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Comment by jsyedidia | Hacker News Reader

Everybody seems to argue about this issue without ever referring to the text of the first amendment, which is what the majority of the Supreme Court based its decision on.

The first amendment says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

To me, it seems pretty obvious that by passing McCain-Feingold, Congress had made a law "abridging the freedom of speech." It should not be surprising that it was ruled unconstitutional.

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For your claim to be true money must in some way be related to the ability to exercise free speech. Consequently, an absolute interpretation of the 1st amendment means taxation is a violation of free speech. Time to abolish taxes, then?

In practice freedom of speech is a sliding scale. See the public school system. There we have determined that education of our youth is more important than absolute free speech. Perhaps democracy is more important as well? We make these pragmatic decisions about the 1st amendment all the time. The suggestion that it is an absolute is completely untenable.

Further, if you continue to adhere to a strict constructionist interpretation of the constitution, will you make a public statement against hostile takeovers by shareholders? The text of the thirteenth amendment reads: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." If we really are treating corporations as people protected under the constitution, you shouldn't be able to take over a company against the management's wishes.

I hope I've made it clear that absolute interpretation of the constitution in this case is not a valid interpretation. Regardless of the constitutionality of McCain-Feingold, literally interpreting the 1st amendment is an invalid argument against the legislation.

McCain-Feingold wasn't just about expenditures. The government argued it could ban or confiscate books/movies based on who paid for them, or a tiny proportion of candidate/issue advocacy during election season. The first three paragraphs of this piece, by a major McCain-Feingold opponent, capture the overbroad reach of the FEC's claims:

http://www.nationalaffairs.com/publications/detail/the-myth-...

You're right. I am not trying to argue that McCain-Feingold is constitutional. Rather, I'm trying to point out that a literal interpretation of the constitution in this case is invalid. It's a simplistic argument that sounds good at first but doesn't hold up under critical analysis. I just did some recent edits to better express my point of view.

"For your claim to be true money must in some way be related to the ability to exercise free speech."

In a world where you have to pay for things, the ability to freely use your money is necessary for most rights. Unless everyone can will themselves TV and radio time and wish pamphlets and websites into existence, restriction of spending for political speech is a questionable proposition at best.

"Consequently, an absolute interpretation of the 1st ammendment means taxation is a violation of free speech."

Yes, it would, though the neutrality of most taxation can be used to argue it as a benign one. However, you're merely raising that as a strawman, as almost nobody cares about absolutist interpretations.

"Perhaps democracy is more important as well?"

Political speech has long been the type of speech jurists have been least willing to restrict because it is essential to democracy. You might as well say, "Perhaps the right to live is more important than the right to oxygen."

Though, to be fair, everyone will likely be able to do these things (or their equivalents) in the distant-but-not-too-distant future.

At that point, they will use different justifications to try to restrict political speech.

And how will they be able to do these things? Using technology established with government funds perhaps?

I assume he means "nanotech makes everything happens with a poof of magic smoke."

TV and radio time? Those things are going to the internet rapidly. This makes the amount of bandwidth used dependent on the number of listeners (i.e. not a pure broadcast medium), which means that there are by definition enough resources to go around. There's only a social difference between "buying airtime" and "putting a video on YouTube."

Pamphlets won't go away until everyone has a smartphone, which could take a while, but once it happens, that's it for the medium. It gets replaced by the "website."

And you pretty much can will a website into existence. FrontPage is decidedly unpopular here, but I know people who have built adequate websites to their purposes just using FrontPage. We just need the free alternatives to catch up.

And then you still have money to spend - unless you're going with purely free and out-of-the-box solutions, someone's going to have to spend time designing the website. At the very least, someone will have to spend time writing what will be on that website.

Even if nobody pays you a dime to do those things, you've just done something that can be priced under "in-kind" campaign finance regulations.

You have to spend time thinking of what to say, whenever you want to say it. Fortunately, everyone has the same amount of time (well, per unit time anyway).

A corporation is somewhat handicapped in this regard, in that it doesn't actually have any time: it can only buy it from others. This does not strike me as a problem.

...as almost nobody cares about absolutist interpretations.

I apologize for what must be a failure in my writing, but that's exactly what I'm trying to convey. In my comment I tried to show how silly the logical conclusions of absolute interpretations look. I tried to avoid saying anything about the political side of the issue. You'll note though that as of this writing an absolutist interpretation is still the highest voted comment for this article.

" In my comment I tried to show how silly the logical conclusions of absolute interpretations look. I tried to avoid saying anything about the political side of the issue."

Avoiding the actual argument while trying to cast the side you disagree with as ridiculous and extreme is the essence of the strawman fallacy.

You misunderstand. There is no side I disagree with. The only thing I disagree with is using strict constructionist interpretations, whether such interpretations argue for or against campaign finance reform. Similarly, I am opposed to literal interpretations of religious documents, independent of how I feel about the morals behind them. I think rejection of absolute interpretations is an essential prerequisite to a constructive debate, which is why I bring it up. You may look to the religious right in the United States for examples of the effectiveness of debates that do not reject absolute interpretation.

"There is no side I disagree with"

So your misrepresentation of a pro-free-speech stance as "absolutist" and likening it to religious fundamentalism is disinterested trolling?

You can be pro-free speech and against an absolute interpretation of the 1st amendment. Similarly you can be deeply religious and still object to a literal interpretation of your sacred documents. I do not believe I misrepresented jsyedidia's position and if I have I invite him to correct me.

I most certainly am not trolling. You would know that if you read past the first sentence of the comment you replied to. Clearly you did not. I will quote myself again here in the hope that you read it this time: "I think rejection of absolute interpretations is an essential prerequisite to a constructive debate, which is why I bring it up.".

I believe our exchange is past the point of being constructive, as you appear to be ignoring significant parts of my comments. I think I'll stop replying to this thread here, although I will certainly read your reply if you post one.

"Clearly you did not."

I did, and I found it unconvincing. You are representing the mere discussion of free-speech principles as absolutist and fanatical. If this is not towards the end of something you believe is undermined by someone else's free speech, and it is not intended to provoke, then it is a puzzling misrepresentation.

As it is, I believe the involvement of people with different degrees of attachment to principles is a useful thing. The more compromising people buffer the excesses of the stalwarts, and the stalwarts in turn help keep them honest.

Noooo, he's saying that solving the finer points of free-speech issues with an uncritical and literal interpretation of the first amendment is absolutist.

More specifically, corporate personhood didn't exist at the time of the writing of the first amendment. It's somewhat disingenuous to take the lack of qualification in the first amendment as canonical on the matter. It's (arguably) absolutist because it's appealing to the exact wording out of context, when the current import of that wording is a historical accident. A non-absolutist viewpoint needs to acknowledge historical, legal, or social context.

"he's saying that solving the finer points of free-speech issues..."

Which of course requires that one consider this question a "finer point", or that the wording is "out of context". The Internet didn't exist at the time, either, but that doesn't mean free speech doesn't apply to it - or that there's a controversy we should teach on that question. That some people want to restrict speech in any given way does not mean free speech should be up for grabs in any given context.

The general constitutional-law take on civil liberties is that they come before other legal concerns unless one can demonstrate a serious and clear factor that outweighs them. To argue against the civil liberty interest without demonstrating that outweighing factor is far more ridiculous than to stand pat by the civil liberty interest.

That said, I'm not continuing this thread of argument.

Taxation of certain viewpoints or topics but not others would, indeed, be a violation of free speech. I.e., a ban or tax on film reels would not be a violation of free speech. A ban or tax on film reels containing "Hillary: The Movie" would be.

I also don't understand your "hostile takeover" argument. Who is being enslaved? The corporate officers who are free to quit at any time? The shareholders who voluntarily sell to the person taking over?

If expending money is speech, taxes are compulsory speech, which is a pretty serious abridging of free speech.

Public campaign financing would be exactly that.

Consider sin taxes, which Time Magazine calls "an established tactic" to reduce consumption of popular vices [1].

The hostile takeover argument isn't even necessary to make my point. Consider the fact that a corporation can own another corporation. Corporations are people under the law. Therefore, if we literally interpret the constitution, the ban on slavery makes a corporation owning another corporation illegal. Of course this is rather silly and shows why strict constructionist interpretations of the Constitution are irrelevant.

I am not trying to make political statements. The one and only thing I want to point out is the flaw in the highest voted comment for this article that advocates a strict constructionist interpretation of the 1st amendment [2].

[1] http://www.time.com/time/magazine/article/0,9171,1889187,00....

[2] http://news.ycombinator.com/item?id=1098741

I think you are interpreting "legal personhood" in a manner that is incorrect.

"Legal personhood" means that the corporate entity is a legal person in the matter of contracts and lawsuits. The "person" of the corporation is just a facade (in the design patterns sense) which provides useful simplifications in contracts and lawsuits.

You could completely replace corporate personhood with contract law. You would just have 10,000 page contracts that would specify the liability of each individual shareholders is limited to X, a lawsuit must target all shareholders and damages/debts are limited to Y, etc. Basically, each contract would reproduce corporate law.

Then whenever you wanted to collect a debt or sue the company, you'd need to dig into the contract to figure out how.

Instead, we've created a useful simplification/standardization: you say "Company X owes me $50,000", and it's up to Company X to figure out internally how to deal with this. It's also standardized to a few specific forms (LLCs, LLPs, S-Corps, C-corps, etc).

That's all corporate personhood is. A corporation has no inherent rights except those rights granted it by it's shareholders. Similarly, your computer has no rights, but that doesn't mean the government can pass a law saying "your computer may not criticize Obama." Such a law doesn't violate your computers rights, it violates your rights.

Similarly, laws against political speech violate the rights of the owners of the corporation who are ordinary flesh and blood people (as opposed to legal facades to simplify lawsuits and contracts).

First, thanks for the specifics on "legal personhood". Definitely helpful for me.

I do not believe that restrictions on corporations violate the individual rights of the owners. Aren't the owners are allowed to participate in politics individually, just as every citizen can?

Restrictions on corporations prevent the owners from using some of their property to participate in politics.

Similarly, computers aren't people. So does a restriction on "speech by computers" violate your rights? I.e., a law saying "you can't use your computer to advocate for or against the election of a politician?"

I understand this line of thinking, but I think it oversimplifies the issue. Some companies have a market cap larger than a small country. Some companies sell weapons to foreign militaries. Tools of different power need different laws governing them. I think the fact we restrict the political speech of federal employees (example: public school teachers) reflects this idea. Are you suggesting the same laws that apply to a pen that Larry Page owns should apply to the Google home page?

We don't restrict the political speech of federal employees except when they are at work. Public school teachers are free to advocate for anything they want and donate their pay to all sorts of causes.

In 2008, teachers were the largest group of political speakers nationwide, and contributed $13 million more to political causes than the largest corporation (the Penn National Gaming company). In general, government employees contribute more money to politics than corporations. In fact, in the list of the top 10 political contributors, there are 2 corporations (both gambling), 2 unions, 4 indian tribes, realtors, and a left wing PAC.

http://www.opensecrets.org/orgs/list_stfed.php?order=A

And yes, I do suggest that freedom of speech should apply to all speech, even speech that is heard by millions of people. Similarly, the same laws on vocal speech should apply to me and to Oprah, in spite of the fact that vastly more people will hear and be persuaded by her.

>"For your claim to be true money must in some way be related to the ability to exercise free speech."

Do you think a law that forbid spending money to criticize government policy would be compatible with the first amendment? By your reasoning Congress would be restricting money and not speech.

Excellent question. It would certainly violate free speech.

I am not trying to make the claim that money is not related to speech. Instead, I am claiming that since money is related to speech, any government regulation of money is regulation of speech. Therefore, if we were to use "abridging the freedom of speech" as the major criteria for declaring laws unconstitutional, we would have to strike down many, many laws that relate to the collection and regulation of money. I point out the extreme case only to show that it is unreasonable.

I instead advocate for a different approach where we interpret "abridging the freedom of speech" on a sliding scale. In doing so we can declare the more egregious laws unconstitutional while still allowing for some common sense regulation.

I really don't see how your argument holds that income tax is a regulation of speech. You're arguing that income tax is a regulation of speech just like regulating the purchase of political advertising, so we either are allowed to have both or neither.

It sounds like a really bad argument, or one that is too subtle for me to pick up the good points. And I'm guessing it's the first.

But the freedom of speech isn't absolute. It never has been and never will be. There are certain limits to it, and it's up to Congress to establish those limits. (It's also up to the SCOTUS to make sure Congress doesn't go too far).

In the decision, the question wasn't "does this prohibit the freedom of speech", it was "does a corporation have the freedom of speech" in the first place.

The argument could be reframed (based upon my limited reading of the decision) as "Does a person have the freedom to hear the speech of a corporation?". In this case, yes, they do. But they don't have to listen to it. And this is where I think there is still some play with McCain-Feingold in that perhaps it could be reworked to include a ban on corporations to use broadcast media w/in 30 days of an election. They could put up a website, print pamphlets, etc... but just not use a passive medium for their message.

the question wasn't "does this prohibit the freedom of speech", it was "does a corporation have the freedom of speech" in the first place.

No, that wasn't it.

The question was, "when acting in concert as a corporate body, do people retain their freedom of speech". Nobody has shown a compelling reason why people acting together shouldn't have the same rights as each of us has individually.

The limited liability granted to corporations is an excellent reason why they shouldn't have the same rights as a person. After all, they don't have the same responsibilities.

But a more basic reason is that a corporation is not a person! It's not a group of people, either, or they would call it a collective, co-op, or a partnership -- it is its own thing and there is no inherent reason whatsoever why it should have any rights at all, including the right to exist except as explicitly allowed by law.

"It's not a group of people, either, or they would call it a collective, co-op, or a partnership"

That seems circular.

Rephrasing that point: if a corporation was really merely a group of individuals working collectively, why invent another word rather then reuse one of the many existing ones?

You could ask the same question about the words "collective", "co-op", or "partnership".

Calling a corporation "people acting together", or just "a group of people" downplays the fact that corporations are indeed made up of many people but with only a very few of those people able to exert any real control over the whole entity.

Most large assemblies of people are like that. Unions are like that. Political action groups are like that. Underground movements are like that. The impracticalities of having everyone agree on everything means that whenever you have a large assembly of people you must hand over control to decision-makers.

Shareholders do have ultimate control over corporations, by the way. But shareholders, generally, would rather sell their stock--or fall asleep at the wheel--then exercise corporate governance.

But that's besides the point.

You are downplaying the fact that the Constitution clearly grants us right to assembly, in the same amendment that grants us free speech, and an assembly of people has the right to speech just as much as a person does. According to jurisprudence, the government may only curtail these rights with laws that meet a "strict scrutiny" standard: they must meet a compelling government interest, they must be narrowly tailored, and they must be close to minimally restrictive. McCain-Feingold does not meet the second and third standards, and 4 justices think it does not meet the first.

But, with a political coalition, people join the coalition in order to promote the mission of the coalition. With a corporation, people join the corporation in order to get paid, not in order to promote the viewpoints of the corporation. When you conflate the two objectives of profit and social decision-making, you're implicitly encouraging people to sell out their values. That's not democratic.

You are also downplaying the difference between a group of people and a corporation. A corporation is when group of people place some of their rights and responsibilities into an artificial entity, in order to promote its own interests and shield the creators from a certain amount of responsibility. Why must this political-economic golem be given the right to free speech? My contention is that the right to free speech of the creators and shareholders is completely sufficient. Giving the controlling shareholders access to non-controlling capital to promote their own viewpoints is troublesome because it causes several interests to conflict that don't need to.

"Why must this political-economic golem be given the right to free speech?"

Why must this political-economic golem be subject to specific laws, regulations, and taxes beyond the ones all the people in a corporation are already subject to?

The answer to your question is because it's subject to special government attention, the people involved with such a device have a right to use it in the political process to protect their interests and involvement with it.

As for selling out, people make decisions all the time. If you don't like the politics of your company, try to do something about it or find another you like better. (Realistically, this isn't much of a concern. Corporate donations tend to be remarkably even-handed so as to not give the winner of an election the impression they preferred the other guy.)

Think about it, folks. A corporation is a tool, like a car. There are laws that apply specifically to operating cars - you can get ticketed or arrested for breaking them. However, laws that said, "You can't use your car to drive to court in order to contest a traffic ticket or to drive to voting locations to vote for fewer no-parking zones" would obviously be abusive.

When you conflate the two objectives of profit and social decision-making, you're implicitly encouraging people to sell out their values. That's not democratic.

This is also a problem when the government takes money from some and gives to others. A socially conservative union member may vote democratic because he wishes for the government to restrict the rights of his employer and transfer wealth from customers to him. A social liberal working for a defense contract might vote republican because he wishes for the government to transfer wealth to his employer (and indirectly to him).

Anytime the government transfers wealth from some to others, it implicitly encourages people to sell out their values. I don't see why it is more of a problem for shareholders than for union members, people on social security/welfare/unemployment, or employees of corporations.

Yes, the four justices that dissented had arguments too, but I personally think one needs to stretch quite far to find McCain-Feingold constitutional. The text of the decision (including dissents) at http://www.supremecourtus.gov/opinions/09pdf/08-205.pdf gives all the arguments, and is very informative. (But reading it in full would probably be a waste of time...)

Exactly. Trying to conflate Freedom of Speech with eligibility for public office can't be anything other than intentional misdirection.

US Constitution, Article 1 Section 2: No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Does a corporation pass any of those tests? So why the heck do they make out like this is some kind of crisis?

Well they aren't a person who shall be a Representative. They're a corporation that shall be a representative. The Constitution doesn't say that only people may run for Congress, only that if a person chooses, he has special restrictions.

Now, the state election laws may make it impossible for them to get on the ballot, but the Constitution doesn't put any restrictions on a corporation that shall be a Representative.

But the point that sparked this thread was about corporate personhood (i.e. the law says that a corporate is a person). So arguing that a corporation isn't a person under these restrictions is kind of circular.

Perhaps you forgot to read my post to which your responded. Or else, can you describe in what way a Corporation is, in fact, a citizen of the United States?

My point is that, from a very literal standpoint, since they didn't say "you must be a person that ... to be a Representative", there's no actual restriction saying that only people may be Representatives. It just says that certain restrictions apply to people who wish to be representatives. If you're not a person, then " No Person shall be a Representative who ..." doesn't restrict you.

It's splitting hairs to the max, and I'm sure a court would find some way around it if it ever got there.

Oh, we'll be having that fight, but it won't be over corporations. It'll be over sentient programs.

Also, is that 25 years objective or 25 years subjective, in the case of an AI that grows up faster than real time? (To the extent that that even has meaning outside of a direct human brain simulation.)

Only natural persons can be citizens (by definition).

Here is what I'm worrying about... will there be a purpose formed corporation whose sole goal is the election of an individual? They could accept money from investors to finance their operation. Then in the last 2 weeks of an election buy all available airtime nationwide (or just in swing states) and say just spout total lies about an opponent. Something like "XXX will force us into a fascist government". 24x7 before an election. Given enough money, they could buy all the airtime available, leaving no time for any opposition ads.

They have the right to lie, and if they are sued for liable / defamation, etc... they are a corporation that can be disbanded. And because they are a corporation, there is limited liability to the owners.

Have you never heard of PACs, MoveOn - or for that matter, political parties?

These are organizations that exist for this sort of purpose. Why would some special-purpose single-election non-profit be any more "dangerous" than the sort of organizations that already exist?

Corporations are already formed for the sole purpose of electing an individual aka. The Committee to Elect Barack Obama.

Also, buying all the airtime is basically impossible as it decreases supply while increasing demand. Once investors realized someone was trying to do that, they'd buy ad space just to sell to that company. It would be incredibly expensive to organize all the sub-companies needed to buy it all with out anyone noticing. If anyone notices the gig is up as investors will swoop in to take a cut of the action.

Besides, if anyone actually managed to do that, it would be VERY easy for the other side to get articles written about how their viewpoints can't be expressed.

It would generate so much free publicity for the other campaign that it would likely be counterproductive. I'd love to be the candidate opposing the guy who bought all the ad time. It's pretty much a guaranteed victory because of the public backlash that would result.

It would be incredibly expensive to organize all the sub-companies needed to buy it all with out anyone noticing.

Rockefeller did it. Both Senior and Junior, actually. On multiple occasions. Now, there's probably nobody alive today with that kind of capital and influence to burn on this (with possible exception of Bill Gates and the House of Saud, both of whom seem to have other plans for their money).

>will there be a purpose formed corporation whose sole goal is the election of an individual?

I believe this already exists and is called a campaign. There are already rules governing fair play for campaigns, along with political action committees (PACs) and 501(c)3 groups.

Yes, there are rules for these entities. However, there aren't any for for-profit companies. There is nothing stopping a for-profit company from running ads saying anything that they'd like.

Now, I'm not sure how they'd be able to try and make a profit...

1) Buy a large corporation 2) Create lots of child companies 3) Run them for congress 4) Create lots more child companies 5) Use them to vote 6) Take over government 7) Profit!

> They have the right to lie, and if they are sued for liable / defamation, etc... they are a corporation that can be disbanded.

I'm not familiar with the exact legalities, but I'm pretty sure it's not legal to flat-out lie.

Also, there's only so much money can buy. If huge advertising budgets was a silver bullet, we'd all be running Windows (and loving it!) while chatting on AOL and drinking New Coke.

I'm not familiar with the exact legalities, but I'm pretty sure it's not legal to flat-out lie.

That's the point of forming the corporation. It will do something illegal and take the hit, shielding its owners from liability for illegal conduct.

The legal system is not a programming language compiler, mindlessly deterministic and oblivious to loopholes. Violate the intent of the law egregiously enough, and they'll find something that will stick.

The point is, if you make an ad that lies about your opponent, he can (and will) get an injunction against it. You don't get to lie on air 24/7 for two weeks and then file for bankruptcy after the election, is my point.

Also, a corporation isn't a silver-bullet-proof shield against personal responsibility. Kenneth Lay was convicted on (among others) four counts of fraud and false statements, and faced 20-30 years in jail.

That already exists today, and has existed for a while. McCain Feingold did nothing to stop it. If anything it made it worse by restricting direct contributions to candidate campaigns.

> Everybody seems to argue about this issue without ever referring to the text of the first amendment, which is what the majority of the Supreme Court based its decision on.

No it isn't. If the correct decision were obvious from the text then it would have never been heard by the Supreme Court.

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