By Dan Kennedy • The press, politics, technology, culture and other passions

Good for speech, bad for democracy?

My heart is telling me one thing and my head another following the U.S. Supreme Court’s decision to remove political-speech restrictions on corporations and, by implication, labor unions.

On the one hand, I had been looking forward to this. I am close to being a First Amendment absolutist, and I gag instinctively at the idea that any form of political speech should be restricted, theories about corporate personhood aside.

On the other hand, we know what’s going to happen, don’t we? It’s bad enough that Congress can’t get health care right thanks to the doleful effects of corporate lobbying. And I do wonder why the Court had to overturn restrictions on corporations that extended back a century.

For the time being, I’m going to punt, and link to an article I wrote for the Boston Phoenix in 2003 on a corporate-speech case involving Nike.

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  1. Harrybosch

    Anything that drives a stake further into McCain-Feingold is okay by me.

    One of the darkest moments of Bush’s presidency (and there were a LOT of them) was the day he signed the “Campaign Finance Reform” bill into law, a law that he knew to be—and stated as much in his own campaign—unconstitutional.

    Recall the day he signed it into law; he did so alone, in the Crawford compound, with no cameras, no pomp and ceremony, no smiling McCain by his side waiting to receive the ceremonial pen. He knew what he was doing was not only wrong, but was a violation of the very Constitution he swore to uphold.

    Of course, in retrospect, a President signing into law something he knew to be unconstitutional should have tipped the rest of us off as to what other constitutional violations may be to come.

    Anyway, as far as I’m concerned, folks can spend as much as they want on campaigns, long as it doesn’t come out of my pocket, and long as every campaign contribution and its amount is made publicly available for all to see.

  2. Al

    I happen to feel that there should be a restriction on who can donate to candidates. That restriction should be that only those individuals who can register and then vote in an election can donate to a candidate. Corporations can’t do so, organizations can’t do so, so they shouldn’t be able to donate. There is nothing stopping employees or organization members from donating if they are citizens who can vote, so their freedom of speech is not compromised. If a company wants to promote a candidate, then let them put up an ad saying so. Of course, their name will be on that ad, so there will be no doubt as to who is promoting what.

  3. Al

    Dan: Isn’t the reason why the Court “had to overturn” nearly century old restrictions on corporate donations the fact that we now have a Roberts and Alito on it, on top of Scalia and Thomas? It’s rulings like this that make Supreme Court nominations so critical.

  4. I too am “close to being a 1st Amendment absolutist”, and am further aware that corporate personhood has roots as far back as ancient English common law, but I tend to agree with Justice John Paul Stevens who wrote (in his dissent re Citizens United):

    “[corporations] cannot vote or run for office. In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it.”

  5. Harrybosch

    Also couldn’t help but note this line from your linked Phoenix article:

    “Nike’s defense was . . . that the company had a First Amendment right to make false statements.”

    Not in Massachusetts, apparently.

  6. Aaron Read

    I’ll take your “1st Amendment Absolutist” and I’ll slice it off at the knees: How exactly is it “free speech” when you have to have millions of dollars to be able to say anything?

    We already have the best government money can buy, now we’ll have the worst government money can corrupt. The concept that the First Amendment allows for free speech in this country is already a bad joke when it comes to political campaigns…this ruling just made the punchline that much more painful.

  7. Ggood

    This is one of the reasons I am a libertarian at heart. There should be no such thing as a corporation. By allowing them to exist, we put ourselves on the slippery slope of having to determine exactly what rights we extend to them and what rights we deprive them of. Allowing them unlimited political speech is simply a further undermining of personal accountability that goes hand in hand with the concept of the corporate entity.

  8. MarkH

    Since the doctrine of corporate personhood arose from a court reporter’s error in the 19th century, I’m wondering why it hasn’t since been challenged as a fact. Or is the next step to grand corporations the right to vote too?

    As for the SCOTUS decision itself, I can never view political advertising as anything other than that: as advertising, not as speech that needs to be free. This woeful decision will result in nothing more than a flood of corrupting money into an already corrupt electoral process.

  9. Dot

    Two hundred years ago corporate charters were not given out lightly and came with the understanding that the public good was a consideration when granting a charter, especially the creation of a corporation which would then have monopoly rights like a toll bridge, for example. We see vestiges of this sensibility in the granting of broadcast rights where a broadcaster has to have some small portion of programming devoted to public affairs. We’ve completely lost this sense that the state is granting a very valuable favor by giving out a corporate charter. To then turn around and pretend that a corporation which exists at the sufferance of the state is a “person” with free speech rights when it aggregates the money of hundreds and thousands of individuals completely turns this equation on its head. It’s a sad but predictable decision coming from those who allegedly believe in history and original intent.

    And this: “Eight of the justices did agree that Congress can require corporations to disclose their spending and to run disclaimers with their advertisements, at least in the absence of proof of threats or reprisals.” Well, I read “eight” and knew immediately that Clarence Thomas was the dissenter.

  10. Patricia

    My beef is with the corporate personhood bit, not the free speech. I’m all for the First Amendment. But, to paraphrase a headline I saw on Alternet, the SCOTUS has now finished giving corporations all of the rights of citizenship with NONE of the responsibilities. Ugh.

  11. Neo

    The SCOTUS ruled exactly the way that the ACLU amicus brief had suggested, but Associate Justice Ruth Bader Ginsburg, a former member of its board of directors and one of its general counsels in the 1970s, voted the opposite way.

    But, just as Bill Clinton’s rich contributors put an end to the notion that “only Republicans are rich,” I fully expect many folks to be surprised to find out that all corporations aren’t conservative or Republican (think Ben & Jerry’s).

  12. Jeff In Boston

    “theories about corporate personhood aside”?


    That’s not a side point. It is the point, Dan.

  13. Steve Stein

    Is it time for a constitutional amendment?

    “We, the People of the United States of America, reject the U.S. Supreme Court’s ruling in Citizens United, and move to amend our Constitution to:

    * Firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.
    * Guarantee the right to vote and to participate, and to have our votes and participation count.
    * Protect local communities, their economies, and democracies against illegitimate “preemption” actions by global, national, and state governments.”

  14. admitted skeptic

    The Boston Globe, NYT, WSJ, etc. are owned by corporations. They are allowed to publish whatever they want up to the minute (or during) an election. They can even endorse candidates or take sides on issues through their editorial pages. Are their free speech rights greater? Big corps like GE own movie television networks and studios. Can they open a movie or run a TV show highly critical of a candidate or show a purely fictional drama that is promoting a cause (abortion rights, anti-death penalty) the week of an election? Who is going to decide what was done for purely political reasons?

    I am for unlimited spending and political donations because if the the first amendment protects anything it should be political speech and these days MONEY=Speech. However, I would require full immediate disclosure of the source before a dime could be spent. I think a lot of this may be less important as time goes by because of things like social media and the internet in general. It is becoming much cheaper to get your message out there.

  15. Steve Stein

    Can they open a movie or run a TV show highly critical of a candidate or show a purely fictional drama that is promoting a cause (abortion rights, anti-death penalty) the week of an election?

    That was exactly what was at issue in this case. And now, apparently, the answer is “yes”.

  16. admitted skeptic

    That is why I agree with the ruling. Otherwise, some established media corps will have the power to say whatever they want, while others will be censored. Remember that is usually the little guys that get squashed.

  17. CAvard

    Dan, what is your take on corporate personhood anyway? I think it’s a valid argument that hasn’t caught on. I recommend reading by POCLAD’s Richard Grossman or Tom Linzey. They tell it the best.

  18. LFNeilson

    Does this apply to foreign corporations? What about U.S. subsidiaries of? Things could get very interesting in our era of multi-national corporations and global commerce.

  19. Ben

    Now let’s increase individual contribution limits to candidates for office. If we’re about to face an unprecedented onslaught of special interest propaganda, then at least give the independent candidates for office a fighting chance! Of course, these limits are more about protecting incumbents than protecting the public interest – so that’s probably not going to happen.

    I think today’s crony capitalism has more to do with the tremendous amount of goodies the Federal government hands out than with corporate speech. Abolishing free incorporation, as some are suggesting, would also have the effect of dramatically increasing corruption. Can you imagine having every corporate charter granted by act of a legislature? If you think elections are high stakes now, just wait until your political opponents get to determine whether your business is “in the public interest.”

  20. charles pierce

    Unfortunately, Dan, you can’t set “theories about corporate personhood aside” when discussing this case. Without them, there is no First Amendment case to be made here.

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