Ok. Back to my question: Give me a rule that would prevent Citizens United, but neither cripples BoingBoing nor creates just another loophole to be exploited by Mutant Citizens United.
I am not saying it can’t be done. I’m saying that it’s not nearly as simple as people think.
The rule is the first amendment of the US constitution (the Charter of Rights and Freedoms in Canada), which does not apply to corporations.
Give me an example of a situation where this would actually be muddy. Like, what law are you concerned the government might pass?
I’m not sure I entirely follow. But let me try.
Scenario 1: You make a political video to share. 1st A protected?
Scenario 2: You make a political video to sell. 1st A protected?
Scenario 3: You and a friend make a political video to share. 1st A protected?
Scenario 4: You and a friend make a political video to sell. 1st A protected?
Scenario 5: You and a partner create an organization to make a political video to share. 1st A?
Scenario 6: You and a partner create an organization to make a political video to sell. 1st A?
Now consider different content: about a candidate, about global warming, about union organization, about voting rights, about religion.
You’re thinking (sorry if I’m assuming wrong) there can be a law that doesn’t violate 1st amendment (speech, association, religion, any of it) for any of these 6. And as a bonus, targets a specific type of organization in 5 and 6. The reasoning being that you can still exercise the same rights individually.
It might fly. Next step is to draft that law and have a look at it.
So you’re saying the 1st amendment shouldn’t apply to CPB, PBS, or NPR? Or the New York Times? The Onion? The Nation? Planned Parenthood? They are all corporations.
Still want me to think up a law?
Most of your examples are the press. I’ll refer to the amendment:
The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.
They don’t really need the freedom of expression provision. (And if they had the freedom of expression provision they wouldn’t need the freedom of the press provision, but the authors included it, which goes to my point)
And yes, Planned Parenthood, as a corporation, would not have freedom of expression or of religion under my proposal.
Again, what law are you worried that the government will pass? Because that’s how freedoms work, they are used to overturn bad laws. Without a law to examine you can’t just throw out the idea that something is “first amendment protected”. Anything may be protected in one case and not in another, depending on the specific law. After all, none of the examples you’ve given would be protected from copyright law if they violated it.
In Canada, the directors of a corporation can be criminally charged for something willfully done that causes harm to workers or others. Look up Westray Mining Disaster.
Here’s the change in Canadian corporate law that occurred; “When the so-called Westray Bill became federal law in 2004, it gave police and prosecutor new rules for attributing criminal liability to corporations and their representatives when workers are injured or killed on the job.”
… You say it. McCain-Feingold said it. Individual shareholders in a corporation remained entirely free to make what ever contributions or videos were otherwise permitted by law, but corporations, when acting in their corporate capacity, had additional restrictions placed on them. Courts are well equipped to apply that distinction.
That’s consistent with a plausible and defensible reading of the First Amendment under which only natural persons have First Amendment rights, though like the reading the Court actually adopted, it leads to some unwanted consequences (like Planned Parenthood or the ACLU losing First Amendment rights). The question whether the thing can be done (which is the question I understand you to be asking) is separate from the question of which of the two readings represents the better policy (which is the question you appear to be folding into question 1 elsewhere).
Hey, you’re the one who said the 1st amendment wouldn’t apply to corporations. Every single example I gave is a corporation. But I take it you only meant a particular part of the first amendment wouldn’t apply. Press corporations wouldn’t be restricted. I’m sure Citizens United News Corporation won’t mind. Not sure the law would survive constitutional review, much less accomplish its goal.
That’s been my part of my point. It’s not so simple to divide the sheep from the goats if all you focus on is what kind of organization is allowed to say what.
Corporate free speech rights are severely limited by the government already. Megacorp can run an ad saying their new drug Snakeoilapam cures cancer, but if they haven’t proven it to the satisfaction of the FDA, the FDA can and will block the ad, fine the company, jail executives, even issue a consent decree to put a padlock on the doors of the manufacturing plant that makes the drug.
As an individual, I can say anything I want about Snakeoilapam. I’m only going to get in trouble if I’m doing so as an employee, contractor, or other kind of agent of Megacorp. Even then, the FDA is going to go after Megacorp primarily.
Tougher to prove, but with equal enforcement cred, is just plain fraudulent claims by any company.
But change your hypothetical to being about an individual who makes and sells Snakeoilapam through his Etsy shop. I’m for sure not a food-and-drug lawyer, but it would be odd if an individual could not still run afoul of federal law and FDA regs by making unsubstantiated claims about drugs the individual makes. Similar with generally fraudulent claims: individual natural persons can absolutely be prosecuted for misrepresentations that others rely on to their detriment.
I’d say that a fair interpretation of what I’m saying. I do think something can and should be done. No clue what or how. But I’m pretty sure all the proposals I’ve heard are a dead end. It can lead to restricting speech we want to remain free and probably still leave gaping loopholes.
I’m no going to say “great idea” if it’s not. I’m going to say “Do better.” Pessimistic encouragement, not repudiation of the goal.
You’re half right. I work with FDA regulated products. The FDA regulates marketing claims. In theory, you could get in just as much trouble despite having no connection to Megacorp. You’re right, they do target companies more. But even there, size is irrelevant. I’ve seen them go after a one man company and big pharma.
I’m not either, but I’m very familiar with the business. From my understanding, the individual wouldn’t get in trouble under the Food, Drug, and Cosmetics act but rather, if they were encouraging people to take Snakeoilapam for cancer, as practicing medicine without a license. Generally, FDA has some difficulty going after individuals unless they are also a company, and it’s one of the reasons why dodgy nutriceutical companies are often structured as multi-level marketing orgs (a.k.a. Ponzi schemes). When each person selling the stuff is a home-based independent contractor, and the parent company makes no claims about the product, it’s tough to enforce false claims made by the individuals.
That’s more than half right, then. My point is that they go after companies. They don’t go after individual persons, because their enforcement power is mostly related to corporations and how they market (and import/export) drugs & medical devices.
I’m not sure that’s the case, but in any event the DOJ could absolutely charge an individual with violating 28 USC 331 (which is the FDCA’s forbidden acts provision) and seek a prison term or fine against that individual under 28 USC 333. That latter section pretty clearly contemplates individual violation of the laws because corporations can’t be imprisoned.
Regardless of who enforces the law, the point is that the individual and the corporation aren’t really facing distinguishable labeling requirements such that you could say the individual enjoyed more First Amendment protection than the corporation for misbranding drugs.
That’s irritating. As if I’m moving goalposts or trying to be tricky? My initial statement was that corporations are not people. The first amendment protects people and it protects the press. My only suggestion is to apply the law as it was written.
The individuals in all your scenarii have the right to express themselves under the first amendment. They can say what they like, regardless of who they team up with to say it.
If they spend money on making the video, and distribute it in a way that serves a political campaign, that money – not the speech – might be regarded as an illegal campaign contribution.
The Citizens United decision did not change the fact that corporations can’t donate to political campaigns, but it held that this kind of indirect spending couldn’t be counted as a donation. The “corporate personhood” argument was mentioned in the course of the shameless, flailing justification for this, but they could equally well have argued it was the speech of the individual filmmakers being suppressed. Except that would only protect the filmmakers, not the donors who funded the film.
Corporations don’t need rights of their own, because every actual mouth a corporation can speak from already has its own, individual right to free speech. “Corporate free speech” is a euphemism for the dubious claim that the First Amendment protects spending on propaganda in the same way that it protects speech itself. Because if that is true, there can be no meaningful limit on campaign spending.
Didn’t think either one of you. Just thought you were playing a little fast and loose. Regardless, if you restrict free speech of corporations, that impacts lots of organizations I hope you would not like to (shut up ACLU, Southern Poverty Law Center, etc). At the same time, what’s to stop the corporations you want to stop from labeling themselves press?
You wanted a bad example… If you still want one from me, I can cut and paste yours if you like.
if it ever happens, for sure texas will do it, we’ll execute anyone.
What’s to stop them from right now declaring themselves congress and passing their own laws? Words mean something.
My example is literally the first amendment. You seem to be saying that’s an example of bad a law unless corporations are regarded as people under it. I find the first-amendment-in-the-abstract talk empty. You can’t do first amendment analysis without a set of facts.
But let’s say the government passes the Fuck the ACLU Act that says that the ACLU is no longer allowed to publish anything or communicate in public. I’m saying that law should not be ruled unconstitutional under the first amendment, that expecting the first amendment to stop that law is wrong because corporations don’t have free speech.
And what if the government simply pulled the ACLU’s incorporation papers and made them no longer exist? Would the first amendment help with that? Obviously it would not. It turns out the government can do all kinds of things and freedom of speech is not the remedy for all of them.
Cool, now you are getting to the root of the problem. It’s not corporations per se. It’s money.
