It Seems Appropriate…


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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19 Responses

  1. Well, it does contain a clause saying that it shall not be construed to restrict freedom of speech and of the press. <end sarcasm>

    Ugh. I only see three possible outcomes if something like this were ever enacted:

    1.  Because of the above-referenced clause, it will swiftly be rendered meaningless when a media company successfully defends an attempt to censor it on the basis that to do so would restrict freedom of the press.  Since the amendment does not distinguish between freedom of speech and freedom of the press, it would not take long thereafter for that ruling to be extended to other types of corporations.

    2. The nightmare scenario you reference above happens.

    3. The language is amended before being ratified to create a narrow exception for media corporations under the guise of making sure freedom of the press is not harmed.  Because the exception would need to be narrow in order to avoid outcome 1, the exception would simply wind up being a form of protectionism for the big media outlets, aka crony capitalism.Report

    • Avatar Burt Likko in reply to Mark Thompson says:

      Yeah, that’s pretty much right. Any of those are nightmare scenarios, which is why I think you’d have to be stoned to think this proposed Constitutional amendment was a good idea.Report

  2. Avatar Rose says:

    I have no idea what’s going on with this, so forgive a naive question. Couldn’t a corporation’s property be protected as the property of the owners of the corporation? And any speech act protected as the speech of the person who wrote it?Report

    • Avatar Mark Thompson in reply to Rose says:


      That is more or less the rationale that underlies my predicted outcome 1.Report

      • Avatar Will H. in reply to Mark Thompson says:

        To build on Rose’s point a little further:
        This is precisely the manner of the pleading requirements for conspiracy involving a corporation.
        A corporation cannot enter into a conspiracy with itself or with any of its subsidiaries.
        The pleading requirement may be met by naming the principals and officers as conspirators.
        However, I remember reading about a case which was dismissed as a summary judgment for naming only the principals and officers of a corporation. IIRC, the reasoning was that the business conducted by the principals and officers of a corporation were essentially the same as the business being conducted by the corporation itself.Report

    • Avatar James K in reply to Rose says:

      I used the same reasoning to explain why the “corporations aren’t people” objection to Citizens United rings hollow to me.Report

      • Avatar Mike Schilling in reply to James K says:

        In corporations, management and ownership of assets are divorced.   In the vast majority of cases, management’s role is to produce profits, not to buy elections.  Allowing management to use those assents for political purposes, absent express authorization to do so from the owners, cannot be justified morally, ethically, or legally.  This principle would have decided in favor of Citizens United, which was doing exactly what it was chartered to do, without extending the same privilege to Exxon, Google, and Haliburton.Report

        • Avatar DavidTC in reply to Mike Schilling says:

          Indeed, which is where this entire thing is stupid. There are two unrelated problems, neither of which need the constitutional amendment that’s been proposed:

          1) Corporations are spending stockholders money on political stuff. We no more need a constitutional amendment to make that illegal than we do to make it illegal for them to spend it on hookers and blow for CEOs. In fact, spending money on political pet projects arguable already _is_ illegal unless it furthers some corporate interest.

          Solution: Laws asserting that all for-profit corporations are, unless otherwise stated, politically neutral, and cannot take political stances at all without the consent of all their owners. Or they can change their articles of corporation or whatever to be explicitly political.

          Non-profits usually already have some sort of goal, and can obviously take political positions to attempt to reach that goal, and I have no problem with a for-profit company that also take political positions, as long as it’s made clear well in advance that it does so so the owners know about it, or can sell their ownership in a company that has decided to take pet projects of the super-rich over actual profits for owners.

          And under no circumstances should this been done secretly, without full disclosure. Not because corporations don’t have a ‘right to anonymous speech’, from a first amendment direction, but because corporations have no right to do _anything_ in secret from their owners, anymore than your car has the right to keep things secret from you. (OTOH, privately owned corporations might manage to keep secret from the public what they are doing.)

          2) Apparently no campaign spending limits are constitutional.

          Solution: First off, restricting corporations here will result in just rich individuals having the ability to have unlimited spending, which is a rather ass-backwards ‘solution’. Some rich guy can buy an ad on TV, but I can’t make a non-profit, collect donations, and run an ad to counter it? Gee, thanks.

          This is what needs a goddamn constitutional amendment. But it doesn’t need the one proposed to solve ‘this problem’, which is about corporate personhood, which has nothing to do with anything.

          This whole constitutional amendment thing is the greatest example of people going ‘Full-on stupid’ I’ve ever seen.Report

  3. Avatar b-psycho says:

    How come none of these people so worked up about the combination of unlimited speech & corporate privilege targets the corporate privilege instead of the unlimited speech?Report

  4. Avatar Jaybird says:

    What I see happening is an individual blogger (or, maybe, a group of bloggers! (SHOUT OUT TO MY PEEPS)) gets shut down because they have ads or Amazon links or something.Report

  5. Avatar Stillwater says:

    Only slightly related, but this reminds me of a case in Boulder where the University directive to prevent access to CU during the 4/20 smoke out to anyone not employed by or attending the University of Colorado (which is a public space!) was sustained. I think it was on public safety grounds – not sure about that. But what’s weird is that the law is being invoked to limit access to the illegal pot smoking party on campus to only those who are members of the right club!Report

  6. Avatar North says:

    It’s somewhat moot since the odds of approval are somewhere between Godzilla invading New York and Betty White flapping her arms and flying to the moon.

    Frankly is there a bigger waste of political time in this country than trying to get a constitutional ammendment enacted?Report

  7. Avatar Mike Schilling says:

    IANAL, but this seems like a contradiction

    1. There were media corporations for centuries before Citizens United
    2. Citizens United cannot be undone without destroying media corporations


  8. Avatar Simon K says:

    I like how they skipped freedom of association in clause 3. Apparently their drafter’s last living brain cell noticed the contradiction.Report