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The Supremes, Free Speech & The Personhood of Corporations

January 22nd, 2010 by Celeste Fremon

Judicial-PINOCCHIO-I

As most of you know, on Thursday morning the US Supreme Court blasted aside
a century old ban on corporate elections spending with its 5/4 decision in the case known as Citizens United.

Here’s how the LA Times explains it:

Until now, corporations and unions have been barred from spending their own treasury funds on broadcast ads or billboards that urge the election or defeat of a federal candidate. This restriction dates back to 1907, when President Theodore Roosevelt called on Congress to forbid corporations, railroads and national banks from using their money in federal election campaigns. After World War II, Congress extended this ban to labor unions.

Now all that has been handily wiped away.

If you want to know a bit more about the broad strokes of the case, listen to NPR’s Nina Totenberg.

Adam Liptak of the New York Times
also has a fairly cogent description:

Overruling two important precedents about the First Amendment rights of corporations, a bitterly divided Supreme Court on Thursday ruled that the government may not ban political spending by corporations in candidate elections.

The 5-to-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said that allowing corporate money to flood the political marketplace would corrupt democracy.

The ruling represented a sharp doctrinal shift,
and it will have major political and practical consequences. Specialists in campaign finance law said they expected the decision to reshape the way elections were conducted.

Ironically, this comes right at the time when ordinary Americans have been growing increasingly alarmed and enraged by the way that big money interests influence lawmaking, both on Republican and Democratic sides of the aisle. However, after Thursday’s decision, those big money interests will be able to go upstream of the pesky and time consuming lobbying process in order to focus directly on buying electing the lawmakers whom they believe will view their agendas from the most felicitous possible perspective.

The Citizen’s United decision is being presented as a free speech issue. Yet, it was not really speech that was being protected on Thursday. It was the ability to use unlimited corporate money to slam or promote a candidate. Had it been so inclined, the court could have narrowcast its ruling to address the principle that was the supposed center of this case, which was the right to show, shortly before an election, an attack dog documentary on Hilary Clinton.

But the five Supremes who voted to give Citizens United its victory, went much further than a decision that would have merely viewed the documentary as protected. Instead the court gave its blessing to the corporate right to spend an unrestrained amount of cash in promoting and buying time for said documentary— or election ads or whatever form of electioneering a corporation thinks will most benefit its candidate of choice. Cynically, the court shrouded all this suddenly unfettered corporate elections spending under the cloak of the First Amendment.

In his written dissent, an impassioned Justice Stevens, vehemently objected to the Constitutional slight of hand that would magically transform a Lehman Brothers or a Pfizer into a…well….person. Here’s how Slate’s Dahlia Lithwick puts it in her article on the ruling,The Pinocchio Project: Watching as the Supreme Court turns a corporation into a real live boy:

Stevens hammers, more than once this morning from the bench on the principle that corporations “are not human beings” and “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” He insists that “they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

But you can plainly see the weariness in Stevens eyes and hear it in his voice today as he is forced to contend with a legal fiction that has come to life today, a sort of constitutional Frankenstein moment when corporate speech becomes even more compelling than the “voices of the real people” who will be drowned out. Even former Chief Justice William H. Rehnquist once warned that treating corporate spending as the First Amendment equivalent of individual free speech is “to confuse metaphor with reality.” Today that metaphor won a very real victory at the Supreme Court. And as a consequence some very real corporations are feeling very, very good.


The rest of us, I am sad to say, should feel very, very worried.


Posted in elections, Free Speech, Freedom of Information, Supreme Court | 50 Comments »

50 Responses

  1. Woody Says:

    I’m not listening to Nina Totenberg or reading the New York Times to determine what is right or wrong on this. I can’t stand either one. And, the LAT says that both corporations and unions have been barred from political spending, but it puts a little qualifier on that to make it true…and entirely misleading.

    Unions may and do contribute heavily to Democrats with money and manpower, and they get rewarded for it, for example, with exemptions from taxes, like the Cadillac insurance policy tax, that others have to pay, and with having industries that they drove into financial ruin bailed out and taken over by the government.

    Bit, pure and simple, this is an issue about the First Amendment. Corporations are made up of people working there and people investing into it. Their voices had been squeezed out. That was wrong. Now, there is fresh light for freedom of speech.

    How can you be for free speech in principle but against it in practice?

  2. Woody Says:

    “Bit” s/b “But,” of course.

  3. Pokey Says:

    As usual the liberal portion of the Supreme Court has lined up to suppress free speech, while the conservative wing is defending it.

    This decision is defending, Michael Moore, and is defending MoveOn.org

  4. Walt Says:

    “is an issue about the First Amendment. Corporations are made up of people working there and people investing into it”

    Corporations are made up of people; corporations are not people. They are not protected by the First Amendment. Same goes for unions. I can’t see a single good thing that comes out of the SCOTUS decision. Another example of right-wing activist judges.

  5. Walt Says:

    Check it out:

    http://freespeechforpeople.org/node/18

  6. Walt Says:

    “Even former Chief Justice William H. Rehnquist once warned that treating corporate spending as the First Amendment equivalent of individual free speech is “to confuse metaphor with reality.””

    Precisely. Unless you’re writing poetry, this ain’t good.

  7. Woody Says:

    The corporation isn’t making donations. A corporation is no different than a union. It will serve as a conduit for the employees who want to support politicians favorable to their industry and a conduit for investors wanting a leader protecting their investments.

  8. Walt Says:

    “It’s going to be the Wild Wild West,” said Ben Ginsberg, a Republican attorney who has represented several GOP presidential campaigns. “If corporations and unions can give unlimited amounts…it means that the public debate is significantly changed with a lot more voices, and it means that the loudest voices are going to be corporations and unions.”

    http://www.postonpolitics.com/2010/01/scotus-ruling-on-campaign-finance-its-going-to-be-the-wild-wild-west/

    Never good for democracy when individuals are superseded by institutions.

  9. Walt Says:

    “A corporation is no different than a union.”

    A) A corporation is absolutely different from a union. A corporation is not answerable to employees; a union is answerable to its members.

    B) As I said above: “Same goes for unions”. Neither corporations nor unions are individuals, and therefore should not be afforded the same rights granted to individual citizens.

  10. Woody Says:

    Walt, a union’s members are the same thing as a corporation’s stockholders. Each entity is accountable to those who provide it with money. But, before mentioned this, all the liberals on this site were nodding their heads in agreement with you, as many just don’t have any experience in business and can’t think that far.

    A corporation owes a duty to its employees to watch out for their employment interests that are affected by governent, it is answerable to its shareholders since it’s their money at risk, and its answerable to regualatory agencies and the public for its actions. In the past, the people units that comprise a business could not have their voices heard in a cohesive manner. Now, they can express their needs and views the same way that unions have.

    It’s all about free speech and not having limits on how and through what outlet people express themselves.

    If this were about freedom of the press, you people would be going berzerk in the other direction. You do know, don’t you, that your lives are ruled by situational ethics rather than principles.

  11. Woody Says:

    BTW, Celeste, did you get permission from Disney, a big corporation, for its copyrighted image? Oh, that’s right. Disney is a corporation and can’t speak.

    Why shareholders need to have a voice in politics. – Obama Seen as Anti-Business by 77% of U.S. Investors

  12. Pokey Says:

    So what Walt is saying is that it is OK for a Rich individual to Spend $10,000,000 on political speech, but it should be illegal for 500 regular people to get together and each chip in $100 each to spend $50,000 for an opposing message.

  13. Pokey Says:

    Please show me on in the text of the First Amendment where it says that Congress has an exception to make laws prohibiting freedom of speech for Unions, Groups or Corporations.

    “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.”

  14. Celeste Fremon Says:

    This new decision changes the law for BOTH corporations and unions. I just didn’t happen to talk about unions, but it applies equally to both.

    Pokey, would that this was the issue. 500 regular people can already get together and spend $50 grand on an opposing message. It’s called a PAC. Now they can be happily drowned out by corporations and, yes, unions.

    And if free speech was the issue, I’d have no problem with this decision. It’s not.

    This is totally judicial activism overturning 100 years of legal precedent. You wanna talk activist judges: This decision defines the concept.

  15. Celeste Fremon Says:

    And Woody, I don’t care whether or not you read the NYT or listen to NPR. Just bother to read what someone has reported who actually read the decision so you know what’s IN the damned thing. The WSJ for example.

    Okay, I’m off to teach.

    PS: Woody, I believe my use of the Disney image comes under Fair Use. (Yes, I do think carefully about such things.) If not, I will likely hear from the Disney Corp and I will take it down.

  16. Mavis Beacon Says:

    The hypocrisy from the right on this is pretty pathetic. We have judges ruling far more broadly than the case demands, a bare-minimum majority overturning established precedent, and a bare-minimum majority overturning the will of the people as expressed through the legislative and executive bodies. The trinity of judicial crimes. And yet all we hear from the right is that it’s a good decision. Nothing about all the all-important process or unelected judges showing deference. The only thing that matters is getting the ruling they want.

  17. Mavis Beacon Says:

    Just to be clear, I don’t have those views about judicial power (though I do think precedent is important), I simply object to those who said those principles were important yesterday and will say they were important tomorrow, forgetting about them today. And I don’t think Woody and Pokey are alone in this kind of hypocrisy, it’s the whole right wing that partakes of it.

  18. Randy Paul Says:

    Just for the record, Pinocchio was written by Carlo Collodi and published in the 1880′s. The original work is pd.

    While it resembles the Pinocchio from the film, absent any specific indication that this is a Disney product, they probably don’t have a dog in that hunt.

    Indeed, it may be that the only one who may have a legitimate claim would be the copyright holder of the photograph reproduced.

  19. Pokey Says:

    Please re-read this part of the 1st Amendment —“Congress shall make NO law” !

    Activist judges are ones who MAKE-UP their own laws and pursue their own agendas to do what they think is best regardless of the Constitution(like a Dictator – See Hugo Chavez).

    Can you really defend a law prohibiting speech when the Constitution clearly says “Congress shall make NOT law”.

    A better law might require VERY FULL disclosure of the source of the money for the speech.

  20. Celeste Fremon Says:

    RP, you are so right. I’d forgotten about the underlying tale.

    (No indication of the photo credit or I’d have listed it.)

    Actually, depending upon what I did with it, Disney could still have a claim on the “image” (as opposed to the photo image) as they would with Snow White although the underlying tale is not theirs. But under my current use it would arguably fall under Fair Use. (Longer conversation.)

  21. Woody Says:

    Activist judges limit rights. Honest judges protect them.

  22. Woody Says:

    Let me clarify that. Actvist judges don’t care about Constitutional rights. You should have heard some of the government arguments in this case about banning books. The lefties were all for it.

  23. don quixote Says:

    Well what’s good for the goose should be good for the gander; the 1907 Congressional law prohibiting the robber barons and their corporations from undue monetary influence in the election process was a direct result of the anti democratic excess’s of the robber barons during the industrial age. So if the current corporate robber barons are going to be able to act unrestrained and without regard for the public good, with billions of dollars at their disposal, influencing public policy and corrupting politicians even more than at present, then I would think labor should be unleashed from any restraints to combat the inevitable corporate greed.
    Repeal the Taft/Hartley Act of 1947 and give labor the right to boycott, strike unimpeded, and to donate as much money as they want to elect representatives who support the workers of the country.
    Oh yeah! Fat chance of that happening with the present Robert’s Supreme Court makeup.

  24. RobThomas Says:

    Corporations are going to benefit from this far more than unions are. But it was cute how conservatives framed this story to make it seem as if both are benefiting the same, so therefore it’s a wash, etc. LOL. Yeh. Unions are going to outspend big oil on campaign financing.

  25. WTF Says:

    Oh No, the Robber Barons and the Powers that be will once again rule the country.

  26. Beth Says:

    Court got it right; any PERSON, corporate or natural, has a freedom of speech right to support or oppose a political person or idea, in their OWN NAME, by giving speeches, ads, handouts on the street, paid advertisement or radio and television, as long as it is done in their name and their opinion. Freedom of speech denied to anyone can be denied to all!

  27. Beth Says:

    And where is all the complaining that the liberal unions will also be able to spend more??? Like it, or not, the 5 justices who voted for the bill seemed to do so based on the constitutionality of it, not based on their own feelings about it. That is what the Supreme Court is there to do.

  28. Beth Says:

    Obviously Obama’s promises to unions will buy him votes and more campaign funds for anyone who will promise them favors. This was the reason this law was put into effect…..the stop this type of corruption!

  29. Maclovio Perez Says:

    Obama sold out to big pharma, before this decision. Congress sold out to the insurance industry before this decision. It is not corporate America’s fault if votes can be bought! It is congress/the president that is at fault for being for sale!

    After all, when corporations buy votes they are just acting in the interest of their constituents, the stock holders, (you and me, by the way!).

    When Obama and the socialists in congress sell their votes are they acting in the interest of their constituents? NOPE! Blame congress/Obama not corporations.

  30. Joining the fray Says:

    It’s all the rage nowadays to point the finger at republicans for selling out to big corporations. Did Obama not sell out to a big corporation? Is GM not a big corporation? How many times has the government bailed out GM? He did it to but the union members votes. The dems. go about it different. They buy votes. Landreaux and Nelson could not be a more perfect example of that. That’s what turned the people of Massachussets off. The deals made to Louisiana and Nebraska in the Senate in order to get Healthcare passed were an in your face example of it.
    You can’t expect people to not be turned off by shady deals like that.

  31. Joining the fray Says:

    As far as Obama being like every other president Rob, here’s the difference. He said he would do too many things too quickly. He hasn’t delivered. He’s failed on Healthcare. He’s going to fail on Cap n Trade. He’s failed to stop the war. He’s failed to close G-Bay. He’s failed to keep unemployment under 10%. He’s failed to bring the country together. Those are all things that he said he would do. I can’t recall a president who’s failures were so resounding in their first year of office. People begin to ask themselves “what has this guy done”? When you compare his accomplishments with his failures during his first year, the results are obvious. It can’t be denied by even the most adamant Obama supporter. It’s time for him to deliver. If not, it’s one and done for him.

  32. StillNoScript Says:

    People begin to ask themselves “what has this guy done”?

    ………..

    He’s become a celebrity.

  33. Harold the peace maker Says:

    Or “Famous For Being Famous” as we Rancho Cucamongan’s.

  34. Mavis Beacon Says:

    My brother was telling me he read something where they pointed out that if Exxon-Mobil spent 10% of one year’s profits on political donations, it would be more than all the spending on the 2008 presidential election combined. Pretty astonishing.

  35. Gava Joe Says:

    Profits? Profits spent on political clout? How about they get back to Prince William Sound and finish what they were court ordered to do? Oh yes I see courts= politicians- political donations= It all makes sense. They can screw humanity AND the environment, they just have to pay to do it.

  36. John Moore Says:

    Liberals don’t like free speech by corporations, because they don’t view corporations as legitimate contributors to society. Hence they put in place idiotic laws (such as McCain/Feingold – yeah, McCain can be dumb) that do nothing to prevent corruption but throw up all sorts of barriers to the free speech of people. Celeste, you may imagine that a PAC can do what you say, but it couldn’t under the law just overthrown. A number of PACs involved in the 2004 presidential election were fined by the election commission.

    Congress was happy to create a complex set of rules that only the well heeled (like unions) could pay lawyers to understand, and that ordinary citizens, expressing their political opinion, would be tripped up by.

    I was very active in that year in the Vietnam vets movement against Kerry. I saw the corrosive effect on free speech from those stupid laws.

    But hey, for journalists like Celeste, the laws are just fine – because the big secret is that journalists can say whatever they want on the subject. Big corporations can still talk – they just have to buy a newspaper! The New York Times was able to spread its biased poison around with no federal restrictions. But its victims could not, hobbled by unconstitutional laws.

    Besides, if these laws were doing such a good job of preventing corruption, how did we get where we are today? They really worked, didn’t they! Just look at the corruption of the current administration and the Democrat congress, where corporations can pay blackmail and gain an advantage over small business, and where the administration can pick their favorites to win in business while the victims of this corruption and exploitation cannot fight back.

    Notice also that most successful federal candidates have to be millionaires. That’s directly tied to campaign finance reform, which allows rich folks to spend all they want (Pelosi, for example), while hobbling their opponents from efficiently raising funds.

    Democrats and liberals always pretend to be for the little guy, and fight the “evil” corporations that built America, but in reality, as shown by the current administration and congress, Democrats are for the powerful. Period.

  37. Samuel Says:

    “Even conservatives sometimes have been skeptical of corporate rights. Then-Associate Justice William Rehnquist dissented in 1979 from a decision voiding Massachusetts’s restriction of corporate political spending on referendums. Since corporations receive special legal and tax benefits, “it might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere,” he wrote.”

    http://online.wsj.com/article/SB125314088285517643.html

  38. Samuel Says:

    In the Court’s long-standing first amendment jurisprudence, money is not subject to the same kind of first amendment protections that speech is. There already WERE protections for commercial speech in place (see Virginia Pharmacy Bd. v. Virginia Consumer Council). In short, money is not speech in the way that other expressive activity is, and can be subject to reasonable regulations. Moreover, the law overturned, which prohibited companies AND labor unions “from using money from their general treasuries to produce and run their own campaign ads” was sufficiently narrow in scope not to act as a restraint on expressive activity. By framing the issue as one of first amendment rights rather than economic regulation, the Court is being intellectually and jurisprudentially dishonest.

    For all the shrieking about “judicial activism” that comes from the Right, this is probably the single most “activist” decision to come out in years. Well done, Roberts Court.

  39. Sure Fire Says:

    Yet on another front having to do with legal type issues. The Democrats who voted party line to not question Holder are a disgrace.

    http://washingtontimes.com/news/2010/jan/22/justice-refuses-to-release-documents/?feat=home_headlines

  40. John Moore Says:

    “In short, money is not speech in the way that other expressive activity is, and can be subject to reasonable regulations.”

    Right… the courts have held that the 1st amendment covers all nature of things as speech (dancing? Piss Christ?) that are not speech, but doesn’t cover money spent to buy, specifically, speech, in a few cases. So isn’t it reasonable that the court has overturned part of that absurd idea?

  41. Peaches Says:

    An excellent read: http://www.slate.com/id/2242210/

    “The money-is-speech theory turns out to be a rhetorical device used exclusively to provide First Amendment protection for all money that wealthy people and businesses want to give to, or to spend, on campaigns. It also doesn’t make sense under long established free-speech law. Spending or donating money to support or facilitate speech is expressive and deserves some protection. But money simply doesn’t make it into the category of things that are and embody speech, such as books, films, or blogs. Traditional speech-law analysis would separate the speech from the conduct (or “nonspeech”) elements of campaign spending and donation and allow considerable leeway to regulate the latter. Even as to “pure” speech, “compelling” government interests are overriding. And spending and donating money seem, among the traditional speech-law categories, a “manner” of speaking that the court has said usually can be “reasonably regulated.”"

  42. Wal-Mart cutting 10,000 jobs at Sam’s Club Says:

    http://www.msnbc.msn.com/id/35046668/ns/business-retail/
    Amount is about nine percent of the staff at warehouse club retailer.

  43. Woody Says:

    Those jobs aren’t being cut by Sam’s. They are being outsourced, If people are qualified, they will hook on with the outside companies taking on the formerly internal duties. If they aren’t qualified or totally inept, they will go to work for the government.

    Once again, we have a problem in which the Left substituted its goals for America’s goals. Jobs are what people want — not healthcare. In fact, about a year ago only 5% of the people rated healthcare as the number one priority. Arrogant liberals ignored the polls and went on with what they “knew” was better. Now look. California has a 12.5% unemployment rate, and that includes only those who haven’t given up yet.

    But, keep worrying about whether or not corporations can make political donations to the same extent as unions. Keep attacking corporations as greedy and evil. Then, one day, you’ll realize that the greedy, evil corporation provided a major public need — jobs. By then, the government will have taken over more than GM, Chrysler, and the banks — and made them worse, resulting in real job cuts.

  44. Joining the fray Says:

    You have a point Woody. Nobody ever got a job from a poor guy. I believe we have gone too far in making big oil and big corporations out to be “evil”. They are not evil, just as unions are not evil. They both have their good sides and bad sides. What has happened is that the balance has been lost. In recent years the unions have had all the power. That’s a problem. It’s really very simple to understand once you put your politics aside.
    Here it is.
    If the unions have all the power the corporations can’t pay higher wages while at the same time employing the same amount of people if they wish to maintain the same profit margin. Once their profit margin drops to where their investors (the American public) no longer believe they are a good risk, people quit investing. Then the government steps in and says “they are too big to fail” but let’s them continue on the same path. GM employees in reality are now nothing more than government employees.
    Most liberals love to hate Wall Street and the corporations. What they fail to realize is that when Wall Street isn’t doing well, neither is Joe Citizen. That’s a fact. No amount of political ideology can change that.
    Corporations hire lots and lots of people. If corporations aren’t doing well, neither is Joe Citizen. That’s a fact.
    We need business and Wall Street to flourish if our economy is going to flourish.
    That’s Capitalism.
    If they want to change our system of government, that’s one thing. They should just go for it. This song and dance they are doing now where they try to have their cake and eat it too isn’t working now and won’t work in the future.
    They want the benefits of capitalism, but none of the drawbacks.
    Some people get filthy rich while others do without. That’s capitalism.
    Take it or leave it.

  45. Woody Says:

    JtF: Some people get filthy rich while others do without. That’s capitalism.

    Exp.: Conservative talk radio succeeds. Air America goes bankrupt.

    Good comment, JtF. Liberals want everyone to be equal, even if it means that everyone is equally miserable and poor.

    Once, this was the case:

    In 1953, Charles Erwin Wilson, then GM president, was named by Eisenhower as Secretary of Defense. When he was asked during the hearings before the Senate Armed Services Committee if as secretary of defense he could make a decision adverse to the interests of General Motors, Wilson answered affirmatively but added that he could not conceive of such a situation “because for years I thought what was good for the country was good for General Motors and vice versa”.

    Now, this is the Obama philosopy:

    What’s good for unions is good for America.

    Yeah, like a bill that takes away the secret ballot for union ratification votes and give it a pretty name, pretty deceiving, like “Employee Free Choice Act.”

    And, according to Celeste in this post, businesses shouldn’t interfere in this union reward, as she opposes the right of investors and employees to make donations through their companies to defend their interests on this matter.

  46. Union Worker Says:

    Some people get filthy rich while exploiting and abusing others. That’s capitalism.

  47. Woody Says:

    If any union worker doesn’t like working for the filthy rich, go get a job from a bum.

  48. Mavis Beacon Says:

    Let me just say again that whether or not you believe the decision is correct, it unquestionably represents everything conservatives supposedly hate in judging – unelected judges overruling the electorate without regard for precedent or modesty. Additionally, the founders clearly did not think of corporations as deserving constitutional protection nor did they think of speech and money as interchangeable. Anybody who tells you otherwise is full of it and trying to ascribe modern conservative ideas to the founders.

    What we have here is big time hypocrisy and all the comments about free speech and the opinion itself are perhaps worth debating, but not until conservatives acknowledge that this ruling contradicts their professed tenets of good judging.

  49. Union Worker Says:

    If any filthy rich bastard that exploits and abuses workers IS A BUM.

  50. Woody Says:

    Sort of like the government exploiting and abusing families and companies for taxes?

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