Monday, October 28, 2013

Does the Milwaukee Common Council Hate the First Amendment?

The First Amendment to the United States Constitution guarantees the freedom of speech and of the press as well as the right to assemble and petition the government for redress of grievances.  The Supreme Court has recognized that these right  establish a right of association,  reasoning that “"implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” 

This afternoon, the Milwaukee Common Council will be asked to oppose these constitutional protections.   

On the agenda is a meaningless resolution asking the Council to endorse an amendment to the Constitution establishing that “only human beings--not corporations, unions, nonprofit organizations, or similar associations--are endowed with constitutional rights, and that limiting political contributions and spending is not equivalent to restricting political speech .” 

Now, the Milwaukee Common Council has about as much influence on whether the Constitution will be amended as I do. This is a classic political stunt by which elected officials seek to genuflect to some grand cause that they have no ability to further rather than attend to their jobs. It’s not surprising. Empty gestures are easy. Governing is hard.

But we should be clear about what this empty gesture endorses. It is not liberty. It is not equality.  It is fascism. 

Yes, I chose that word deliberately and with great care.

Should the Constitution be amended in the silly way that the Common Council is being asked to endorse, organizations like the ACLU and NAACP would have no right to advocate for their members. This newspaper would have no constitutionally protected freedom to publish.  The Bush administration would have been free to shut down  All of these entities are “corporations.” 

Both prongs of the proposed amendment would eviscerate the freedom of association (persons who gather together to speak typically incorporate or form “organizations”) and the freedom of speech. To say that limiting “political spending” is not restricting political speech is to say that the government can deprive advocacy organizations of the means to speak.  In the brave new world that the proposed amendment would establish, the government could silence unwanted voices by denying them the ability to effectively communicate their views. Want to publish a book or magazine? Put up a website or make a movie? Hire canvassers to distribute literature? It all costs money. 

Yes, I understand the motivation. Sponsors believe that people who are able to spend a greater amount of money on politics have an unfair advantage and government is sold to the highest bidder. But there is virtually no evidence that this actually happens (money tends to be on both sides of most elections and there are countervailing advantages) or that the blunderbuss proposed is necessary to address it.


John Mitchell said...

As a professor, you ought to know the difference between rhetoric and dialectic. Unfortunately, you have let your Dad29 get the best of you. Sure, the Milwaukee Common Council is grandstanding with their proposal, just like yourself when with your blog title and your insistence that their actions are "fascist". Ironic, is it not?

A history lesson--

Legal scholars today are still grappling whether "corporations can be considered human beings entitled to constitutional rights" and "can money be considered free speech, therefore the regulation of political contributions and spending is unconstitutional" in light of the Citizens United decision (2010). They are debating whether the Constitution can be interpreted to equate corporations as people who have political rights.

The Founding Fathers clearly understood the power that corporations possessed, as evident by the shenanigans of the East India Trading Company. Trade-dominance by that corporation aroused the gravest of concerns by the Founding Fathers, and as a result, the framers took it as a given that corporations could be comprehensively regulated in the service of the public welfare by the government, that their rights would be conferred through charters and acts of Congress.

Note that the founding fathers intended political free speech for natural persons. John Adams, speaking for his brethren, stated “Banks have done more injury to the religion, morality, tranquility, prosperity, and even wealth of the nation than they can have done or ever will do good.” So, you honestly believe the Founding Fathers would disregard their own position by implying that corporations equate to real people? NO! Rights were designed and conferred to American citizens, real people.

Fast forward to Santa Clara County v. Southern Pacific Railroad (1886), which in part served as foundational piece for Citizens United. In Santa Clara, the Supreme Court determined that public corporations, like private citizens, have due process and equal protection of the laws under the 14th Amendment.

John Mitchell said...

Now preceding every Supreme Court case entry is a headnote, or summary. The court reporter, J.C. Bancroft Davis, a former railroad executive, stated, "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment, which forbids the State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”

The question of whether corporations were persons within the context of the 14th Amendment, however, was NOT explicitly decided. The Supreme Court NEVER ruled whether corporations were “citizens” and afforded certain inalienable rights. Since 1886, the Supreme Court has reiterated this assumption that corporations are entitled to constitutional protections...when it CLEARLY was not the case!

As a result, Congress distinctly defined speech as being political and economic. In general, corporations may invoke rights that individuals possess, such as the right to petition, to speech, to enter into contracts and to hold property, to sue and to be sued, only relating to ECONOMIC/COMMERCIAL matters.

When it came to corporations in POLITICAL matters like hosting rallies and campaign contributions, Congress and state governments had enacted several laws banning company involvement in the political arena, citing past corruptive practices.

Supreme Court decisions regarding corporate personhood had focused on businesses being held liable for their production of goods and being able to "voice" their concerns in a court of law when they felt government attempted to strictly regulate their practices. When it came to influencing government policies through political speech, the Supreme Court, Congress, and state legislatures made it a general policy for decades those rights squarely belonged to living things, not artificially created entities. Decisions in the late 1970's and 1980's, however, slowly eroded that distinction and paved the way for Citizens United to become the law of the land.

John Mitchell said...

Chief Justice William Rehnquist, a conservative, mentioned the dubious headnote in the Santa Clara case when he wrote a compelling dissent in a
1978 Supreme Court case that expanded corporate personhood.

Rehnquist reiterated Chief Justice John Marshall's views in Dartmouth College v. Woodward (1819) a corporation was an ARTIFICIAL BEING possessing the properties which the charter of creation confers upon it--meaning a government granted a business with the ECONOMIC right--not POLITICAL rights--to operate within its borders. Moreover, Rehnquist warned treating corporate spending as the First Amendment equivalent of individual free speech was to "confuse metaphor with reality".

So how should the Supreme Court treat newspapers, magazines, and television networks which report the news? The Court in media cases has tailored its rulings under the "Freedom Of The Press" clause and in citizen cases has tailored its rulings under the "Freedom Of Speech" clause. That is, it renders an opinion based on previous cases and past precedents in the appropriate area.

Twenty-two cases since 1936 have rendered decisions in that for-profit corporations DO NOT enjoy the same First Amendment rights as individuals; rather they extended only to those INDIVIDUALS WHO WORK FOR COMPANIES that are vehicles for producing and distributing free speech, such as books, newspapers, journals, films and other artistic and educational entities. That is, writers--actual people--who WORK for a media company are subject to the freedom of the press provision of the First Amendment.

We know that exceptions exist to free speech (e.g. sedition, slander) for both media companies and citizens. Media companies, however, are unique in its role regarding free speech compared to other businesses. If a reporter engaged in slander, they would be sued under their occupation as a writer employed by their company. If a business owner engaged in slander, they would be sued as a private citizen. In either situation, the courts would determine whether or not the accusation had merit and make a decision in that specific context.

In Citizens United, three issues were addressed: 1) is a company, as an "artificial entity" (that is, deriving its legitimacy by a legislature) whose function is ECONOMIC in nature, entitled to the POLITICAL rights as "natural persons" (that is, citizens of a nation as specified by the criteria of a legislature) under the Constitution; 2) is "free speech" simply "free speech" or is it delineated as "political free speech" and "economic/commercial free speech"
-and- 3) does “free speech” protections for companies override the historical impact of corporate monied interests in politics.

John Mitchell said...

The decision centered on the POLITICAL content of their good (i.e. film) in relation to the McCain-Feingold Act, not the ECONOMIC right of Citizens United (a non-profit corporation) to produce a good.

Critics of Supreme Court Chief Justice John Roberts, who helped to craft the majority opinion, emphatically stated during his confirmation that the Court should refrain from overturning precedent. He presented himself as an incrementalist, a justice opposed to big changes in direction. One can argue whether Roberts has actually lived up to his judicial-restraint packaging. A New York Times editorial urging a narrow ruling, an op-ed by Jeffrey Rosen, opined that how Roberts handled this case would determine if he was the next Earl Warren, the 1950’s/1960’s liberal Chief Justice whom some conservatives demonize for “legislating from the bench” and “judicial overreach”.

Overturning a century of precedent, however, may not be contrary to his self-declared judicial philosophy. "Originalism"--justices who claim it is
not Supreme Court precedent that governs, but rather the intentions and understanding of those who drafted the Constitution (and its amendments)--lends itself to the possibility that the precedent was inherently flawed and therefore required judicial intervention.

Tom said...

Churches are corporations, too. One of the fundamental purposes of the First Amendment is to prohibit government from mucking around with church leadership - appointing, removing priests, deacons, etc. If corporate churches have no constitutional rights, government can do whatever it wants to control them.

Government can also search and seize corporate property with no probable cause, much less a warrant. Corporate property can be taken without just compensation.

Corporations can also be subject to ex post facto lawmaking. Punishing businesses that make "too much" profit is already a favorite pasttime of some politicians; can you imagine how much worse it will be without protection against ex post facto laws?

John Mitchell said...

"Churches are corporations."

And subject to the laws of Congress that govern "secular" corporations.

"Government can also search and seize corporate property with no probable cause..."

Really? Ok, please cite specific instances to prove your assertion.

Perhaps you can do a better job than the professor, who simply uttered "fascist" without a step by step account how the MCC was "fascist".

"Punishing businesses that make "too much" profit is already a favorite pasttime of some politicians."

Irrelevant to the thread.

Anything else, Tom?

John Kaufman said...

My rebuttal to this post--"Friday afternoon rebuttal #2"-- can be found at my website, The Afternoon Journal. Just click on my name.

Regards, John

John Mitchell said...

Thank you, John Kaufman, for providing additional, cogent points to refute Professor Esenberg's position.

Perhaps he can find time to post a rebuttal to our arguments (although preferably NOT from the comforts of his Marquette office).