The Supreme Court decision

[gwillen]

For those on my flist, if any, who support the Court's decision in /Citizens United v. FEC/, I would be interested to know your answers to the following questions:

Is a toaster a person?

Is a corporation a person?

Can you explain the difference?

What would it mean for a toaster to have a right to free speech?

What does it mean, precisely, for a corporation to have a right to free speech? This is not the same as the free speech rights enjoyed by any of the people involved as individuals -- this, as ruled by the court, is a separate right, belonging to the corporation as an entity in and of itself, completely independent of the rights of any of the individuals involved.

Can you explain the difference?

ETA: Justice Rehnquist's dissent in /First National Bank of Boston v. Bellotti/
makes for excellent reading on the subject.

Comments

[gwillen.livejournal.com]

Someone suggested that Harvard should run, to get around the question of whether it was born in the US (presumably because it was around first.)

[wjl.livejournal.com]

i don't know anything about the court decision, but i think i can explain the difference between a corporation and a toaster: a corporation can enter into contracts and has to pay taxes, two traits not normally associated with toasters.

what's the excitement about with this case?

[hvincent.livejournal.com]

it means that the united states government is now for sale! aka corporations can now legally fund political campaigns.

[beinsane.livejournal.com]

You have a point, but at the same time:

The New York Times Company can endorse candidates on its website.

The International Business Machines Corporation cannot.

Legally, both are business corporations established under the laws of the State of New York, publicly traded and subject to SEC regulation, etc. So why would silencing one of them violate freedom of the press, and the other would not?

(The wrong answer is "Because NYT is a media company." If IBM bought a weekly community paper in Armonk they'd be a media company too. Hell, employee newsletters probably count as "press".)

There is a fundamental contradiction between strong free speech rights and eliminating the problem of bribery via campaign contributions. And in my experience, the left doesn't recognize that there's a contradiction and the right doesn't recognize that there's a problem.

[gwillen.livejournal.com]

I mean, I can go a few ways on this. Following Rehnquist's dissent as linked above, which addresses this issue directly, I could say that the New York Times Company was chartered for the purpose of speech, including political speech; and that by permitting it to be so chartered, the state of New York implicitly granted it the freedom to engage in such speech. The International Business Machines Corporation, by contrast, was chartered for the purpose of making machines and selling them. (It is, in Rehnquist's parlance, a "business corporation".) There is nothing inherent in its charter that necessitates granting it the privilege of political speech, so Rehnquist would see no contradiction in silencing it on that topic.

So in fact, Rehnquist seems to think your "wrong answer" is the right one.

Of course, Rehnquist was writing in the era before conglomerates, when corporations were generally chartered for a purpose, rather than the modernly-popular "for any lawful purpose for which a corporation can be chartered in the state of Delaware." I personally would like to see us return to that era, and I think it's actually a closely-related issue to the current one, but that's straying a bit off the topic.

My actual answer to you, I think -- and it's conceivable I may seek to revise this later, but I've thought it through enough to at least have the beginning of a specific opinion -- is that we need to distinguish between _permitting_ corporations to engage in speech, and declaring that they have a _right_, Constitutional or (heaven forfend) natural, to freedom of speech. I think it's entirely reasonable to permit the New York Times to engage in freedom of political speech (given that it is chartered for that purpose among others), while at the same time not permitting IBM to do likewise. But I think this is actually NOT the issue at hand. The issue, for me, is that I do not think EITHER IBM or NYT should be held to have a Constitutional _right_ to free speech. I think that if either of them is to be allowed to engage in political speech, that is a privilege which the statute giveth, and the statute (state or federal) had damned well better be able to take away.

[drquuxum.livejournal.com]

I think the SC[r]OTUS fucked up royally here, but to answer your questions in a bizarre way....

A toaster does not have sentience, independent judgment, or an effective means of communication; therefore, you may be arrested for having sexual relations with a toaster because it is unable to give requisite consent.

A corporation, having all three of those attributes (arguably), can give consent. (http://www.guardian.co.uk/world/2009/oct/15/defence-contractors-rape-claim-block)

I know those have nothing to do with the case at hand, but it was in my head and I needed to unleash them upon the world. ;-)

[gwillen.livejournal.com]

Intriguing. That does't really answer any of my questions, although it does distinguish between a corporation and a toaster. I do not think it makes a corporation a person, though, or suggests that it should have any rights, any more than a toaster.

[platypuslord.livejournal.com]

Before necessarily getting into an argument about whether the decision was correct, I think it would be helpful to make sure we all understand the details of the case. I read most of the Wikipedia article, but I'm concerned that wikipedia may not be completely accurate on a politically charged recent event.

As I understand it, a "conservative nonprofit" organization made a smear ad about Hillary Clinton before the primaries, and attempted to show it as a movie on Direct TV. The FEC ruled that this violated Law 441b, which said corporations could not directly spend money to influence an election.

(My corporation has a "Political Action Committee". They routinely ask you to give them some of your own money, so that they can donate the money as campaign contributions to a politician who can use it for advertising. I believe this twisted machination is intended specifically to avoid Law 441b.)

Anyway the Supreme Court overturned the decision, apparently arguing that corporations should have free speech. Wikipedia makes a rather pointed comment about "...the statement by then-Deputy Solicitor General Malcolm L. Stewart, representing the FEC, that the government would have the power to ban books...", but I'm not sure if that is real or if it's partisan wikinoise.

Wikipedia has a "Criticism and Support" section. All the supporters of the decision are described as "conservatives"; all the critics are described as "liberals".

[gwillen.livejournal.com]

Hm. Given that it's a new event, I do not think it's worth my time to try to evaluate the Wikipedia article critically, because it's surely changing way too fast for any evaluation to be stable.

I think your understanding of the origin of the case is correct.

PACs are indeed, as I understand it, constructed precisely to get around Law 441b.

Even if the quote is real, I would say it's still nonsense, partisan or otherwise. Actually it's so absurd I suspect it's fake.

Notably, unions support the decision, since they are legally corporations and want to be able to engage in political speech. Other than that I think it's mostly a liberal/conservative split. Personally I'd find the outcome of the case loathsome regardless of who originally sued whom.

If there are any facts or background you are interested in, I can tell you what I know or believe to be true.

[platypuslord.livejournal.com]

This ruling means that the "conservative nonprofits" will continue to create smear ads against Democrat politicians, which is sort of a problem. But I'm not convinced that the law was terribly effective at preventing this behavior. They were forbidden from "expressly advocating the support or defeat of a candidate", but there's quite a lot you can say without crossing that line.

This ruling also, if I understand it correctly, means that my own corporation will be free to sponsor political ads directly. This is sort of nice, to the extent that any political activity can be described as "nice". More specifically, if you believe that this rule was mostly constraining the speech of "good guys" while having little effect on the "bad guys", then overturning it would lead to a more level playing field.

I suppose that, given Rush Limbaugh's express support for the ruling, we can conclude that he believes it will favor the Republicans. I'm not sure how he thinks that will work, but probably he knows better than I?

I'm sort of nervous about any argument that goes, the "conservatives" like this and the "conservatives" are always evil, therefor I dislike it.

[platypuslord.livejournal.com]

While I'm summarizing things: if I understand Rehnquist's dissent correctly, he's making the argument that corporations are psychopaths (in that their obligations to shareholders cause them to focus exclusively on gaining money and power) and therefore should be kept out of politics. Is that a correct summary?

[platypuslord.livejournal.com]

As to corporations and free speech: I can think of several possible situations, off the top of my head, in which I would be very sad if my corporation were denied the ability to speak freely. I probably shouldn't enumerate them in a public blog post.

[platypuslord.livejournal.com]

It sounds to me like the problem is not so much that we want to prevent corporations from communicating, as that we would like to prevent entities from efficiently spending money to affect our political process. In other words the problem is that our political system is too easy to influence via advertisement.

To the extent that Law 441b was doing something to hold that off, I guess it's sad to see it go. But I feel like there ought to be better ways to fix the problem than censoring corporations' political expression.

In particular, what if we had a law that let us aggressively prosecute political entities that make demonstrably false statements? (cf. this long and bitter rant from FiveThirtyEight.) Considerable tuning would be necessary.

Alternatively, maybe in ten years' time the Internet will make television advertising obsolete. That will have its own set of problems, of course (it will make it even easier to "live in a bubble" and only read news sources we already agree with), but maybe it will make it more difficult to influence elections via brute advertisement.

What if we develop strong web-of-trust technology that lets us annotate communications as false or misleading? In some sense this is just an antispam problem such as we have already solved for the email domain. (And, IMO, it's a technology we badly need anyway.)

[roseandsigil.livejournal.com]

Interesting. I will have to actually read the decision I guess. I had been assuming that the essence of the decision was that corporations were groups of people and to deny them rights was thus unconstitutional. However, you seem to be saying that the decision claims that corporations have rights in and of themselves, a position I find morally abhorrent.

I find the first idea (that corporations have rights as collections of people) to have disturbing consequences, but I am having trouble arguing against it from little-l liberal axioms.

[gwillen.livejournal.com]

I am not sure I precisely understand the distinction you are trying to make. I'm not sure you precisely understand it either? The people in a corporation already have rights, so either you are granting them additional rights (which I find morally abhorrent, and I feel is the line the courts have been taking) or you aren't, in which case, noop. So what is the meaning of your "groups of people" line of thinking?

[balseraph.livejournal.com]

And now, with respect, presenting the case *for*.

Or, put another way, the propaganda from the evil side of things.

The commentary so far has been largely interesting and intelligent, but I would like to put forward that it’s going completely in the wrong direction, because of incorrect preliminary suppositions.

To Whit:

The difference between a toaster and a corporation is as follows:

There is no such thing as a corporation, in the sense that there is a thing like a toaster.

A corporation is a method by which people who share a personal interest in a given subject and / or economic activity gather and self identify. Adopting this group identification carries certain legal ramifications, and for the purposes of simplicity, in many cases has the legal fiction of being an “entity”. The fact that this is a (legally relevant) fiction is self evident in that: if a “corporation” becomes liable for a legal malfeasance, then it is some or all of the people who have chosen that identifier who will pay any consequences for any violation of legal code by the corporate “entity.” This is true even if the consequences are purely financial and paid out of the “corporations” slush funds; those funds are now unavailable to the people involved for use in paying salaries, bonuses, or other activity that they would direct and design.

So, what we’re really talking about is: is it appropriate for groups of freely associating individuals to make political speech *as a group*, rather than as individuals? Further, is it appropriate for a group with a profit motive to be extended the same liberties as groups that claim to function not for profit?

I’m going to leave aside the purely interpretive legal argument; I’m not a legal scholar, and whatever else you might want to say about him, I believe it can be said that Justice Scalia can be trusted to present the best possible, unvarnished, bare bones *legal* interpretation / decision, though not necessarily the most (subjectively) morally or philosophically desirable outcome.

[balseraph.livejournal.com]

There are many tracks to this, but here are a few of them, as I see them.

I think it can be agreed that self selected, special purpose groups can, in many cases, be trusted to achieve better opinions in their combined expert consensus than individuals. This is, of course, not universally true, but it is a strong baseline.

Allow me to then put forward some extensions:

A for profit group is required, by definition, to put their mastery to the test. I would, for example, be inclined to trust the advice corporate engineers give to their superiors about their fields of expertise over the advice given by an academic who has only studied a topic, and for whom an incorrect conclusion caries no more consequence than choosing the wrong numbers for the daily lottery. Certainly, sometimes the academic will be right, and the corporate engineers will be wrong. Certainly, the desire to tell superiors what they want to hear can be a factor for corporate engineers, but I operate under the belief that corporate managers who are willing to be told something that isn’t true to fill a preconceived belief or plan, at the risk of profitability, roughly matches the number of Academic Deans who have some political or personal vested interest that shades what sort of opinions they want to hear.

Next, I would like to put forward my (very strong) belief that economics is not a zero sum game; that it is possible for one entity or corporation to make money without in any way lessening the standard of living of any other entity. Further, that free market economic activity in an environment (mostly) free of deception, with enforceable contract law, will inevitably create net wealth with almost every single transaction. (If I go to a store and buy a loaf of bread, both I and the store’s owner are now ‘wealthier’, in the sense that we each gave up something that we valued less than the thing we received.) Given this perspective, to characterize a corporation as anything like sociopathic is a travesty. I am of the camp that believes that corporations and free market business is mechanism of prosperity creation, and their propagation and growth is to be welcomed and encouraged.

Finally, addressing the possible “imbalance of benefit” between evil Republicans and their hideous masters, the loathsome Multinational Conglomerate vs. Democrats, defender of the common man, allow me to say: trade and labor unions. Under the old laws, they were restricted in the same way as, say, McDonalds or Shell Oil. Now, they have the same liberties. Given that most corporations tend to grant large donations to all major / viable candidates in a given race, in order to avoid offending the potential winner, and thus essentially “factor out” their own influence, Trade and Labor Unions give almost exclusively to liberal, progressive, and Democratic candidates. Thus, I feel a strong case may be made (and Mr. Limbaugh has made this precise point!) this is not a victory for “big business” or “the Republicans” but of “free speech.”

Thank you, I yield the floor.

[gwillen.livejournal.com]

I was hoping to ensnare you in this discussion. ;-) I will take some time to read your comments carefully before I respond.

[physics-dude.livejournal.com]

So, what we’re really talking about is: is it appropriate for groups of freely associating individuals to make political speech *as a group*, rather than as individuals?

I think this point has already been addressed as the distinction between incorporation and association. The difference being that a corporation is granted legal privileges not granted to any individual or the association. Why should the association be allowed to leverage the corporation's privileges for the purposes of the association's free speech? The association already has free speech outside of their incorporated status.

That is just a counterargument to that particular statement, but on the whole, I think not having legal training I can't actually know for sure what the implications are, and for now I am still pretty reserved in my judgment.

[physics-dude.livejournal.com]

Your question is totally ridiculous and has nothing to do with the issue! I will give you what I think is a totally ridiculous and logically sound answer.

First you have to define what a person is, I suppose. But a toaster is an inanimate object. A corporation is a collection of individuals working together. Inasmuch as it can have emergent goals and desires, self-preservation instincts, even procreative ability, that are not directly attributable to any one member's business decisions, it would seem reasonable to at least call it alive, as a distinct entity. "Person" is perhaps just a legal distinction; inasmuch as a corporation has emergent communicative behavior comparable in coherence to individual human speech, it makes sense to speak of freedom thereof.

[gwillen.livejournal.com]

This comment scares me, because I feel that you understand the issue in the same way I do, but come to the conclusion I feel is evil. :-)

Have you read the book / seen the movie /The Corporation/? If not, I would ask you to do so. I think, of the people I know / the people in this thread, you are the most likely to be swayed by it. (I suggest the movie, of the two, since it's the form I've seen it in.)

[gwillen.livejournal.com]

In a sense, this post was targeted to people with whom I am having a different argument than I am apparently going to have with you about it. This post was targeted to people (almost everybody) who make fundamentally-confused statements like "a corporation is no more than a group of people, and of course people have rights, so of course corporations should have rights." You already see eye-to-eye with me on what I consider the fundamental confusion there, of the nature of the corporation as an entity.

Now I suppose I should proceed to the second prong of the argument, which goes roughly as follows: We now have an artificial entity, which, if you think it behaves as though it is intelligent, we might as well treat as a kind of AI. But the way it is structured, 1) it has almost no capacity for morals, 2) we have configured it to accumulate money as efficiently as possible (since efficient commerce is its raison d'etre), and 3) we have permitted it to use that money to directly manipulate humans (e.g. through advertising, specifically in this case political advertising.) In short we are doomed. :-P

[kartiksg.livejournal.com]

I think I may actually be in support of this decision in the interest of consistency. If we start from the assumption of corporate personhood, then they get free speech rights as well. As far as I can see, all that has actually happened is, now you can see "INTERNETS NEED TO BE FREE NOT NEUTRAL! VOTE FOR X! (tiny font: This ad was sponsored by the AT&T)" as opposed to "INTERNETS NEED TO BE FREE NOT NEUTRAL! VOTE FOR X! (tiny font: This ad is sponsored by People for the free Internet society pact group). It says that "all corporations can openly support candidates" as opposed to "most corporations can indirectly buy candidates through lobbyists and only a few like fox and msnbc can openly (for sufficiently twisted, legalese-ass-covered definitions of open) support candidates".

What I don't support is the double standard when it comes to duties. Corporations must either have the same duties and liabilities of a citizen (which weird.. citizens can't merge.. citizen's can't simply pass off responsibility). Or the idea of corporate personhood itself should be revoked. I would go for revoking personhood and only leaving the original purpose of corporations -- limited liability. As I see it.. limited liability? limited rights.

[gustavolacerda.livejournal.com]

http://www.salon.com/ent/comics/this_modern_world/2010/02/15/this_modern_world

The more interesting question...

[(Anonymous)]

is why you oppose free speech for toasters.
-azana (who's too lazy to set up open id)