Study Finds 'Corporate Takeover' of First Amendment

http://www.nytimes.com/2015/03/24/us/first-amendment-patron-saint-of-protesters-is-embraced-by-corporations.html

by hackuser • 11 years ago

24 21 11 years ago

CoreSet• 11 years ago

Unsurprising but still thoroughly depressing.

thecabinet• 11 years ago

To summarize: 1A was good when it was being used by liberals/Democrats, but is bad now that it's being used by conservatives/Republicans.

Karunamon3• 11 years ago

Your summary is laughably, trollishly incorrect.

His study, he said, analyzed First Amendment challenges from businesses to an array of economic regulations.

Actual summary that's based on the actual article and not whatever tripe you think you read:

Based on an analysis of challenges to various laws on 1A grounds, more challenges are being made by corps fighting economic law (as if money were speech), than by the everyperson.

I'm not sure the conclusion bears out, though. The (patently insane) idea of money==speech is relatively new. Are there really that many first amendment abrogations happening on a daily basis for normal people?

I'm also not sure why you chose to make this a partisan issue. Both major political parties are bought and paid for by large corporations, and framing corporate gaming of the system as a leftist-only issue is incredibly dishonest.

AhrowTway• 11 years ago

"Money == speech" is a rhetorical device for soapbox points. The ruling for that was very clear in stating that there is no way to separate political speech with the intent to persuade from the costs of such speech. (leaflets, airtime, and meeting halls all cost money) Therefore, spending money on that type of speech is granted 1A coverage because denying people money for that type of speech is the same as denying their right to speak.

afarrell• 11 years ago

Printing presses are and have always been expensive. Those who can organize people to pay for them will always have that advantage over those who cannot.

bko2• 11 years ago

I never understood how a potential restriction of commercial speak would look like. Which of these consists of commercial speech and which should be protected?

1. MSNBC or Fox News hosts opining on TV

2. An unpaid op-ed in a for profit publication

3. A paid op-ed in a for profit publication

4. Someone handing out political leaflets in the street for free

5. Someone handing out political leaflets in the street for money or some other benefit

6. The movie Juno (could be both pro and anti abortion, depending on who you ask)

[edit formatting]

caseydurfee2• 11 years ago

None of these are commercial speech. For crying out loud. Commercial speech is speech done by a private corporation for the purposes of furthering their own economic interests. Even commercial speech is protected as long as it isn't fraudulent.

I don't know what you mean by "potential restriction". We've had restrictions on commercial speech since the early days of our country.

bko2• 11 years ago

Commercial speech has been defined by the Supreme Court as speech where the speaker is more likely to be engaged in commerce, where the intended audience is commercial or actual or potential consumers, and where the content of the message is commercial in character.

Commercial speech, such as advertisements, has been ruled by the Supreme Court to be entitled to less protection under the First Amendment than noncommercial speech. Under the First Amendment, noncommercial speech is entitled to full protection, and any sort of content-based regulation is only valid if it can withstand strict scrutiny. However, commerical speech is not given such deference. For a content-based regulation of commercial speech to be valid, it only must withstand intermediate scrutiny.

Additionally, commercial speech that is false or misleading is not entitled to any protection under the First Amendment, and therefore can be prohibited entirely.[0]

Sorry, I should have said political speech more generally by a commercial entity

[0] https://www.law.cornell.edu/wex/commercial_speech

tessierashpool• 11 years ago

saving you a click: corporate takeover because, as corporations are "people" in a legal sense (although only when it benefits them to be so), they have a right to free expression.

therefore laws which inhibit corporations from pumping money into politics violate the First Amendment, although scanning every email you ever write does not violate the Fourth Amendment. (spoiler alert: yes, it does.)

nickysielicki• 11 years ago

Don't think we needed a study for that. Frankly, US history classes are propaganda, and the problem is that they lead us to think that it hasn't always been this way.

We're just starting to kind of legitimize it. I don't see that as a bad thing, once you accept that it has always been this way, you realize that legitimizing it makes it at least out in the open. It's no less dangerous, but at least it isn't taking place under the table.

trynumber9• 11 years ago

I must be missing something. Why shouldn't corporations benefit from freedom of speech? I don't care who says it or what it says, freedom of speech is a fundamental right.

Are not NYT & Harvard companies of some sort? Why should they be protected under the 1A but not other companies?

caseydurfee2• 11 years ago

My goodness, what are they teaching in schools these days?

Commercial speech is protected under the 1st Amendment. It can be restricted if it passes the Central Hudson test:

1. The speech regulated is fraudulent, misleading, or proposes an illegal transaction; or All of the following elements are present: a. The government's interest in regulating the speech is substantial; b. The restriction directly advances the government interest; and c. The restriction is no more extensive than necessary to advance the government interest.

Since the early days of our country, there has been a distinction between expressive organizations (like the New York Times -- a company that primarily engages in activities protected by the 1st Amendment -- publishing an article on how Bob's Chicken will make you sick) and commercial speech (Bill's Chicken, a competitor, publishing an article on how Bob's Chicken will make you sick.)

Both Bill's Chicken and the New York Times have freedom of speech. But commercial speech can be restricted if it's fraudulent or misleading, whereas expressive organizations are given far more leeway. That seems fairly common sense to me.

hackuser• 11 years ago

The NY Times also benefits from a specific provision in the Bill of Rights, freedom of the press.

benihana• 11 years ago

I wish people would think through citizen's united instead of just spouting off the 'corporations are people' platitude (convenient no one seems to mention that unions are also people now). Why should a group of persons not have the same rights to speech as a single person? What about it being a group makes it so scary? It's not like the barrier to entry on pooling your money is any higher than protesting is it?

The argument in this piece seems to boil down to "I am afraid of what conservative people with money might say, and I don't want them to be able to use their money to say it." Is there even any evidence that corporations are using their wealth to influence politics through political ads? Because that's what this is really about isn't it? Corporations buying elections through ads. This article is full of vague notions, but there's no real evidence to support the narrative that this is a problem that's even happening.

Karunamon3• 11 years ago

Even if we accept the partisan hackery you've dropped on us here, the idea that it's not "a problem" is insane. The answer to a lawsuit about something like false advertising is not "freedom of speech".

The limits on the first amendment right for individuals has been thoroughly explored in the last century or so - the recent cases, less so. And I feel that there's value in asking why this sudden change in many years of jurisprudence.

None of the answers I can conceive reflect very well on the legal or regulatory systems.

wildmusings2• 11 years ago

First amendment cases concerning private individuals aren't as common anymore because it's largely settled law. Welcome to America, you have nearly-unlimited freedom of speech. People don't get arrested for political opinions, or for posting racist tweets (unlike Europe), or for saying something hateful things in public (unlike Europe), or for publicly supporting Al Qaeda or ISIS, or for wearing a swastika and having a Nazi march through a town inhabited by aging Holocaust survivors (see Skokie). In fact, if a CIA agent walked up to you and gave you thousands of seriously embarrassing classified documents, he'd go to jail for a long time but it would be almost impossible for the government to get a court order stopping you or punishing you for publishing. Every so often, some local cops overstep their authority and the district courts take care of it. The Supreme Court is interested in clarifying existing law, resolving circuit splits, and deciding landmark cases, not in deciding the same issue repeatedly.

If you say hateful or stupid things, your punishment is that people won't like you. Amazingly, it works.

belovedeagle2• 11 years ago

Yes, the universities which are leading the charge on suppressing the speech of students are widely known as bastions of conservative thought. /s

The article is idiotic. Yes, groups of people (corporations, in the literal sense) have begun to be recognized as having almost as much right to free speech as the individual constituents. No, that might not be perfectly ideal. Yes, at the same time (who can speak as to the causal relationship) the conservative right has embraced the first amendment somewhat more than in the past.

But the real problem is not that the right has embraced 1A, it's that the so-called "liberal" left has abandoned it. The left is no longer liberal in the traditional sense; in fact, these days, it's the left which seeks to impose certain values on society by any means necessary, including the suppression of speech. "Students, prisoners, pacifists and whistle-blowers"---at least two of these, students and whistle-blowers, have been primarily attacked by the leftist university administrations and the current American executive, also on the left. I can't say as to the prisoners and pacifists, except insofar as the prisoners and pacifists are the whistle-blowers, in which case it was again the left which has trampled their first amendment rights.

Those of us who might be liberals in the traditional sense are and should be increasingly disgusted by these trends.

pXMzR2A• 11 years ago

"Students, prisoners, pacifists and whistle-blowers"---at least two of these, students and whistle-blowers, have been primarily attacked by the leftist university administrations and the current American executive, also on the left.

What you call "left" in this argument is actually centre right. Sorry but the left barely exists in the US, compared to other nations. Your confusion is probably due to the binary party system where, interestingly, 0 = 1.

Anyhow, though they share some common grounds, the left is not and cannot be "liberal". (For example, no leftist would argue for the corporatization of free speech in their right minds, as you did in your liberalist comment, excusing it as "not perfectly ideal".)

For classical leftism, see https://en.wikipedia.org/wiki/Marxism

For modern leftism, see https://en.wikipedia.org/wiki/New_Left

leftist university administrations and the current American executive, also on the left

Leftist university administrators do not exist in the US. No leftist university administrator would take an active (pro/supporting) role in a system that depends on the exploitation of adjunct faculty, the active sabotaging of unions by universities, and the overall commodification[1] of education.

The current American executive is not leftist either, as demonstrated by their trend towards building a surveillance system for elitist / corporate US dictatorship.

In light of the above, you are in no position to call any article "idiotic."

edit: [1] http://www.randalolson.com/2014/03/29/its-impossible-to-work... is an interesting read.

belovedeagle2• 11 years ago

I think you missed my point entirely. I agree that the American left is not liberal; however, they are very much still the left.

Your argument is basically, "well, these people are doing some shitty things and therefore they must be on the right, because only the right does shitty things". Give me a break.

If you want an "ism" which matches up most closely with the concept of "the left", you're looking for statism. And the American left is very, very much statist; they just also happen to be capitalist too. I agree that statism and true liberalism are largely opposed; however, a few decades back, the American left was somehow also very liberal. At the time, there were many influential statist visions of liberalism which were quite popular (your "New Left" link exemplifies this perfectly). So my earlier comment could be restated as pointing out that what's happening today is that people have become disillusioned with the oil-and-water mixture of statism and liberalism, and thus the true liberal elements have moved away from the left. The result is a kind of coalition between the old right and the departing liberals.

But all of that was more-or-less irrelevant to explain the link.

And, uh, I'm not sure what your link has to do with anything.

wildmusings2• 11 years ago

Freedom of Speech does not exist to further the political ends Mr. Lipsak is sympathetic to. It is the fulfillment in Law of the Free Conscience of Man: that no man should have to answer in shackles for speaking his mind; that for his words he should fear nothing but the equally Free Judgment of his peers.

There is ample and settled case law in the US that guarantees nearly unlimited freedom of expression to individuals and activists. But for over a half-century now, the state has exerted its power over realms once ruled by the freely-entered private contract. At its best, the state can be defender of the peace, guarantor of stability, and investor in tomorrow. But at its worst, it enviously confiscates wealth, stifles innovation, and denies freedom. Who but the impartial judge is suited to arbitrate between the democratic legitimacy of the state, and the human autonomy of the individual? Between guardianship and freedom?

Criticism of the the Citizens United decision overlooks the specifics of the case, which are actually very illustrative of the danger of making exceptions to Freedom of Speech. Citizens United's violation was making a movie critical of Hillary Clinton within 1 month of a primary. A new campaign finance law prohibited private "electioneering" featuring candidates within one month of primaries and two months of general elections. The Federal Elections Commission believed that Citizens United was in violation and sought a gag order prohibiting further marketing of the film. Fast forward to the Supreme Court's decision: Citizens United won on First Amendment grounds. The under-told angle of this story is that the government had passed a law shielding itself from criticism when the freedom to criticize is most precious: leading up to an election! Picture a possible scenario if the court had ruled for the FEC: if Citizens United had refused to cease marketing the film, the FEC would have been granted a court order. If Citizens United still refused to stop spreading their film, the executive officers would have been imprisoned for contempt of court. The Supreme Court would have been foolish to abandon a great tradition of free speech and allow people to be punished for spreading a political message.

An aside: as a journalist working for a very wealthy corporation that sometimes acts more like a political campaign than a newspaper, Mr. Lipsak should know better than to so quickly dismiss the free speech of "corporations" as lesser than that of people.

Study Finds 'Corporate Takeover' of First Amendment

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