Jens 'n' Frens
Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

"A strong conviction that something must be done is the parent of many bad measures."
  -- Daniel Webster

Friday, January 22, 2010 :::

Wilkinson, on the political speech case.

The suggestion that corporations shouldn't have free speech rights because they aren't people would be more compelling if the first amendment said something like "people have a right to free speech" instead of
Congress shall make no law ... abridging the freedom of speech ...
In this case, Congress has clearly made a law abridging the freedom of speech. And yet I think it stretches it a bit to suppose that any action with communicative content ipso facto has to be legal — which the court seems, on an opportunistic basis, to believe. Does a law against assassinating the President curtail your ability to send messages? Well, at the margin, I guess so, and I'm willing to buy certain "time, place, and manner" doctrine even if an excessively literal interpretation would seem not to allow such a law. (There are slippery slopes here, I suppose; I have a book on Constitutional interpretation by Joseph Story, Supreme Court justice from 1811 to 1845, who comments in one passage that of course it would be silly to imagine that the first amendment precludes Congress from promoting the Christian religion.) I think more of a rational-basis principle makes sense here; Congress can't seek to go out to abridge free speech, but if there's a clear non-abridging motive that happens to have a minor, ancillary effect on one particular manner of communicating, let that go.

In this case — quoting from Wilkinson —
This was a case about whether the state can suppress the distribution of an unflattering documentary about a powerful political candidate produced by a small group of private citizens. The crazy thing to me is that anyone ever thought that such a rule was not in blatant violation of the First Amendment.
It's hard, in fact, to imagine a rule that would incidentally preclude this activity none of the primary effects of which would be to suppress free speech. Sorry, folks; what these people are doing is constitutionally protected.

What I would be willing to buy, in terms of corporate speech more generally, would be a shareholder-rights sort of bill. A corporation can set up a captive PAC, and shareholders and employees may contribute, and it may communicate as it likes, but management can't bundle its other business activities with its political activities — it can force you to invest in both the batteries division and the razor blades division, or in neither, but it can't force you to choose between both and political activity, or neither. In any case, it at least seems a lot more plausible to me than any other explanation I've heard of for why Congress could limit corporate speech per se.

Incidentally, I expect few publicly traded corporations to exercise this right, largely because a lot of potential investors, customers, and to some extent employees would be likely to react negatively to it. You're going to see labor unions make greater use of this; most labor union members are a lot more captive to the labor union than anyone is to a corporation.


::: posted by dWj at 3:43 PM

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Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

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