanct and should be restricted only in the most dire of circumstances (war and insurrection, for example).

3. "Corporations are not individuals." Neither is your local ice cream parlor. Do they have the right to petition the government for, say, changes in zoning regulations? If so, then why don't they have a right to take out an ad in the newspaper endorsing a particular candidate, initiative, bill, etc?

4. Consider that you are arguing for MORE government power over the First Amendment. Regardless of your personal feelings about corporations, do you really, at this point in our history, want to argue for MORE government restrictions on ANYTHING?

For the record: I hate corporations like Walmart, McDonalds, Target, Pepsico, Time-Warner, AT&T, Halliburton, et al. My letters to Salon over the years will verify my deep, abiding, and passionate hatred of mega-corporations. I'm so vehemently anti-corporation, I make anarchists uncomfortable, okay? And I consider the 1844 SCOTUS decision (re: corporate personhood) to be troublesome, if not anathema. But I put the Constitution, our system of laws and justice, the ideals of liberty, and the practice of freedom ahead of my own personal prejudices. Apparently, I'm old-fashioned that way.
I am under-equipped to enter this furore but I am so grateful for the likes of: Nanatehay, Rick, Jeanette, Kent, Dennis, David, Sage, Steve, JSFischer et al. So very glad you're on the planet.
calgodot,
Usually when offering a criticism of other people's overwhelmed ability to think rationally, one then offers some actual rational thinking.
Money is not speech. There are laws restricting political donations.

Political speech is in many instances restricted. Government employees and church ministers, for example. Sacrosanct not!

Corporations were not individuals since even before the Constitution was ratified. Further, if they are individuals, please take a picture of one...and no fuzzy shots of a flying saucer dangling from a fishing pole or blurry pics you claim are Sasquatch, Inc.

Government is We, the People. While you may not trust yourself to be intelligent enough to govern, we agree on that point. We, however, feel competent to handle our own governmental affairs.

Thanks for allowing us to bask in the aura of your higher intellect.
Why not limit contributions from any source and total campaign budgets in general? If we do that, and the number is small enough, it might just do the trick. Or the govt could pay for a limited budget, and we could drop citizen contributions entirely.
One thing that occured to me has to do with the phrasing of the firs t ammendment. There is a principle interpretation which states that no part of a statute, particularly a constitution, is ever meaningless.

"A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929)

The first amendment recognizes free speech and freedom of the press. But if corporations and other collective groups already have freedom of speech, doesn't this make freedom of the press redundant?

Clearly the framers of the constitution meant there to be a difference between freedom of speech and freedom of the press, but where all organizations, including corporations have full freedom of speech, what could freedom of the press actually mean? I really have trouble making sense of how this ruling fits in with the jurisprudence and the supposedly "textual" interpretation American courts pride themselves on.
Brian Bowman: "you are paid (or have been paid) by the BBC and Time Warner for interviews. Seems like a little bias goes a very long way."

Payment by the BBC for non-news interviews is standard practice - they (and I, and I assume other interviewees) see no reason why such payment for your time should distort what you say. For example, when my 2003 book, Realspace: The Fate of Physical Presence in the Digital Age, On and Off Planet was published, the BBC program "Thinking Aloud" paid a standard fee to me for an interview, in which I explained why I think human exploration and life beyond our planet is crucial to our existence as a species. In what way do you think my interview was "biased" on this subject due to this payment?

As for payment from Time Warner, I truly have no idea what you're talking about - but, hey, if Warner wanted to make a movie from one of my novels or short stories, I'd certainly consider their offer.
I Saw Dasein: "Clearly the framers of the constitution meant there to be a difference between freedom of speech and freedom of the press"

They did - and the difference was between interpersonal communication (fleeting, one-on-one, or speaking to the limited in-person audience) and mass communication (one permanent message to many: the printed press).

As I said above, corporate rights were not an issue back then for the press, because newspapers and pamphlets were in the domain of private individuals and groups, not formal corporations.

And then, in 1844, the Supreme Court ruled that corporations were "legal persons".
Mr. Levinson,

A superb post and an even better defense of your position in the comments section. Bravo!

The emotional outcry from most liberals should scare everyone. What their ultimate argument comes down to is that they hate corporations and they do not want to let them defend themselves politcally.

Imagine if every faction in this country demanded that this group or that group cannot donate their own money to causes they deem fit. Is that really the country liberals want?

All we are talking about is donations to political campaigns. If that equals bribery or "buying votes", then the problem is with politicians and voters, not the campaign donor.
It's a wonder I didn't get this right the first time. There were no lights flashing, and no sirens. One would think after all these years that I would know to think this through carefully when I start imagining there might be one special circumstance when civil liberties should be restricted.
Corporations, unlike people, are not singular entities with a single opinion. And they are not voluntary associations in the same sense as churches or political affiliations. If I an an employee of a corporation, profits from my efforts can now be leveraged to support candidates I do not personally support. My only recourse is to quit my job or have my own free speech subverted by being forced to "speak" against my will.

This isn't about promoting free speech. We won't have a broader marketplace of ideas as a result of this decision. We'll have a narrower one. By virtue of their wealth, corporations will have the biggest megaphone and will simply shout down the ideas and candidates that don't serve their narrow, profit-making interests.

You can probably make the legal case on either side of this issue. But in practical terms, I cannot see a scenario in which the public is better off. That makes it a bad decision.
I couldn't disagree more. Corporations are not really individuals, whether the ruling supports that idea or not, and no amount of re-vamping it can make it an intention of the Founders (who were all dead by the 1800s, incidentally), who spoke vehemently and very specifically against doing something like this and for very excellent reasons. Also, it is as far from an issue of freedom of speech as you can get. Terrible reasoning on your part, Paul. Freedom of speech does not get to cover creation of an oligarchy, whereby candidates may be bought and sold by an entity so very far from being an individual whose 'rights' are being violated, instead being some sort of 'thing' without clear identity and purpose that it is utterly mindboggling that anyone would see this in the best interest or supporting any sort of democracy of any kind.

Not to mention, the original 'corporations are persons' decision was created out of whole cloth based on a dissenting opinion to a court decision about something else entirely. It isn't even based, at bottom, on an actually good decision in law. It's a terrible idea, ripe for abuse of power. Corporations are, in fact, a group entity, and much more prone to what we might consider a psychopathic mental state, in that as an 'entity' the corporation cares about nothing. All decisions, thus, get made in an ethical vacuum.

To try to re-frame this, i.e. make it up, or frankly, completely and utterly misinterpret this situation as a freedom of speech issue is utterly the most repulsive and incorrect form of the interpretation of the Constitution and our Constitutional rights as I could even imagine. You might as well start creating fiefdoms again because that's what it amounts to.

Of course, I am overwhelmed by common sense here. At least be honest and call it what it is ... a few greedy men who want to run the country without benefit of consulting the people of it. Don't try to reframe our Constitutional rights to make it okay. It's ridiculous and repulsive.
Paul L. (and others), sorry for the delay. I put one piece up today on this topic, When Bullies Rule. It addresses some of what you say. There are still other issues you raise that are not fully addressed there, so I don't claim it's a full answer. I have separated out some of the other issues for a possible follow-up post. It's a really big topic and it is easy to run long. I'm trying to stay organized.
"There is a difference, for instance, between personal and private property." And what might that be, DL? You choose to talk, ludicrously, about only private property.

"For 95% of humanity's existence profit and private property did not exist." Right, and look at the results: untold millions of oppressed, uneducated, starving, and huddled masses. By espousing and elevating the concepts of private/personal property and profit, Anglo-Americans have created countries and cultures of unprecedented and unsurpassed power, progress, and enlightenment.
Paul,
I see you're back to saying the 1844 decision declared corporations are legal persons, and that extending from that they deserve 1st amendment rights.
They affirmed corp status as Juristic Persons. A very narrow legal description as "same as person" for the 3 tasks stated previously. That is not the same meaning as human person.
Is a wad of hair and two dismembered arms a person?

Usually when people ignore facts, as you have done on that issue, repeatedly and after correction, it's pretty much a flashing ideologue indicator. I think you're too wrapped in milking the 1st amendment issue to see how it plays off of other concerns for liberty.
Your idea of freedom will lead to less, not more liberty. You have fallen into the ideologue's trap--if some is good, then more is better, so in every instance must be great.
There is more to liberty than the 1st amendment. In our Founder's time, when the questions of liberty were clear to most and "the" issue, they forbid those commercial, self interested corporations from any participation in politics. Unlike you, their concern was liberty in a much broader meaning.
Champion of the 1st? Maybe. Defender of liberty? You're in no way qualified for that title.
However, this was an enjoyable and lively discussion.
My greatest concern is establishing non-corporate funded sources of information. Since most Americans rely on the MSM for their news, they'd likely see a lot more of what they see now, which is essentially corporate sponsored news and analysis. Easily accessed, independent journalism is already on life support. How can we do that?

Again, I suggest viewing the PBS NOW episode which makes the case for government-funded journalism. The Nation took up this idea in a recent issue as well. Both sources refer to the book The Death and Life of American Journalism: The Media Revolution that Will Begin the World Again (Hardcover) ~ Robert W. McChesney (Author), John Nichols (Author).

We need to be innovating new ways of providing info to the average citizen that is not entirely Internet dependent.
forgive me if someone's already said as much, but I've not taken the time to read all the comments, being two days late to the conversation.

the ruling was _not_ about the limitation of _what_ a corporation says, but _how_much_ they spend saying it.

A) the NYT publishes articles, news and opinion, written by individuals, perhaps at the behest of a corporate entity. Those articles always have a byline or attribution. At least, you know it was the Times who published it.

B) An advertisement blasting the voting record of a particular politician (or his personal life, or his wife's drinking problem, etc. - none of which needs to be true) is only required to say, "paid for by..." and that entity can be some nebulous shell group. "Citizens for a Concerned America," or something. It does _not_ tell you who paid for the content, or what interests they represent.

C) any corporation can now, where they used to pay tens of millions to lobbyists to try to influence political opinion, now just say, "change the laws to benefit us, or we're spending millions on whoever runs against you."

I have _no_ problem with an advertisement that says, "we're the oil and gas industry (or wildlife protection, or government reform) and we think this politician stinks/is great." _That_ assumes accountability.

The current ruling means all the media we're exposed to can be saturated with propaganda for or against any issue, with no (immediate, visual) accountability. If the World Wildlife Federation (or Electronic Frontier Foundation, or Amnesty International) spent $15 million on a campaign, I'd know how to base my interpretation of what's presented, based on how I feel about those groups. They sign their names to what they say. Corporations do not. And we _know_ corporations do _not_ have our interests at heart. They don't have hearts.
Paul: "The most recent example was the news that Iraq had no weapons of mass destruction. The media dropped the ball in the build-up to the war. But, eventually, the truth came out."

you're aware that around 40% of Americans still believe there were WMDs in Iraq?

yes, the truth comes out - but what air time can it afford to buy?
I'm late to the discussion, and this comment will likely be missed, but I feel compelled to tell you your logic is flawed, no matter how well-intentioned.

One flaw is the assumption that the Supreme Court decisions are infallible. Courts issue flawed and contradictory rulings, and are later overturned. The notion that "corporations are persons" cites a ruling in 1844 - and assumes that ruling wasn't flawed. If one could argue (and many are) that any court is biased and its rulings unconstitutional and subject to further scrutiny, so could the case be made for that ruling as well. Court rulings are based on case law and precedent. The opposition argued that there was sufficient precedent for ruling against Citizens United. The court didn't see it that way. It doesn't validate the decision if it's built upon earlier flawed decisions.

There is an argument - and I feel a valid one - that, presuming no entity (person or corporation) can be restricted in the content of their "speech" (in quotes to denote all forms of communication), that a single entity should have vastly superior means to influence public opinion, if not a politician directly, means the system is broken - and the system should be fixed, not other liberties restricted.

Arguably, the subsequent laws that this ruling strikes down were attempts to do just that - fix a broken system, even if imperfectly.

This is analogous to the head of maintenance, during an inspection, finding a piece of pipe held together with duct tape. "That's not supposed to be there," he says, and removes it. Should it matter to him that the basement is now flooding? The pipe was not repaired properly, and the imperfection removed - without regard to the consequences of that removal. It's still broken, and with no alternative in place remedy any adverse effects. At least put a bucket under it.

Please forgive me, as I am not versed in Constitutional law, nor as erudite as some here in US history. What I do feel I am qualified to speak in is logic and reason.

In all laws, there is letter, and there is intent. The former is an imperfect means of achieving the later. It is imperfect because all language is subject to interpretation - even reinterpretation, keeping the same words, but defining them in different context.
An example would be Ben Franklin's famous quote: "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety." It has been used to defend, vis-a-vis the 2nd Amendment, the rights of citizens to buy weapons. It is also used against the Patriot Act, and heightened scrutiny at airports. Personally, I find it strange that the very same people who feel entitled to bring handguns to Presidential events think it's acceptable to have someone peer beneath their clothing and not bring a bottle of water on a plane. But I digress.

In my (limited) view, the rights of any corporation to express their views on any political issue was never restricted. Corporations take out ads to influence popular opinion all the time.

Any stockholder, any officer, any board member can make whatever campaign contributions they wish (to the limits of personal contributions currently provided under the law). If you wish to extend that ability to a corporate entity - that is, describe them as "persons" under the law - shouldn't they therefore be held to the same restrictions as human citizens?

The crux of the case before the court was the same reason you didn't see any Schwarzenegger movies on TV running up to California's last gubernatorial election, or old Ron Reagan films in early fall of 1980. Is it OK for a corporation, a group of corporations, or any legal construct, to produce media critical (or in praise) of any politician running for public office? I think so, yes. While they're campaigning? Isn't that tantamount to a campaign ad? They were never restricted from airing their material in the interim.

It's not about influence. It's about undue influence.

You can say, "the truth will eventually come out - outright lies will be exposed." When? And with what voice? After the election will we find out the senator did not beat his wife? After thousands of American soldiers have died in vain will we find out there were no weapons of mass destruction in Iraq, and there was no connection to our being attacked (and therefore no cause to invade)? Who's going to spread the truth? More than a third of America still believe Saddam responsible for 9/11 and in possession of WMDs. Fox News is a media empire that pays its talking heads millions of dollars to spew hatred and division, and Air America has filed for bankruptcy protection. There's your free market for information right there.

I've heard some say, "voters aren't dumb - they'll be able to see through corporate influence." Tell me if you've seen the infomercials formatted as local news. Have you heard the radio ads that begin with, "...and we're back," suggesting to the listener that they're hearing the host, not an advertisement? I can tell the difference, but I've tested above average in intelligence - more than half of America has not.

In Poland, for example, when a TV program goes into commercial, and then comes back, there is a prominent bumper that says, "reklama," which translates to "advertisement, advertising, promotion or publicity." Or, "this is the show, that is something someone paid to put on the air." In magazines, in the US, there is supposed to be a clear delineation between ad copy and edit copy. Any piece of writing, no matter the specific content, that is commissioned at the behest of, and/or paid for directly by a company advertising a product, must prominently display the word "advertisement" on the page. And like the flashing dot in the corner of the screen at the movies that tells the projectionist to change reels, my wife had never in all her years noticed these slugs until I pointed them out. I'll wager most of you never have either.

Is it important, in adherence to the First Amendment, to allow a legal construct to create a lengthy media presentation, couched in the guise of a local news broadcast, or a piece of investigative journalism (whether or not it is such), one deliberately intent on misleading the public, one that is ill-equipped to discern the true nature of what they're watching? I would say it's not OK, not for Exxon Mobile, not for the Sierra Club - not without their name prominently displayed on the media.

Again, letter and intent. Politicians and influence peddlers get around intent while adhering to the letter all the time. Much more than the odd "business outing." Wives of legislators given plush, no-show positions with exorbitant salaries; homes purchased and sold at far above and below market prices - and all (guess what) legal, and in public view. The information is freely available.

Who is "Citizens United for Change?" Who makes up "Concerned American Voters?" Who funds them? What is their agenda? What corporate interests are they at the behest of? (Amnesty International is a corporation, just like Haliburton.)

Transparency is key. Sure, spend all the money you want - I just want to know who, and on what. And I want that prominently displayed throughout.

Let's not even get into the flawed result of allowing foreign influence into our politics. Citizens of this country can participate in elections. I seem to remember a certain President getting into a bit of hot water for accepting campaign contributions from Chinese nationals. Many corporations are multi-national. What's to stop, for the sake of example, Ikea, a Swedish company doing business here, from threatening a law maker with funding whatever candidate runs against him, unless he passes laws that favor Sweden (which is de facto extortion)?

Again, undue influence. They don't even have to spend the money - they just have to show they're capable of it and threaten to. We have monopoly laws that are supposed to prevent companies from exercising undue influence in the market place. (They're supposed to, anyway.) We've just done away with laws - constitutional or no - that prevent undue influence in our elections.

Virtually all of our media is controlled by a handful of companies. And to those of you spouting, "go to the internet and check for yourself," please remember that one of the laws currently being debated in Washington concerns free and open access to information, here in the US. Telcoms are trying to get permission to charge a sliding scale for certain information.

So, now we have a megacorp, one that has control of the media (e.g. NBC) and the means of distributing that media (e.g. Comcast - or didn't you know they're trying to merge?) that is also trying to influence what information is available, by allowing some through and restricting others, and is now capable of spending as much as it cares to on any media for or against a particular politician.

Oh, but you're free to speak out against that.
Occam: "One flaw is the assumption that the Supreme Court decisions are infallible."

What gives you the notion that I think the Supreme Court is infallible?

You may have noticed in comments that I said I think the FCC is unconstitutional. If so, surely you also know the many times that the Supreme Court has upheld the FCC.

You might also be interested in glancing at my Flouting of the First Amendment - also mentioned above - in which I take the Court to task for decisions ranging from the 1919 clear and present danger to the George Carlin seven dirty words case in the late 1970s.

You apparently also missed where I said I disagree with most Scalia's judgments, most prominently in Bush v. Gore.

Infallible? Hardly. But in the case under discussion here, the Court was right.
Paul, for someone who teaches communication, you should know not to read too much into something, or at least read it carefully.

Your professed disagreement with any individual decision does not validate any other decision nor your agreement with it because they are this time in agreement.

I would not presume to know your beliefs about the Supreme Court. I may infer them, based on your writings.

I made no claim that your belief was the court is infallible. Your opinion is based on a premise that could be flawed. To accept it as given is to presume the grounds are not flawed.

I stated that your presumption that a corporation is an individual, a person, is based on an 1844 ruling. I opened the possibility that the ruling could be flawed. Basing a premise on a potentially flawed ground is a flawed argument.

The ruling was not based on the letter, nor the intent of the original First Amendment. It was interpreted, viewed through the lens of subsequent case law. A flawed precedent creates a crack in that lens.

I'm not nearly familiar enough with the ruling of which you speak to comment on its validity, in and of itself. What I think I did do was create the argument that allowing complete and unfettered manipulation of a public process, by entities that do not act in the public interest, is something we cannot allow. Our methods and means might run contrary to the original wording of our constitution, but fortunately it can be amended.
You're right. Given a certain presumption, you are correct, the court made the right decision. Congress shall make no law, yadda yadda yadda. It couldn't be simpler.

However the presumption that is based on I'm deeply opposed to and believe it to be a fundamentally flawed premise and that is: Money = freedom of speech.

The law in no way prevented a corporation from saying whatever it wanted to say. Any corporation is free to release statements about its beliefs and its political position on any subject.
A corporation cannot marry. It cannot hold office. It cannot vote. Its right to "bear arms" is limited by law. A corporation cannot drive have a driver's license. It can't be the town dog catcher, although it may contract to provide such a service. (A new life for Blackwater?)

In short a legal person is not a natural person. You will find that the case cited, Louisville, Cincinnati & Charleston Railroad Company v. Letson, consistently refers to a legal entity, not a natural person. The famous follow up case, Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886), rests on the great pillar of a court clerk's decision to include a memorandum describing pre-hearing table talk by the Justices that was not otherwise incorporated in the decision. The rabidly conservative Justices looked under rocks for a reason to undermine settled law in an irresponsible way and will invite destabilization of our political system.

Whatever the legal basis the Supreme Court used - or misused - the right wing majority has clearly mainlined its philosophy of corporate favoritism into the vein of American free speech rights. Jurisprudence is a compound word. The prudence part of it alludes to taking care of the future. Surely this non-commonsensical decision should be read as bowing and scraping to a corporate culture run amok in a good and great country.
I thought I would share this with you all... picked it up from the NY Times... http://nyliberalstateofmind.blogspot.com/2010/02/corporation-running-for-congress.html
Good for you, Levinson, and your intellectually honest post. I read every page of the opinion, and you called it absolutely right. The President's comment at the SOTU address left little doubt that he hasn't read it. Justice Alito was right to shake his head, because the President misrepresented the opinion.
Our government regularly limits speech in the interests of democracy; and the quite modest limitations on corporate speech struck down by the Supreme Court in the Citizens United decision were created to protect our democracy.

Are you not troubled, Paul, by the fact that the organizations to which the Court has handed the almost unlimited propagandistic power of large scale political advocacy themselves routinely subvert the free speech rights of the millions of Americans in their employ? Corporations achieve this through employment contracts, confidentiality agreements, and threats - implied and explicit - of loss of employment. Employees in the public sector enjoy almost total rights to free speech; not so for private sector employees. You could argue that if, as an employee of a large organization, I don't like the limits imposed on my speech by my employer I can just look for another job. But does anyone really believe that this is practicable and in our national interest?

Should an organization that can silence thousands of American voices through economic coercion be granted the rights it has denied real human beings? Certainly not.

Your attempt to justify the Court's position in the CU case through the example of the rights of media outlets organized as corporations overlooks the fact that the First Amendment specifically protects the press. The First Amendment states:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Had the opinion of the minority justices prevailed in the CU case, the New York Times would not have been threatened. Your illustration to the contrary is a red herring.

In Santa Clara v. Southern Pacific Railroad (1886) the Supreme Court for the first time held that a corporation was a person entitled to protection under the Fourteenth Amendment. The Court REFUSED TO HEAR ARGUMENTS FROM COUNSEL and issued the following brief, unanimous opinion:

"The court does not wish to hear argument on whether the provision in the Fourteenth Amendment to the Constitution, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws, applies to corporations. We are all of the opinion that it does."

According to Morton J. Horwitz, Harvard Professor of American Legal History, the Santa Clara decision was issued "totally without reasons or precedent."

The fact is that prior to 1886 - and certainly at the time our founding - corporations were in fact seen as a real threat to our democracy that required government approval to exist at all. It has only been through the obviously unreasoned decision of the Court in Santa Clara and the numerous legal battles fought by corporate attorneys over the years following that decision that we've been forced to endure the dominance of our culture and our country by these Corporate Super Persons which, just over a century ago, were viewed by government and the legal community at large as mere "artificial entities".
Thank you, Grapeshot.

H & B wrote: "Are you not troubled, Paul, by the fact that the organizations to which the Court has handed the almost unlimited propagandistic power of large scale political advocacy themselves routinely subvert the free speech rights of the millions of Americans in their employ?"

Of course I'm troubled by it - just as I'm troubled by the First Amendment's protection of the right of Nazis, racists, and all kinds of people whose views I detest to speak, write, create ads for whomever they may choose, etc. (And I'm not equating corporations with Nazis.) But that is what the First Amendment requires, and, as I mentioned previously, what history has shown is necessary if a democracy is to work (unlike in ancient Athens, which sentenced Socrates to death, for one example).

Bottom line: the First Amendment protects the rights of everyone, including those whose speech, writing, etc might urge the abrogation of the First Amendment.
Mr. Levinson, I believe you're way, way off base in your remarks on Stevens' opinion. The 1st amendment specifically mentions freedom of the press, (which you note above) as opposed to freedom of the corporation to masquerade as a person. To my mind, what is at issue here is not freedom of speech, it is the wrong-headed and indefensible decision to equate money with speech. Hence, more money = more speech. How does your position improve a real, living, breathing individual's ability to be heard?
As I indicated in many of the comments above, the press is usually a corporation.
As I indicated in many of the comments above, the press is usually a corporation.