The Volokh Conspiracy

In a recent Slate article, Rob Goodman and Jimmy Soni claim that the history of the fall of the Roman Republic strengthens the case against the Supreme Court’s decision in Citizens United, which ruled that the First Amendment protects corporate and union political speech against restriction by government. The influence of money in politics, they claim, was what brought down the Republic. Dubious analogies between the modern US and ancient Rome are all too common. This one has two serious flaws: the problematic use of money in ancient Roman elections involved outright bribery and corruption rather than merely spending on speech; and even that wasn’t really what caused the republic to collapse.

As Goodman and Soni recognize, the financial corruption that plagued ancient Rome was not spending on campaign speech, but flagrant bribery of voters and public officials:

Ancient politicians were just as skilled as modern ones at identifying and exploiting loopholes in election law. In Rome, the key loophole lay in the fuzzy distinction between ambitus (electoral bribery) and mere benignitas (generosity). Roman elections were often won on the strength of free food, drinks, entertainment, and sometimes hard cash offered directly to voters and financed by private fortunes. In fact, Roman campaign slogans were sometimes inscribed on the bottom of commemorative wine cups—you could drain the cup and find out whom to vote for. Most of the Roman elite relied on the gentleman’s agreement that the line between bribery and generosity would not be strictly patrolled. At worst, rank vote-buying was something your opponents engaged in; you, on the other hand, were simply being a good neighbor....

Politicians able to afford the massive bribes were usually able to afford protection after the fact. Worse, with no enforceable limits on spending and a heavy premium on one-upsmanship, the price of elections skyrocketed. Five years before the republic collapsed, Cicero made an astonishing claim: The wealthy had injected so much cash into election season that the interest rate in Rome temporarily doubled.

Nor could the power of money be confined to election season—its influence spread throughout the republic’s government. Rome had long sent politicians to govern a province after their year in office; ultimately, they felt entitled to fleece those provinces in order to recoup their election losses, a practice that spread deep resentment of the capital. The biographer Plutarch records bribery of civil servants, who were paid off to erase debts owed to the public purse. Jury verdicts, too, were regularly bought and paid for.

The problem with electoral bribery is that bribed voters vote for whoever pays them off rather than based on their perception of the public good. By contrast, political speech – whether financed by corporations and unions or not – is only effective if it persuades the public. And, Mitt Romney’s notorious comments notwithstanding, the overwhelming evidence is that voters generally do not form their political opinions on the basis of narrow material self-interest. The problem with modern voters is not that they are selfish, but that they are often ignorant and irrational. That problem cannot be solved by restricting corporate and union-funded political speech. Obviously, corporate and union-funded speech sometimes seeks to exploit political ignorance. But the same is true of speech funded by the media, political parties, activist groups, and others. In a political environment where the electorate is often ignorant, whoever is allowed to engage in electoral speech has a strong incentive to take advantage of that ignorance.

Second, while electoral bribery was a real problem in ancient Rome, it was not the cause of the Republic’s downfall. Rather, as I discussed here, the standard explanation for that collapse is that, as the Romans built a vast empire that encompassed most of Europe, North Africa, and the Middle East, the government in Rome lost control of its far-flung military forces, which were often more loyal to their generals than to the state. As a result, ambitious generals such as Marius, Sulla, and, finally, Caesar were able to march on Rome and take over the government. To the extent that money was important here, it was not electoral spending but the generals’ ability to cement their troops’ loyalty by rewarding them with plunder, increased pay, and free land – often at public expense.

Goodman and Soni conclude that the real problem in both ancient Rome and modern America is the perception of corruption that undermines the legitimacy of the government, which they imply is in large part caused by Citizens United. But decline in public trust in government long predates Citizens United, and was not even significantly accelerated by it. Moreover, if the government should have the power to suppress speech that creates a perception of corruption, that rationale would justify going far beyond censoring corporate or union-funded campaign speech. It would also justify suppressing speech by groups like Occupy Wall Street, which claim that the political system is rigged to benefit “the 1 percent” at the expense of “the 99 percent.” Speech by politicians, activists, and members of the media who directly claim that the system is corrupt surely contributes to the appearance of corruption at least as much as speech funded by corporations and unions, which often focuses on other issues.

Various arguments can be made against Citizens United, and against the alleged corruption of modern politics more generally. But strained analogies to ancient Rome add little to the debate over these issues.

BLT reports that Justice Samuel Alito addressed criticisms of the Supreme Court’s Citzens United decision in a speech at the Federalist Society’s annual lawyers’ convention in Washington, D.C. on Thursday night.

Alito said arguments can be made for overturning Citizens United, but not the popular one that boils down to one line: Corporations shouldn’t get free speech rights like a person.

“It is pithy, it fits on a bumper sticker, and in fact a variety of bumper stickers are available,” Alito told a crowd of about 1,400 at The Federalist Society’s annual dinner. He cited two: “End Corporate Personhood,” and “Life does not begin at incorporation.”

Then Alito pointed out the same people do not question the First Amendment rights of media corporations in cases like The New York Times Co. v. Sullivan [and] the Pentagon papers case. If corporations did not have free speech rights, newspapers would lose such cases, he said. . . .

Alito said the real issue is whether free speech rights “should be limited to certain preferred corporations, namely those media organizations.” And with the proliferation of the Internet and social media, the line is getting more blurry between individuals and media, he said.

According to the report Alito also recounted some of his experiences at Yale Law School, including his constitutional law class with Charles Reich.

This Friday at 7:30 PM, I will be debating the Citizens United decision and campaign finance issues at my alma mater, Amherst College. The other participants in the debate will be Prof. Larry Lessig (Harvard Law School), John Samples (Cato Institute), and John Medaille (University of Dallas).

I answered some common criticisms of Citizens United here and here.

Here’s one argument I’ve heard with regard to Citizens United, most recently on this thread but also from others: Once upon a time, corporations were seen as having to announce a specific set of purposes in their charters — e.g., to make money by selling cheese — and couldn’t go outside those purposes. If only that rule were reinstated, that would be a constitutional way of avoiding Citizens United, because corporate speech supporting or opposing candidates is outside those purposes.

But I don’t think that will work (even setting aside the substantial practical economic problems that it will cause, given that the flexibility to enter into new lines of business is often vital to corporations, especially when they face international competition). There are basically two variants of this proposal:

1. One variant of the proposal would be for states to issue corporate charters that expressly forbid corporations from speaking about political candidates (or ballot measures or what have you). But I think that would run into the same Citizens United problem. A state has no obligation to grant a corporate charter; but I don’t think it can limit the charter to exclude political advocacy any more than it can tell newspapers, “if you want to use the corporate form, you can’t editorialize for or against candidates,” tell churches, “if you want to organize yourselves as corporations, you can’t proselytize,” tell medical establishments, “if you want to organize yourselves as corporations, you can’t perform abortions,” or tell businesses, “if you want to organize yourselves as corporations, you can’t manufacture or sell guns.”

2. Another variant would be to require that corporations list particular purposes, and then only spend investor money on things that seriously advance those purposes — likely by replacing the “business judgment” rule, which leaves corporations lots of latitude to decide how to spend money, and substituting a tighter rule. In that situation, it’s possible that corporations could then be limited in, say, contributing to a local charity (unless they can show that this really will produce goodwill) or backing an ideological cause when it’s really just the pet cause of the managers (again, unless they can show that this really will help the corporation).

But, oddly enough, any such rule would leave corporations entirely free to do what critics of Citizens United and First Nat’l Bank of Boston v. Bellotti most dislike: speak out in favor of or against candidates or ballot measures, when such speech advances the corporation’s bottom line. After all, if some regulation hurts the corporation’s bottom line, trying to get the regulation repealed (whether through a ballot measure, through lobbying, or through the election of a candidate who supports repeal) is entirely within the corporation’s purpose of benefiting its shareholders. Likewise, of course, for getting regulations enacted. So even a corporation that is rigidly required to serve its purpose of “making money for shareholders by making and selling cheese” would still be free to speak out in favor of pro-cheese candidates, or pro-tort-law-defendant candidates, or pro-employer candidates, or pro-low-tax candidates.

If there is something wrong with corporations spending money to back or oppose candidates or ballot measures, it is not that the corporations generally aren’t truly serving the interests of shareholders, or that they generally are going beyond their purpose of making money in this or that line of business. The objection to such spending is generally that it will be too good at helping the corporation make money: whether by corrupting the candidate, or simply by electing candidates who are already ideologically disposed to support the corporation’s preferences, the corporation will get more financial benefit than it ought to, at the expense of consumers, taxpayers, competitors, and so on.

Those corruption / equality / economic rent-seeking arguments are interesting arguments, which have been amply discussed elsewhere, and which I don’t want to get into here. But I don’t see any force to the argument that the political spending is somehow outside what should be the corporation’s legitimate purpose of making money in some particular line of business. Most of the time, the political spending is all about promoting the corporation’s making money in that very line of business, and requiring the corporation to state its limited purposes in its charter wouldn’t do anything to stop such spending.

This morning I attended a panel at the American Constitution Society conference titled “Citizens United Two Years Later: Money, Politics and Democracy at Stake.” The panel was moderated by Democracy editor Michael Tomasky and featured University of Montana law professor Anthony Johnstone, Fordham law professor Zephyr Teachout, longtime campaign finance activist Fred Wertheimer, founder Democracy 21, Capital University law professor Bradley Smith, Brennan Center constitutional fellow Monica Youn, and Laurence Gold, Associate General Counsel, AFL-CIO. It was an interesting panel, and I’ve summarized the discussion below the fold.

Continue reading ‘ACS Panel on Citizens United’ »

In yesterday’s WSJ, Stanford’s Michael McConnell explained why progressives should not blame the Supreme Court’s Citizens United for Governor Walker’s victory over the union-backed recall effort. If anything, Citizens United helped those trying to oust the controversial governor, as unions put far more money into the recall election than did corporations. Governor Walker may have outspent his opponents, but the bulk of his money came from individuals, not corporations (and he also benefited from a quirk in Wisconsin law allowing unlimited donations).

For the most part . . . Mr. Walker’s direct, big-ticket support came from sources that have been lawful for decades.

His opponent, Milwaukee Mayor Tom Barrett, got his support primarily from labor unions, whose participation was legitimized by Citizens United. Without that decision so demonized by the political left, Mr. Barrett would have been at even more of a financial disadvantage.

Speaking generally, Citizens United is likely to benefit Democrats more than Republicans. Corporations rarely make independent expenditures during candidate elections in their own name, because the ads offend customers, workers and shareholders. And direct corporate contributions to candidates tend to be split more or less evenly between the two parties, largely neutralizing their effect.

But unions have no compunctions against running campaign ads, and almost all of their money goes to Democrats. The Republicans’ advantage, when they have one, comes from rich individual donors—and the right of individuals to make expenditures in support of candidates long predates Citizens United.

Co-blogger Eugene Volokh has an excellent post on how the proposed People’s Rights Amendment threatens freedom of speech. But it’s important to recognize that the proposal goes far beyond denying free speech rights to entities organized as corporations. It would deny them all other constitutional rights as well. Section 1 of the proposed amendment states that the “the rights protected by this Constitution” are limited to “the rights of natural persons.” Notice that this is not limited to free speech rights or even to First Amendment rights generally. Section 2 emphasizes that “People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state.” Notice that this is not limited to for-profit corporations lobbying for their narrow self-interest. It applies to all corporations of any kind, including nonprofits, media corporations, churches, and others.

Thus, the PRA would deny all constitutional rights to all entities organized as corporations. If the Amendment passes, government would be free to search corporate-owned premises at will, restrict freedom of religion at houses of worship owned by corporate entities (which includes most churches), condemn corporate-owned property for private uses and without paying compensation, and so on. This result is consistent with the logic of those who criticize the Citizens United decision on the grounds that corporations don’t have First Amendment rights because they aren’t “real” people. If this reasoning is correct with respect to the First Amendment, it surely applies to other constitutional rights too. But even dedicated supporters of campaign finance regulations might wonder whether those laws are so wonderful that their protection justifies the sweeping restrictions on all other constitutional rights embodied in the People’s Rights Amendment.

Unfortunately, this dangerous result is not precluded by Section 3 of the PRA, which states that “Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people.” Section protects the rights of “the people.” The preceding Section 2 stated that “People, person, or persons as used in this Constitution does not include corporations.” Presumably, that rule applies to the use of “people” Section 3, which there also does “not include corporations.” If, on the other hand, the reference to “people” in Section 3 does apply to corporations, then the entire PRA would have no effect at all, since Section 3 would preserve from limitation any constitutional rights to which corporations were entitled before the PRA.

Another possible way to mitigate the effects of the PRA would be for courts to rule that the rights of corporations are really just the rights of the natural persons who own them. If so, people organized as corporations qualify as “natural” persons too. I think that is the correct interpretation of the status of “corporate” rights under our present Constitution. But adopting this idea as an interpretation of the PRA would completely undermine the whole point of the Amendment, which is precisely to deny constitutional rights to organizations utilizing the corporate form.

UPDATE: Before writing this post, I had not noticed that Eugene had made some of the same points in this April 20 post. I apologize for any excessive duplication.

I blogged last week about the People’s Rights Amendment, which has been introduced by Congressman Jim McGovern. Among other things, I argued, the Amendment would mean that Congress and state and local legislatures would be free to restrict what’s printed by newspapers that are organized as corporations. The National Review Online took the same view. Now the backers of the Amendment are arguing that the National Review say that’s a “false claim[]” (thanks to Opher Banarie for the pointer):

Your editorial also makes false claims that the People’s Rights Amendment would adversely impact freedom of the press. These claims are clearly contradicted by section 3 of the amendment, which reads:

Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

Well, let’s look at the whole text of the suggested Amendment:

Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulations as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Section 3. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

So under section 1, all constitutional rights, including the First Amendment, are limited to “natural persons.” Under section 2, that doesn’t include corporations. And section 3 preserves the “people‘s rights of freedom of speech, freedom of the press, [and] free exercise of religion” (emphasis added), which — given section 2 — excludes the rights of newspapers (and similar organizations) organized as corporations. So if the People’s Rights Amendment were enacted, Congress would have an entirely free hand to censor what is published in newspapers organized as corporations, what is published by book publishers organized as corporations, what is created by movie studios that are organized as corporations, what is distributed by music companies that are organized as corporations, and so on.

Now this would have two effects.

First, any media organization that wants to be free would thus have to give up the benefits of the corporate form, and will have to organized as a partnership. This will make it much harder for those media organizations to raise operating capital, dealing with changes in ownership as partners die or leave, and the like.

Second, those media organizations that choose to organize as a corporation would have huge practical competitive benefits over organizations that choose to organize as partnerships. As a result, the normal competitive process will drive most non-corporate-owned large media organizations out of business (or at least will make them much smaller and less effective at producing the sort of speech that requires a good deal of money), and will give corporate-owned large media organizations the overwhelming majority of the market share. And then Congress and state and local legislatures would have a free hand to censor those organizations as much as they can (at least up to the point where the economic cost of the censorship would be large enough to outweigh the economic benefit of the corporate form).

Would that “adversely impact freedom of the press”? Or was that just a “false claim[]” on the National Review Online’s part (and on my part)?

That’s the People’s Rights Amendment, introduced by Congressman Jim McGovern:

Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Section 3. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

So just as Congress could therefore ban the speech of nonmedia business corporations, it could ban publications by corporate-run newspapers and magazines — which I think includes nearly all such newspapers and magazines in the country (and for good reason, since organizing a major publications as a partnership or sole proprietorship would make it much harder for it to get investors and to operate). Nor does this proposal leave room for the possibility, in my view dubious, that the Free Press Clause would protect newspapers organized by corporations but not other corporations that want to use mass communications technology. Section 3 makes clear that the preservation of the “freedom of the press” applies only to “the people,” and section 2 expressly provides that corporations aren’t protected as “the people.”

Congress could also ban the speech and religious practice of most churches, which are generally organized as corporation. It could ban the speech of nonprofit organizations that are organized as corporations. (Congressman McGovern confirms this: “My ‘People’s Rights Amendment’ is simple and straightforward. It would make clear that all corporate entities — for-profit and non-profit alike — are not people with constitutional rights. It treats all corporations, including incorporated unions and non-profits, in the same way: as artificial creatures of the state that we the people govern, not the other way around.”) Congress could ban speech about elections and any other speech, whether about religion, politics, or anything else. It could also ban speech in viewpoint-based ways.

State legislatures and local governments could do the same. All of them could seize corporate property without providing compensation, and without providing due process. All corporate entities would be stripped of all constitutional rights. Quite a proposal; I blogged more generally about this issue here, but it seems to me that simply listing the consequences of Congressman McGovern’s proposal largely suffices to explain its flaws.

Officials in the Siberian city of Barnaul recently banned an anti-government protest using toys on the specious justification that “toys, especially imported toys, are not only not citizens of Russia but they are not even people” [HT: Julie Ershadi]:

There hadn’t been many – indeed any – rallies like it before in Russia. Last month saw dozens of toys, from teddy bears to Lego figurines, standing out in the snow of a Siberian city with banners complaining about corruption and electoral malpractice.

At the time, Russian authorities in Barnaul declared the protest “an unsanctioned public event”.

Now a petition to hold another protest featuring 100 Kinder Surprise toys, 100 Lego people, 20 model soldiers, 15 soft toys and 10 toy cars has been rejected because the toys have been deemed not to be “citizens of Russia”.

“As you understand, toys, especially imported toys, are not only not citizens of Russia but they are not even people,” Andrei Lyapunov, a spokesman for Barnaul, told local media.

It’s easy to see the flaw in Lyapunov’s reasoning. Yes, toys are not people. But owners of toys are. The toy protest is an exercise of the owners’ rights to freedom of expression, not the rights of the toys themselves. Banning a toy protest because toys are not people is much like banning the publication of antigovernment articles in a newspaper on the grounds that newspapers are not people.

Unfortunately, such dubious justifications for restricting political speech are not limited to Russia. Right here in the United States, many claim that the government should have a free hand in restricting political speech by corporations because corporations aren’t people. As I explained here, they are making exactly the same mistake as Lyapunov.

UPDATE: Some commenters are confusing the “corporations are not people” argument for allowing government to restrict corporate speech with the very different claim that the state should be allowed to do so because corporations are state-created legal entities. I’m well aware of the latter argument, and have answered it in some detail here. But it is distinct from the one discussed in this post. There are a variety of different arguments for restricting corporate speech only one of which is closely analogous to Lyapunov’s justification for banning the toy protest. However, that one is extremely common – made by people ranging from Supreme Court justices to Occupy Wall Street protestors – and it is important to understand its flaws.

Following Citizens United, I heard many people argue that the Court was wrong because corporations should not be seen as having First Amendment rights — not just that they do have First Amendment rights but that there’s some special compelling interest that justifies restricting corporate speech about candidates, but that corporations aren’t people and therefore can’t have First Amendment rights at all. (UPDATE: I don’t agree with this, for reasons that include those briefly sketched here, but I set those arguments aside for now.) Let me then ask this question of our readers who take this view:

Today, Google’s U.S. query page features an anti-Stop-Online-Piracy-Act statement from Google. Say that Congress concludes that it’s unfair for Google to be able to speak so broadly, in a way that ordinary Americans (including ordinary Congressmen) generally can’t. Congress therefore enacts a statute banning all corporations from spending their money — and therefore banning them from speaking — in support of or opposition to any statute. What would you say about such a statute? Again, I limit the question to those who think corporations generally lack First Amendment rights.

(1) Perfectly constitutional, because corporations aren’t people, and thus have no First Amendment rights.

(2) Unconstitutional as applied to Google, because media corporations do have First Amendment rights, though other corporations don’t, and Google should be seen as a media corporation, even as to its query page rather than as to news.google.com and the like.

(3) Unconstitutional, because though corporations aren’t people and thus have no First Amendment rights for purposes of advertising in support of or opposition to candidates, they are people and thus do have First Amendment rights for purposes of other speech.

(4) Unconstitutional, for some other reason.

My article, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Penn. L. Rev. 459 (2011), available in its full PDF form here, has just been published; here is the Introduction:

“[T]he freedom ... of the press” specially protects the press as an industry, which is to say newspapers, television stations, and the like — so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, Powell, and Douglas. This argument is made in many contexts: election-related speech, libel law, the journalist’s privilege, access to government property, and more.

Some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press, and not to book authors, political advertisers, writers of letters to the editor, professors who post material on their websites, or people who are interviewed by newspaper reporters. Sometimes, this argument is used to support weaker protection for non-institutional-press speakers than is already given to institutional-press speakers. At other times, it is used to support greater protection for institutional-press speakers than they already get. The argument in the latter set of cases is that the greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than if the greater protection were extended to all speakers.

But other judges and scholars — including the Citizens United majority and Justice Brennan — have argued that the “freedom ... of the press” does not protect the press-as-industry, but rather protects everyone’s use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters.

Under this approach, the First Amendment rights of the institutional press and of other speakers rise and fall together. Sometimes, this approach is used to support protection for non-institutional-press speakers and to resist calls for lowering that protection below the level offered to institutional-press speakers. At other times, it is used to rebut demands for greater protection: Extending such protection to all speakers, the argument goes, would excessively undermine rival government interests — yet allowing such protection only for the institutional press would improperly give the institutional press special rights.

Both sides in the debate often appeal at least partly to the constitutional text and its presumed original meaning. The words “the press” in the First Amendment must mean the institutional press, says one side. The words must mean press-as-technology, says the other. Citizens United is unlikely to settle the question, given how sharply the four dissenters and many outside commentators have disagreed with the majority. So who is right? What light does the “history” referred to by the Citizens United dissent shed on the “text” and the Framers’ “purpose”?

The answer, it turns out, is that people during the Framing era likely understood the text as fitting the press-as-technology model — as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry. The text was likely not understood as treating the press-as-industry differently from other people who wanted to rent or borrow the press-as-technology on an occasional basis.

Parts I, II, and III set forth the evidence on this subject from the Framing era and the surrounding decades. Part I discusses, among other things, early reference works and state constitutions that described the freedom of the press as a right of “every freeman,” “every man,” or “every citizen.” This right was generally seen as the right to publish using mass technology, as opposed to the freedom of speech, which was seen at the time as focusing more on in-person speech. Part II discusses the Framing-era understanding that the freedom of the press extended to authors of books and pamphlets — authors who were generally not members of the press-as-industry, though they did use the press as technology. Part III goes on to discuss fifteen cases from 1784 to 1840 that treated the freedom of the press as extending equally to all people who used press technology, and not just to members of the press-as-industry. To my knowledge, these cases have not been discussed before in this context. Each of the sources standing alone may not be dispositive. But put together, they point powerfully toward the press-as-technology reading, under which all users of mass communications technologies have the same freedom of the press.

Part IV turns to how the “freedom ... of the press” was understood around 1868, when the Fourteenth Amendment was ratified. Much recent scholarship has suggested that originalist analyses of Bill of Rights provisions applied to the states via the Fourteenth Amendment should consider the original understanding as of 1868 in addition to that of 1791. And it turns out that around 1868, it was even clearer that the “freedom ... of the press” secured a right to use the press-astechnology, with no special protection for the press-as-industry. Part V offers evidence that this remained true from 1880 to 1930.

Part VI then looks at how the Supreme Court has understood “freedom ... of the press” since 1931, the first year that the Court struck down government action on First Amendment grounds. Throughout that time, the press-as-technology view has continued to be dominant. Many Supreme Court cases have officially endorsed this view. No Supreme Court case has rejected this view, though some cases have suggested the question remains open.

Part VII turns to how the “freedom ... of the press” has been understood by lower courts since 1931, and concludes that the press-astechnology view has been dominant there as well. The first lower court decisions I could find adopting the press-as-industry view did not appear until the 1970s. Even since then, only a handful of cases have adopted such a view, and many more have rejected it. (The press-asindustry cases that this Part identifies could also be helpful as test cases for any future work that discusses the policy advantages and disadvantages of the press-as-industry model.)

None of the evidence I describe specifically deals with corporations, the particular speakers involved in Citizens United, but it does show that the institutional media has historically been seen as the equal of other people and organizations for purposes of the “freedom ... of the press.” The constitutional protections offered to the institutional media have long been understood — in the early republic, around 1868, from 1868 to 1970, and in the great bulk of cases since 1970 as well — as being no greater than those offered to others.

Finally, the Conclusion briefly discusses what effect this analysis should have on the Court’s interpretation of the Free Press Clause. Of course, text, original meaning, tradition, and precedent have never been the Supreme Court’s sole guides. But any calls for specially protecting the press-as-industry have to look to sources other than text, original meaning, tradition, and precedent for support.

If you’re interested in the subject, whether as to campaign speech restrictions, libel law, the newgatherer’s privilege, or other topics, have a look at the article.

In today’s Western Tradition Partnership, Inc. v. Attorney General, the Montana Supreme Court upheld a ban on corporate expenditures to speak in support of or opposition to political candidates — pretty much the same sort of ban that the United States Supreme Court struck down in Citizens United v. FEC. The majority argues that Citizens United is distinguishable, because of Montana’s “unique” interests stemming from its history, its size, and its political culture. Here’s what strikes me as a key excerpt, though both the majority and the dissent are long, and no short excerpt can do justice to them:

The question then, [given the long Montana history of corporate influence over politics that the court set forth -EV], is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because the shadowy backers of WTP seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not. Issues of corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government. Clearly Montana has unique and compelling interests to protect through preservation of this statute.

While Montana has a clear interest in preserving the integrity of its electoral process, it also has an interest in encouraging the full participation of the Montana electorate. The unrefuted evidence submitted by the State in the District Court through the affidavit of Edwin Bender demonstrates that individual voter contributions are diminished from 48% of the total raised by candidates in states where a corporate spending ban has been in place to 23% of the total raised by candidates in states that permit unlimited corporate spending. The point is illustrative of Montana, a state where citizens generally support candidates with modest campaign donations. In the case of ballot issues, where corporations may make unlimited donations, the characteristics of donors are markedly different from those who give to candidates. In 2004, for example, 97 institutional donors gave 95% of the total money raised in ballot initiative campaigns, while 760 individual donors accounted for the remaining 5%. Similarly, in 2008, 34 institutional donors gave 95% of the total money donated to ballot campaigns. Moreover, unlimited corporate money would irrevocably change the dynamic of local Montana political office races, which have historically been characterized by the low-dollar, broadbased campaigns run by Montana candidates. At present, the individual contribution limit for Montana House, Senate and District Court races is $160, and for Supreme Court elections it is $310. With the infusion of unlimited corporate money in support of or opposition to a targeted candidate, the average citizen candidate would be unable to compete against the corporate-sponsored candidate, and Montana citizens, who for over 100 years have made their modest election contributions meaningfully count would be effectively shut out of the process....

Finally, § 13-35-227(1), MCA, is narrowly tailored to meet its objectives.... Unlike the Federal law PACs considered in Citizens United, under Montana law political committees are easy to establish and easy to use to make independent expenditures for political speech. As the Bender affidavit submitted by the State in District Court confirms, corporate PACs can make unlimited independent expenditures on behalf of candidates. The difference then is that under Montana law the PAC has to comply with Montana’s disclosure and reporting laws. And as noted earlier, corporations are allowed to contribute to ballot issues in Montana, which is a significant distinction because ballot issues often have a direct impact on corporate business activities within Montana but present less danger of corruptive influences that have concerned Montana voters since 1912. The statute only addresses contributions regarding candidates for state political office.

(There is also a good deal of discussion about the lack of burden on these particular plaintiffs, but I focus here on the court’s broader rationale, which applies to all corporations that want to speak about candidates.) But the dissent disagrees; here is an excerpt:

Having considered the matter, I believe the Montana Attorney General has identified some very compelling reasons for limiting corporate expenditures in Montana’s political process. The problem, however, is that regardless of how persuasive I may think the Attorney General’s justifications are, the Supreme Court has already rebuffed each and every one of them. Accordingly, as much as I would like to rule in favor of the State, I cannot in good faith do so.... I cannot agree that [the majority's] “Montana is unique” rationale is consistent with Citizens United....

[W]hat has happened here is essentially this: The Supreme Court in Citizens United ... rejected several asserted governmental interests; and this Court has now come along, retrieved those interests from the garbage can, dusted them off, slapped a “Made in Montana” sticker on them, and held them up as grounds for sustaining a patently unconstitutional state statute....

My sense is that the disagreement with Citizens United is so striking that it is likely that the Supreme Court will agree to hear the case, and will reverse the Montana Supreme Court’s decision.

I blogged about the Sen. Sanders / Reps. Deutch, DeFazio, Hastings, McDermott proposed constitutional amendment last week, but an e-mail from a reader led me to one other problem with the amendment. The amendment, you may recall, reads:

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

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

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

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

What the amendment would do with the speech of nonprofits is not clear: Section 1 says constitutional rights “are the rights of natural persons” — which doesn’t include groups such as the ACLU, the NRA, the NAACP, and so on — but at the same time says that they “do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests,” a category that also doesn’t include such non-business-related nonprofits. So the proposal is ambiguous as to those groups.

But non-profits that are “established ... to promote business interests” — even when they are not funded by business corporations, but only by private individuals — clearly would be denied constitutional rights by the proposed amendment. So a non-profit aimed at promoting “business interests” would be stripped of the freedom of speech and of the press (and other rights), but a non-profit aimed at opposing those same business interests would retain those rights.

Of course, section 4 specifically says that the government “shall have the power to regulate and set limits on all election ... expenditures,” with no exception for nonprofit corporations, pro-business or otherwise — so maybe after all the amendment would equally strip all nonprofits of the right to speak about elections. The government would simply have to set a $100 limit on nonprofits’ election expenditures, and that would strip them of the ability to send out mailings, buy newspaper ads, buy billboards, and even spend more than $100 in employee salaries to maintain Web sites. At least that would be equality, albeit equality of speech suppression.

But as to non-election-related speech, pro-business nonprofits would be stripped of constitutional rights more generally by section 1, while non-pro-business nonprofits would presumably still have First Amendment rights (albeit limited as to election-related speech by section 4).

UPDATE: The original post on how the amendment’s text applies to restrict newspapers and other media organizations is here.

That’s one of the effects of HJR 90, proposed by Reps. Theodore Deutch, Peter DeFazio, Alcee Hastings, and Jim McDermott, and a similar Senate proposal by Sen. Bernie Sanders:

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

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

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

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

Nearly all newspapers, TV stations, cable networks, and radio stations (except of course for nonprofits such as NPR) are organized as corporations or other entities established for business purposes. Under section 3, they “shall be prohibited” from making expenditures “in any election of any candidate ... or the vote upon any ballot measure.” Since to write or print or broadcast anything, newspapers, networks, and broadcasters must spend money, this would ban — not just authorize Congress to ban, but itself ban — editorials supporting or opposing a candidate or a ballot measure. (“Shall be” in the Constitution is generally language that indicates that something becomes the law without further Congressional action, e.g., “This Constitution ... shall be the supreme Law of the Land” and “The executive Power shall be vested in a President of the United States of America.”)

To be sure, section 2 does say that such entities are “subject to regulation ... through the legislative process so long as such regulations ... do not limit the freedom of the press.” But section 1 tells us that business entities do not have constitutional rights; presumably, then, the freedom of the press (one of “the rights protected by the Constitution”) doesn’t extend to them. And since section 2 applies “the freedom of the press” just to regulations “through the legislative process,” and section 3 prohibits expenditures through the constitution itself, it appears that section 2′s supposed protection for the liberty of the press doesn’t even purport to limit section 3′s prohibition. Certainly nothing in section 3′s flat ban has any proviso saving the “freedom of the press.”

Now perhaps one could argue that, notwithstanding sections 1 and section 3, business entities retain the “freedom of the press” even though they lose all other constitutional rights. But, as I’ve discussed in considerable detail in this article, the “freedom of the press” has throughout American history meant the freedom of all to use communications technology, not a freedom limited to any specific industry. So if business entities do still have “freedom of the press” rights, which leaves the New York Times free to exercise such rights, then other business corporations would have the same rights as well, including the right to rent space or time in newspapers and television and radio programs to express their views, much as newspapers, cable networks, and broadcasters have the right to use such space or time.

On top of that, the proposal would mean that any government could take corporate property — whether of big businesses or small closely held corporations — without paying any compensation at all, could take corporate property without due process, and more. That would be quite a constitutional amendment.