Strangeness in Citizens United case
I could see an argument (were this a State case) that a corporation isn't a "citizen" for privilege or immunities purposes, or a "person" for due process purposes. I could even see (altho I have problems with it) an argument that a corporation is entitled to lessened First Amendment protections. But from fn. 55 of Stevens' dissent:
In normal usage then, as now, the term “speech” referred to oral communications by individuals. See, e.g., [various citations]. Given that corporations were conceived of as artificial entities and do not have the technical capacity to “speak,” the burden of establishing that the Framers and ratifiers understood “the freedom of speech” to encompass corporate speech is, I believe, far heavier than the majority acknowledges.
But (1) this would mean that "symbolic speech," such as protests and flag-burning, have zero constitutional protection and (2) First Amendment cases involving corporations -- New York Times v. Sullivan (limits on defamation suits by public officials and figures) and NAACP v. Alabama (right of a controversial group to keep private its members names) were entirely wrong.
Maybe Stevens is just a senile old coot. That would explain a lot.
Posted by: Sean Sorrentino at January 22, 2010 08:13 PM
Too bad he couldn't retire on Bush's watch...but then Bush would probably have felt obliged to nominate a lib, and if not the Dems would have thrown spit-fits, tantrums and filibustered til he did.
Posted by: doug in colorado at January 22, 2010 09:12 PM
I've said before that I have zero respect for Steven's legal skills based on his concept that specifically targeting Yamamoto during World War II was an "extrajudicial killing" that caused him to question the appropriateness of the death penalty. He's an ideologue, not a jurist. His decisions are driven by his personal beliefs, not the law.
Posted by: James at January 22, 2010 11:59 PM
I would have no problem with a law limiting speech (however you wanted to define it) to actual human beings.
Except, that that opens a big can of worms. If only people were to have free speech then we would have the government requiring that any speech they wanted to control be proven to have no money or support from a business, corporation or union. So we end up, as now, with enormously complex laws and rules determining who may speak, how and when.
Much better to have no controls at all.
Posted by: Tom Bri at January 23, 2010 12:20 AM
I don't know if this was addressed in the briefs, oral argument, or the decision, but the fact is that under a wide range of federal and state statutes, corporations are explicitly included in the definition of "person." The CERCLA is the example I deal with the most. If a corporation is a person for the purposes of the government suing the heck out of it, a corporation ought to be enough of a person to have free speech rights.
Posted by: Letalis Maximus, Esq. at January 23, 2010 10:18 AM
Regarding Stevens, well, its a fool who looks for logic in the chambers of the human heart. And that, in a nutshell is the problem with what passes for "jurisprudential logic" in the eyes of those who tend to agree with Stevens. He, and they, will grasp at just about any straw, split any hair, in order to "support" the particular, case specific, outcome he emotionally favors. The fact that his arguments won't hold water or withstand logical or precedential scrutiny is irrelevant. His is a nation of men, not laws.
Posted by: Letalis Maximus, Esq. at January 23, 2010 10:22 AM
While the Heller minority ignored the 2nd Amendment, the Heller majority adopted the absurdly circular "in common use" test. They'll all ignore the law, based on any absurdity, if it suits them.
Posted by: Critic at January 23, 2010 01:49 PM
In the 2000 Election debates, Al Gore said the Constitution was "a living document subject to interpretation." After the election when Florida was being contested, he said, the Constitution was very explicit and "should be followed as it was written." Nobody called him on the change in his postion, by the way.
What did he mean? Well, inside the Beltway there is one Constitution for governance. Outside the Beltway, there's another Constitution "for the people." Inside the Beltway, the lines are brightly drawn. If Congress steps onto Executive turf, they get blasted. If the Executive steps into Judicial turf, they get blasted.
The only place left to take power from is the Constitution outside the Beltway. Nobody represents the People anymore. They represent their personal interests in the "power structure."
The Supreme Court WILL NEVER GRANT THE PEOPLE THE RIGHT TO OVERTHROW THEIR GOVERNMENT BY FORCE OF ARMS. Nope. Un-uh. Ain't gonna happen. They're going to cover their asses to make sure they get their paycheck and their pension.
They're all in it together. It's us against them.
SCOTUS will grant us just enough "rights" until things get uncomfortable inside the beltway. Then you can kiss it bye-bye.
Critic, if that's what you mean by "ignore the law", then I'm with you. Without the governemt FEARING the People, the Constitution will be treated as a gifting of human rights instead of a restatement of Individual Rights.
Posted by: Jim D. at January 23, 2010 03:23 PM
So if he wants to argue that, how does he square it with the freedom to associate? Take the NRA, a corporation formed by individual members seeking to combine their assets to strengthen their voice. Most people think Exxon when they hear "corporation," but in a case like this, I hear a long line of "corporations" formed to get a point accross.
Posted by: Jim at January 24, 2010 07:09 AM
"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
Looks like the preable to a corporation to me. Just have to remind the last few generations of what that "corporation" stands for.
Posted by: RKM at January 24, 2010 04:28 PM
The fiction of a corporation as a legal person creates all sorts of absurdities, not the least of which is my own pet theory that I should be able to use the carpool lane whenever I travel on company business, as my corporate employer and I are two "persons" rather than one. That said, I think the whole corporations vs. individuals debate in the context of free speech misses the point. Corporations may not be individuals, and they may not be owned directly by individuals, but if you trace them far enough up the chain, eventually you'll end up with real, live, breathing individuals. And the question should be (1) do those individuals have a right to speak freely, and (2) if so, can that right be conditioned on their decision to form a corporation? Because that's one hefty tool of censorship if it can be.
Posted by: Xrlq at January 24, 2010 05:49 PM