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Comment by pg_bot | Hacker News Reader

I knew someone would bring up Citizens United v FEC when I said worst. I know this will be an unpopular opinion on this forum, but I believe that case was decided correctly. I agree wholeheartedly with Justice Kennedy's opinion that

"If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech"

Read the opinions and dissents of that case and you may change your mind.

https://supreme.justia.com/cases/federal/us/558/310/#tab-opi...

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The essential problem, which Justice Kennedy seemed not to understand, is that money is not speech. The easy test to show this as nonsense is quantification, i.e., it’s clearly the case that some citizens have more money than others, but it’s nonsense to think that some citizens have more free speech than others.

One of Justice Kennedy’s clerks in 2009-2010 was Misha Tseytlin, a Federalist Society member who undoubtedly helped write Kennedy’s opinion on the Bilski case, which widened the potential for business process patents and considered by many software developers to be a terrible decision regarding the patentability of software. Despite no connection to Wisconsin whatsoever, Tseytlin was later appointed Wisconsin Solicitor General by Scott Walker and worked on many of the voter suppression initiatives in Wisconsin. He’s been party to litigation on behalf of the Wisconsin Tavern League seeking to overturn Governor Evers’s executive order on masks and public gatherings. I’m a part-time resident of the state and grew up there, and it’s distressing to me that a fringe ideologue with no connection to the state continues to do it harm.

Does this quantification argument hold for citizens that are considered public figures? While they might not have more free speech than other citizens, they certainly have a more visible platform to communicate their opinions

Public Figures != Rich.

Bezos has no more free speech than Bernie Sanders, even though Sanders is only a millionaire.

Since Citizen's United, I can think of no effective or fair way to curtail corporate speech.

But I can think of dozens of ways to amplify and nurture non-corporate speech.

Yes, the torrent of bullshit is crippling democracy. But it's also true that other important speech is still not heard.

Whether or not money is speech, most of the time speech needs money.

Banning spending money on newspaper is banning the newspaper. Banning spending money on advertisement is banning the advertisement.

Under the dissenting view in Citizens United, Congress could ban the NYT, WaPo, WSJ, etc. from talking about politics. That's just absurd. Congress could have banned the Federalist Papers!

I've always tried to find a middle ground that prevented for profit corporations from spending money. But like 99% of our media is for profit corporations. It doesn't make sense to ban Amazon from political speech, unless they buy the Washington Post, in which case they can do whatever the fuck they want.

I find your reply unconvincing and disjointed. Among many other potential avenues for debate, the lowest hanging fruit seems to be noting that you’ve seemingly forgotten about freedom of the press with all your examples.

> the lowest hanging fruit seems to be noting that you’ve seemingly forgotten about freedom of the press with all your examples.

That's a deep, deep non sequitur.

Citzens United was about whether the government can stop corporations such as the NYT from talking about politics. The majority held that they cannot; freedom of the press (in the form of the fist amendment) protects them.

The minority held that the freedom of the press does not protect them. The person you are replying to noted, correctly, that under this view the NYT could be stopped from discussing politics, and your reply is, essentially, "that can't be right, the first amendment would protect them!" I agree, of course, as did, thankfully, Justice Kennedy and four of the other justices. The dissenting justices, however, seem to have forgotten about freedom of the press...

Yes. People blame the court for doing the correct (if not right, because courts don't really do "right") thing.

The problem is that there's no constitutional amendment making an exception to the first amendment to limit or forbid contributions to campaigns. It should never have been an ordinary law in the first place.

To be clear, the law does limit contributions to campaigns. What they don't limit is third party organizations spending money on their own ads. Which is as it should be.

Since money is not speech there is no first amendment issue. There is however a conservative court determined to have the wealthy own politicians.

I fundamentally disagree with this, but on different grounds. I absolutely believe that groups of people have fewer rights than individual people. A corporation should have no right against self-incrimination, for instance. An LLC should have no right for freedom of religion. Groups are, by definition, not a monolith, and defending the rights of the group often infringes on the rights of the individual. Extending individual rights to the aggregate is absurd, and the abuses of it lead to the worst outcomes in case-law.

A church shouldn't have freedom of religion?

a church is not a person, it cannot believe in anything. how does a church pray? how does it make a confession?

do not antropomorphize companies, it does not compute at all.

I agree that the church itself doesn't have freedom of religion. But for the members of the church to have freedom of religion they need to be able to exercise their freedom as an organized group. The end result is the same: the government is limited in what restrictions it can place on the group, because to restrict the group is to restrict the members.

I don't understand your argument. The church members individually have the right to practice their religion however they want so long as it doesn't impinge on others' rights or laws. The group aspect really doesn't come into play at all. In the same way, those same individuals can contribute as individuals to whatever cause they choose. The problem is when resources get pooled and an organization rather than its individuals decides where to allocate those resources politically. That's where the parent comment thinks the line should be drawn.

Very few religious people would consider allowing the practice of religion “without the group aspect” to be “freedom of religion.” That freedom, especially in the United States, necessarily encompasses groups of religious people pooling resources to build houses of worship, educate their children, participate in the community, and advocate for causes.

None of that actually requires specific religious protection. Protection of the freedom of religion is necessary when the beliefs of religious groups clash with the values of the community at large - for instance, Christian Scientists do not vaccinate as they avoid modern medicine in general. This is a carve-out to mandatory vaccination programs, in favor of religious freedom.

The group version of this right would be the Church of Christ, Scientist not needing to provide healthcare to its workers (not all of whom may be Christian Scientists themselves), in order to protect their deeply-held beliefs.

> None of that actually requires specific religious protection.

It requires specific religious protection if you're afraid of countries that persecute specific religions and want to take every measure to avoid becoming one. The Pilgrims came to America because of religious persecution. England still has a state church to this day.

I guess what I'm saying sort of agrees with you, but that I'm seeing how "clash with the values of the community at large" could refer to "have any religion except the official one" or even "have a religion". There's a possibility that the community at large could become hostile to many or even all religions in the future.

> The problem is when resources get pooled and an organization rather than its individuals decides where to allocate those resources politically.

Like unions?

Yeah, I wasn't talking about money or political activism, but about freedom of religion.

> But for the members of the church to have freedom of religion they need to be able to exercise their freedom as an organized group.

There is no logic in this sentence. An organised group as an entity doesn't need to be treated the same as a citizen for the freedoms of the members of the group to be respected, I don't understand where is the leap between: rights of a citizen should be extended as rights of a virtual entity that groups citizens. Why?

The sentence is logical, you’re just incorrectly assuming it’s a simple syllogism. The OP isn’t saying that churches need to be treated substitutably with members of the church. But it’s apparent that churches as entities need to be protected in order to protect individual religious freedom. If the government banned mosques (as legal entities) from constructing buildings and holding gatherings, that wouldn’t ban Islam, but it would obviously be an impingement on the religious freedom of Muslims.

Supreme court cases build upon precedent. It sounds like your real issue is with corporate personhood. That was decided in a case that Citizens United built on, so I would recommend barking up that tree instead.

In any case, I personally feel corporate personhood actually does make sense. It’s absurd that I as an individual can engage in speech but if I communicate through a company that I solely own now I can’t.

Trying to “get money out of politics” is a fools’ errand; as Citizens v United demonstrates, speech often requires money. What we really need is the opposite: get politics out of my damn money!

(By the way, most who have been spoonfed the “get money out of politics” line are entirely ignorant on the facts of the CU case. As I recall Hillary Clinton was trying to suppress a documentary critical of her because it was too close to an election. Does that sound like something you’re a fan of?)

Without corporate personhood, you wouldn’t lose any of your rights as an owner (stockholder), employee, or officer of a corporation- you just wouldn’t get to magnify your individual rights by using the power of the corporation. As an individual, you’d still get to speak your mind on whatever. In my opinion, you just shouldn’t be allowed to take the enormous financial power of a corporation and turn it towards your own ends and call it “individual rights”.

The “corporation” in Citizens United was a dinky non-profit. Has the case gone the other way, nothing would stop the government from regulating how the New York Times used its “enormous financial power” for speech.

> In any case, I personally feel corporate personhood actually does make sense. It’s absurd that I as an individual can engage in speech but if I communicate through a company that I solely own now I can’t.

I've always struggled reconciling this with the notion of limited liability. A similar crime does not beget a similar punishment.

Because then you have 2 voices via 2 distinct legal entities - you as a natural person and through controlling your limited company.

You also have an issue with foreign ownership of these entities having directly electoral influence.

On the corporate personhood movement, the problem is that it is cheery picking all of the rights of natural persons while trying to shy away from as much responsibilities as possible. This needs to be re-balanced somewhat.

It's also notable that people who complain about money in politics tend to bring up the Koch brothers most often, but the Koch brothers are an example of individuals spending large sums on speech, not corporations.

Nothing like the very egalitarian principle that says, "One rich man can advocate for his interests, but 100 poor men may not pool their resources to advocate for theirs."

It takes 100 poor men to match the rich guy and that is fairness to you?

What makes more sense is limiting both groups.

Leveling the playing field by banning political speech entirely? I don't really get your suggestion here.

Just like the very egalitarian principle that says, "One rich man can advocate for his interests by himself and by the work of 100 poor man"

the commas in the first amendment make it confusing but

"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."

I think the reading 'Congress shall make no law abridging the freedom of speech' makes more sense linguistically than 'Congress shall make no law abridging the freedom of speech or the right of the people to peacefully assemble', that is to say the freedom of speech is not limited to people by the first amendment.

Although I am in agreement that groups of people must inherently have less rights than the aggregate I believe the commas in the first amendment make it difficult to argue that it limits free speech in this manner.

In a nation with 330 million people, freedom of speech that cannot be aggregated is not freedom of speech. You'd shrink the first amendment to just covering someone arguing in a bar or shouting on the street corner.

> The problem is that there's no constitutional amendment making an exception to the first amendment to limit or forbid contributions to campaigns.

Citizens United wasn’t about campaign contributions. It’s already illegal for corporations to donate to campaigns.

Citizens United was about whether a 501(c)(4) corporation—just like the ACLU or the NAACP—can be prosecuted for releasing a movie critical of a candidate. Justice Kennedy wasn’t analogizing money to speech—the case was whether the government could control political speech by controlling how a corporation used its money in publishing a movie.

Here is the ACLU’s take on a constitutional amendment: https://www.aclu.org/blog/free-speech/campaign-finance-refor...

I would still put Citizens up there. We have rules around elections in the same way that we have some limits on individual speech (yelling fire, and all that) to effect the fundamental right that the First Amendment is meant to protect. Similarly, PACs were an unforeseen (and in some ways unforeseeable to eighteenth century framers) exploit of a well functioning democracy as it relates to people.

Kucho vs. Common Cause as well. Gerrymandering is a clear abuse of the system. Kagan’s dissent is heartbreaking.

Yeah, but updating the constitution and election laws are congress' job, not the courts.

That would assume that there is a working Congress (for the laws) and working intra-state coordination (for constitutional amendments). The reality is that Congress has been locked up ever since the third year of Obama, and since 1971 (26th) there only got one constitutional amendment passed (27th, in 1992).

That is the reason why the courts have gotten so important, and why the Supreme Court and other federal justice nominations and their confirmation by the Trump administration will have such long lasting impact - given that there is no input from the legislative, governing has fallen to the executive and judiciary.

I understand that, but I disagree you should 'force' the SCOTUS to pick up where Congress stops. Scotus is not where laws or society should be progressing; that should be congress.

And of course the founding fathers didn't foresee today's' society, so they included ways to upgrade and amend the constitution and election laws.

That congress isn't doing its job is a different debate entirely, but not Scotus' fault.

The fact you can't move your agenda forward in the legislature because its "locked up" is a feature not a bug. To then think its appropriate to use the judicial branch to bludgeon your agenda through is an abuse of its intended purpose in our system of checks and balances.

So ten years of standstill, even a government shutdown (which is a word only heard in third world countries), because of one political party being utterly unwilling to participate in normal democratic process, that is a feature to you?

> an abuse of its intended purpose in our system of checks and balances

The intention was to stop a dictator from rising, not that the country would be essentially governed by executive degree for a decade.

Citizens United doesn’t have anything to do with PACs.

I’m amenable to the idea there is a core of campaign finance law that’s non-objectionable. But prosecuting a 501(c)(4) non-profit corporation for making a political movie about a candidate isn’t in the scope of that. That’s what the government chose to prosecute in that case. The “slippery slope” outcome—using a law ostensibly meant to keep Exxon from speaking to bludgeon a little non-profit—happened within a decade of the campaign finance law being enacted.

While your statement is strictly true, Citizens United is one of the two (very close together) decisions that enabled the creation of SuperPACs.

Giving money is different than speaking. Do we have a right to anonymous speech amplified according to our means?

Yes, it's called "the press", and freedom of the press is explicitly protected by the government.

Corporations don’t have speech interests.

The majority’s opinion in Citizens United is premised upon the assertion that they do.

Sure they do. Corporations are owned by people, and those people have speech interests. If corporations didn’t have the right to free speech then a group of people campaigning for a politics cause would suddenly lose their right to free speech if they formed a corporation to simplify the activities, such as the joint handling of money or purchasing of ads.

Corporations also get a lot of benefits that individuals or unstructured associations don't - mainly things like liability protection - so it's not like it would be unreasonable to have corresponding limitations on what they are allowed to do.

And that's before we get to the point that corporations, as a practical matter, are formed under state laws, so why is the federal government giving them rights?

(and that's before the other issues with Citizen's United as a case, regardless of the decision as people usually remember it, but I'm starting to go off a bit..)

> And that's before we get to the point that corporations, as a practical matter, are formed under state laws, so why is the federal government giving them rights?

That's an interesting point. Marriages are formed under state law as well, and it doesn't seem controversial to me that the federal government grants that relationship special privileges.

> Marriages are formed under state law as well, and it doesn't seem controversial to me that the federal government grants that relationship special privileges

I think the only reason this isn't controversial is because people don't think about it. The fact that people are conditioned to get married, not to mention the tax benefits, is pretty fucking weird if you stop and think about it. Supposedly our country was meant to separate church and state, but it's obvious it was such a new concept that many of the ideas were stolen from the mores of the conventional religions of the time.

I mean, why is marriage a legal thing at all? Why is the government involved? It made sense when there was a dowry involved, but today? Nobody cares until they realize what a fucking nightmare getting divorced is, and the number of conditions and loopholes is asinine. It's almost like the lawyers invented it, because divorce lawyers make an insane amount of money on the suffering of others (they are heavily incentivized to push for people to be combative, because they make more money that way - and it's easy to rile people up when custody of children is involved).

This is obviously a bit of a rant that went in a weird direction but whatever.

https://www.youtube.com/watch?v=lZTOT6DKfZ8

> The fact that people are conditioned to get married, not to mention the tax benefits, is pretty fucking weird if you stop and think about it.

You might be interested in the concept of the relationship escalator, then.

https://solopoly.net/2012/11/29/riding-the-relationship-esca...

(Disclaimer: I'm not poly, but I really like how poly folk interrogate relationship norms. Don't be scared off by the poly blog!)

No. The owners have speech interests because they are people. The corporation itself does not.

Don't candidates in political campaigns have some limits imposed by law? Amounts you're allowed to spend and so on. Their campaign is a corporation if I'm not mistaken

In a vacuum, it does not seem to follow from the 1st amendment that forming a corporation for financial expedience should also be protected speech. You don't lose speech by forming a new thing without speech if you retain your rights as an individual.

> a group of people campaigning for a politics cause would suddenly lose their right to free speech if they formed a corporation to simplify the activities

This doesn't make any sense. Every person in the group retains their free speech rights and can exercise them however they want, it's only the non-human "person" entity in the form of the corporation that would be limited.

If a state passed a law that corporations may not put a kosher or halal marking on foods they sell, would you find that law constitutional?

(Certainly it's not interfering with the corporation's freedom of religion interests, is it? Corporations don't practice religion!)

The problem here is that there's no simple or intuitive description of the solution we want besides "The right to free speech does not extend to the right to spend unlimited amounts of money on electioneering." (And that should apply to individuals just the same as corporations.) I'd wholeheartedly agree with that, but it needs a constitutional amendment - there isn't another way out.

> If a state passed a law that corporations may not put a kosher or halal marking on foods they sell, would you find that law constitutional?

No, but not for the company, but for the harm that would cause harm to practitioners of their respective religions.

But the companies are under no obligation to include this information. If they are legally forbidden from including it, how does it become a violation of my rights as a practitioner when it is not a violation for them to just not bother?

Though maybe bringing in religion makes this distracting... Do you think a state government may permissibly make a law banning the sale of transgender flags? You're still free to make your own or even sell them as individuals.

Or maybe more directly to Citizen's United - can the government ban all non-indie films that negatively depict the military? Individuals have a free speech right to make whatever films they want, but do corporations?

This is the basic problem with the government’s case in Citizens United. There is no real limiting principle to the law; the government actually prosecuted a dinky little non-profit, not a giant corporation, making for a fantastic test case; and the government admitted at oral argument before the Supreme Court that there was no limiting principle to its theory of the first amendment that would keep the government from banning books.

> kosher or halal marking on foods they sell, would you find that law constitutional

... no? It would be a law more or less targeting a particular religion. That's against both the letter and the spirit of the constitution. Unless I'm missing something here?

> (Certainly it's not interfering with the corporation's freedom of religion interests, is it? Corporations don't practice religion!)

Serious question: Why can't they? They're groups of people after all. (I'm not sure how that would fit with protected classes under federal employment law though. If a company openly supports a particular religion is that potentially a form of discrimination?)

That's the point of the analogy. Rights like freedom of religion and freedom of speech must extend to corporations as well.

I tend to agree, but I think (perhaps mistakenly) that OP was trying to illustrate via analogy that it's more complicated than that. I wasn't able to see the point being made with the analogy though (hence my reply).

I'd see it as infringing on the religious shopper's rights rather than the corporations though. That makes it towards impossible to practice your religion

Preliminarily, I do think such a law would be constitutional. However, you haven’t said why you think it wouldn’t be, so I’m not sure what exactly you’re inviting me to argue.

I think it wouldn't be constitutional on the same grounds as Citizens United, namely, it would be a violation of the right to free speech. If I have a constitutional right as an individual to label things kosher or halal, why would I lose that right if I go into business with some friends? (I'm assuming I have this right as an individual, right?)

I think it is a consistent view that I do lose that right when I incorporate to be clear, and you could probably design a coherent society on that model - I just don't totally follow why / what the constitutional grounds are.

YOU don't lose that right, but the corporation is never given that right

What's the difference, in practice? Not only can the corporation fire me for putting such a label on the food, they must, if such a law exists - if they don't, they're liable.

So, let's say I'm a baker selling, I dunno, kosher cookies. I can sell them to my friends and say, "By the way, these are kosher!" They're popular with my friends, and so I decide to make a business out of it. As soon as I do that, the business is never given the right of free speech, and the business is now given an obligation to prevent me-the-individual from saying certain things in the course of my job duties. That is, if I continue saying the same thing I said yesterday, the government can shut down my business.

You'd say that this is constitutional?

Can corporations put “kosher” markings on food that is not kosher? Isn’t that already a limit on free speech?

I think the answer is that if it's misleading/deceptive they can't under trade practices laws, and yes, I'd certainly call that a restriction on free speech, but it's one that applies equally to individuals and corporations.

It'd be trademark infringement. the circle K thing is a trademark that a private Kosher organization allows companies to put on certified foods after they're satisfied with the inspection (as far as I recall.)

"Corporations" here typically being not for profit corporations such as unions or public advocacy groups (including the eponymous "Citizens United").

We don’t face a binary choice between granting all money-earning organizations speech rights and depriving all public interest non profits of speech rights because we have a legislative process.

Sure, and Congress could potentially draft such legislation, which could be constitutional depending on the specifics, unlike the provisions in the McCain-Feingold act.

The Constitution is legislation.

The cases that were really decided incorrectly were (and I'm afraid I don't know the actual case names offhand) establishing corporate personhood, and most especially making money equivalent to speech.

Yes, and...

The only way to win (on campaign spending) is to not play.

Moot campaign spending with (lowercase) democratic reforms. Public financing of campaigns, time boxing campaign season, restore fairness doctrine, etc.

As Sun Tzu advises, we should not fight on battlefields chosen by our opponents. Fund raising, campaign spending, mainstream media, Freedom Speeches™, presidential debates, ad nauseam, are all tar pits.

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